[Cites 36, Cited by 0]
Madhya Pradesh High Court
Bhagwandas Kataria Alias Bebu Kataria vs The State Of Madhya Pradesh on 10 March, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
ON THE 10th OF MARCH, 2026
MISC. CRIMINAL CASE No. 11109 of 2026
BHAGWANDAS KATARIA ALIAS BEBU KATARIA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Anil Khare, Senior Advocate with Shri Udit Maindiretta and Shri
Dev Kumar Ramchandani, learned counsel for the applicant.
Shri Harpreet S Ruprah, Addl. A.G. with Shri Himanshu Tiwari, Shri
Adwitya Parashar and Shri Aditya Gupta, counsel for respondent.
ORDER
This is second application filed on behalf of the applicant under
Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for
grant of anticipatory bail apprehending his arrest in relation to Crime
No.54/2026 registered at Police Station - Garha District Jabalpur (M.P.) for
the offence punishable under Sections 25 and 35 of Arms Act, 1959. His
earlier bail application was dismissed as withdrawn and not pressed vide
order dated 26.02.2026 passed in M.Cr.C.No.8919/2026.
2. As per prosecution story, at the time of patrolling near Sharda Chowk
one informant gave information to the police that at Suvidha Market
Chaupati one person aged 20-22 years is in possession of button knife and is
using the same to intimidate the public who is passing nearby. The police
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authorities with the help of person passing by grabbed one Nikhil Patel and
on frisking him two button knives were found in his possession. The accused
Nikhil Patel admitted that he is not having any license to carry the knives and
accordingly the knives were seized at 9.22 pm on24.01.2026. The accused
Nikhil Patel then informed the Police Authorities that he has purchased the
said knives from one Poornima General Store which is run by one Shri
Brajesh Sahu. The Police Authorities then searched the premises of Poornima
General Store and found 50 button knives which were later seized. The
seizure of the knives from Poornima General Store was done at around 11.04
pm on 24.01.2026. The accused Brajesh Sahu then informed the Police
Authorities that he has purchased the stock of button knives from Vijay
General Store from the owner Bebu Kataria alias Bhagwandas Kataria. The
accused Brajesh Sahu then informed that whatsapp chat with the applicant is
present in his phone and the mobile phone was also seized by the Police
Authorities. The accused Nikhil Patel and Brajesh Sahu were then taken into
custody. The FIR speaks about the alleged non-cooperation by the
family members of the applicant and inability to trace him at his residence or
near the shop.
3. Learned counsel for the has submitted that on earlier occasion when the
court was not inclined to grant anticipatory bail, more particularly, after
appreciating the submission made by learned Addl. A.G. Mr. Ruprah that
there is notification of 1972 regarding the size of the weapon which is
covered under the provisions of section 25 and 5 of the Arms Act. He has
submitted that the notification is wrongly relied by the counsel for the State
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and as it was pointed out during the course of argument, he could not verify
the contents of that notification and, therefore, he has withdrawn earlier
application. He has submitted that rest of the arguments on merit including
the argument that the police authority has not complied with the mandatory
direction under section 41 and 41-A of the Cr.P.C in the facts of the present
case. As per his submission, the maximum punishment for the offence can
be upto five years and, therefore, considering the judgment of Arnesh Kumar
Vs. State of Bihar and another- (2014) 8 SCC 273 and judgment of Satender
Kumar Antil Vs. Central Bureau of Investigation and another- (2022) 10
SCC 51 such matter is required to be considered appropriately on the count
regarding non-compliance of section 41A. He has further submitted that on
reading of the notification shows that it is not applicable as a bare reading of
FIR indicates that no rule is attributed to the present applicant that he has
sold any goods in the public place and the shop of the applicant or mobile
transaction made by the applicant cannot be considered as a public place as
required under the law and he has referred to the judgement in the case of
Subhash Singh Tomar Vs. State of Madhya Pradesh- 2024, SCC online MP
9086 (relevant para 2,5,6 ) as well as the judgement of Madhya Pradesh High
Court of Indore bench dated 26-12-2023 passed in Criminal Appeal Number
841 of 2012 (Deepak Sen Vs. The State of Madhya Pradesh) relevant
paragraphs 9,10,11 . He has also submitted that in view of the judgement of
MP High Court, the second bail application for anticipatory bail is
maintainable. Even if earlier application was rejected on merit or was
dismissed on account of having been withdrawn or not pressed. He has relied
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on the judgement M.P High Court in Imratlal Vishwakarma and others Vs.
State of M.P.- 1996, SCC online, MP page 59, paragraph 3 and 5 are
relevant. He has also submitted that the Supreme Court in the case of Rani
Dudeja Vs. State of Haryana- (2017)-13 SCC, page 555 (relevant paragraph
No.3) has also confirmed this view that second bail petition for anticipatory
bail is maintainable. He has also submitted that while considering application
for anticipatory bail, court has to consider the ratio of the judgement of
Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others-(2011) 1
SCC 694 (The relevant paragraph 84, 85, 113 and 116) and also judgement
of Sushila Aggarwal and others Vs. State of (NCT of Delhi) and another-
(2020) 5 SCC-1 (the relevant paragraph 60.4, 63, 73, 75, 85, 91, 92). He has
also contended that the applicant has already cooperated in the process of
investigation. He has referred to the conversation made during the search
which is carried out at his shop during the course of investigation, transcript
of which, is reproduced in the memo of petition. He has submitted that when
the applicant is cooperating, there is no question of non-cooperation from the
applicant, and therefore, in view of this since there is no bar, for second
bail application for anticipatory bail, his case may be considered, more
particularly, considering fact that the same notification is not applicable at all
and therefore he prays to consider his case by allowing this application.
4. The counsel for the respondent, Mr. Ruprah, learned Addl. A.G has
strongly opposed the prayer by saying that there is no change in
circumstances as earlier also the similar set of arguments were made by the
applicant and, therefore, it cannot be said that there is any change in
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circumstances for filing such application for anticipatory bail. Though there
is no bar to entertain second bail application for anticipatory bail but then
there should be some change in circumstances. The counsel for state has also
referred to section 7 of the Arms Act by submitting that even by making
such offer for sale of such weapon which is prohibited, is also made offence
under section 7 of the Act and, therefore, considering the present scenario
whereby day-by-day the crime is increased in the society where even young
boys are using the knife, even in minor scuffle, had arisen between the two
person and by providing such weapon by way of selling the same and
considering the fact that there is sufficient material available on the record by
way of whatsapp chat which is produced on record, the case of applicant is
not required to be considered, more particularly, applicant cannot repeatedly
approach this court without any substantial change in circumstances. By
merely making reckless allegation that the earlier notification which is cited
on behalf of State government is not squarely applicable. He has further
submitted that on merit as well as on non-maintenance of the second bail
application for anticipatory bail, in absence of any substantial change in
circumstances, the present petition is required to be dismissed. He further
submits that applicant is not cooperating since long and when the police has
visited the place of the applicant, the family member of the applicant has
informed that the applicant is not available as he is out of station and,
therefore, the Ferrari memo is also prepared and therefore on that count also
when the applicant is not cooperating in the process of investigation and after
rejection of earlier application also he has not offered himself before the
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investigating agency for necessary investigation, therefore, his case should
not be considered.
5. I have considered the rival submission made by the parties. I have also
considered the case diary which is available on the record. It transpires from
the record that on earlier occasion when almost on the same ground, matter
was argued at length by the Senior counsel Mr. Khare and learned Addl. A.G
Mr. Ruprah for State and since this court was not inclined to grant any relief
by considering application for anticipatory bail, the counsel for applicant,
upon instruction had withdrawn the application vide order dated 26.02.2026.
On that day also the almost all these contentions raised by the counsel for
the applicant; considering the material available in the record and
considering the fact that the provisions of Arms Act, more particularly,
section 5, section 7 and section 25 of the Arms Act and considering the
material from the whatsapp chat and also considering the other material
which prima facie indicates the active role played by the present applicant in
the crime in question and, therefore, considering the seriousness of the
matter, this court is of the view that the necessary investigation is required to
be carried out. Court has considered the submission that the second bail
application is maintainable. The counsel for applicant has heavily relied on
the judgement of Hon'ble Apex Court in Rani Dudeja (supra) for this
purpose of which paragraph No.3 is relevant which is reproduced as under :-
"3. We are afraid, the stand taken by the High Court
cannot be appreciated. The petition was for anticipatory bail and
the one which had been filed earlier might have been withdrawn in
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a given situation, without inviting the Court to consider the same
on merits. On change of circumstances, when another application
under section 438 Cr.P.C was filed, the High Court should have
considered the same on merits. The principle of res judicata could
not have operated in an application for bail."
6. In regard to the argument regarding "public place", learned counsel for
the applicant has relied on the judgement in the case of Subhash Singh
Tomar (supra). The relevant paragraphs reads as under:
"2. According to the petitioner, the State Government
sponsored the event at Nehru Stadium Indore on 09.09.2024 in
which the Chief Minister was the chief guest. In the said event, a
world record was to be set by wielding a sword by 5000 women in
public place. The wielding of sword in a public place amounts to
possession of the arm and punishable under Section 25(1-b)(b) of
the Arms Act, 1959. The petitioner made a representation to the
Commissioner of Police, the Divisional Commissioner of Indore
and District Magistrate of Indore, that in future several type
of organizations be held keeping in mind the Gazette Notification
No. 6312- 6552-II-BB (i) dated 22nd November 1974, issued by
the State of M.P. According to the petitioner despite to the fact
that such an illegal event has taken place, but no criminal case has
been registered by the Police against
anyone.
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5. The entire petition is based on two paper news published
in Patrika filed as [Annexure P/1 and P/2]. It is settled law that no
cognizance can be taken on the basis of paper news. In the first
photograph [Annexure P/1] certain ladies are visible carrying a
sword in their hands. This photograph nowhere establishes that
they were assembled at public place. To attract the Section 25 (1-
b)(b) of the Arms Act, person should be in possession of
arm within the definition of 2(c) i.e., sharp edged. It is also not
clear from the photograph that they were carrying a sword which
can comes under the definition of the arms being a sharp edged.
6. To attract Section 25(1-b)(b), whosoever acquires, has in
his possession or carries in any place specified by the notification
under Section 4 any arms of such class or description as has been
notified by the Government. As per Gazette Notification No.
6312-6552-II-BB (i) 22nd November 1974, issued by the State of
M.P. in exercise of powers conferred by Section 4 of the Arms
Act, the acquisition, possession and carrying of sharp edged
weapon with a blade more than 6 inch long or two inch wide
and spring actuated knifes with a blade of any size in public place
shall be a punishable offence under Section 25 (1-b)(b) of the
Arms Act, therefore, it is not clear from the photograph that
women were carrying actual weapon or imitation sword. The
petitioner was not present on the place of event hence he cannot
say that the swords were sharp edged, hence same cannot
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be established from the photographs. It is also not clear whether
the Nehru Stadium where this organization was held open to
public or limited to the participation only. No such valid record
certification has been filed alongwith the writ petition. Therefore,
in absence of these necessary materials, the writ petition is not
liable to be entertained."
Similarly in Deepak Sen (supra), this court held as under :-
"9 Further, in view of notification No.6312-6552-II-B
(I) Dated The 22nd November, 1974 of Arms Act, 1959, it
is evident that one essential ingredient for constituting
offence under Section 25(1-B)(b) of Arms Act, 1959 is recovery
of sharp edged weapon of specified specifications from
"public place".
10 In the instant case, admittedly, sword has been
allegedly recovered from appellant's hair salon shop which is
owned and possessed by the appellant. Hence, it cannot be said
that sword has been recovered from any public place.
Further, from discussion in the foregoing paras, it is also evident
that it is not established from evidence on record that
sword allegedly recovered from the appellant, has been used
to commit instant crime. In view of above also, it cannot be
said that appellant carried above sword in public place at any
point of time.
11 Thus, from discussion in the preceding paras, it is clearly
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established that it is not proved from the evidence on record that
the alleged sword has been recovered from appellant's possession,
especially, in any public place. Hence, ingredients essential to
constitute offence under Section 25(1-B)(b) of Arms Act, 1959, is
clearly missing in the instant case.
7. With regard to argument regarding rights and safeguards,
learned counsel has relied on the judgment in the case of
Siddharam Satlingappa (supra) . The relevant paragraphs of which
reads as under :-
"84. Just as the Liberty is precious to an individual, so is the
society's interest in maintenance of peace, law and order. Both are
equally important.
85. It is a matter of common knowledge that a large number
of undertrials are languishing in jail for a long time even for
allegedly committing very minor offences. This is because section
438 Cr.P.C. has not been allowed its full play. The Constitution
Bench in Sibbia's case (supra) clearly mentioned that section 438
Cr.P.C. is extraordinary because it was incorporated in the Code of
Criminal Procedure, 1973 and before that other provisions for
grant of bail were sections 437 and 439 Cr.P.C. It is not
extraordinary in the sense that it should be invoked only in
exceptional or rare cases. Some courts of smaller strength have
erroneously observed that section 438 Cr.P.C. should be invoked
only in exceptional or rare cases. Those orders are contrary to the
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law laid down by the judgment of the Constitution Bench in
Sibbia's case (supra). According to the report of the National
Police Commission, the power of arrest is grossly abused and
clearly violates the personal liberty of the people, as enshrined
under Article 21 of the Constitution, then the courts need to take
serious notice of it. When conviction rate is admittedly less than
10%, then the police should be slow in arresting the accused. The
courts considering the bail application should try to maintain fine
balance between the societal interest vis-`-vis personal liberty
while adhering to the fundamental principle of criminal
jurisprudence that the accused that the accused is presumed to be
innocent till he is found guilty by the competent court.
113. The arrest should be the last option and it should be
restricted to those exceptional cases where arresting the accused is
imperative in the facts and circumstances of that case. The court
must carefully examine the entire available record and particularly
the allegations which have been directly attributed to the accused
and these allegations are corroborated by other material and
circumstances on record.
116. Personal liberty is a very precious fundamental right
and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the case."
8. With regard to the argument highlighting grant of anticipatory
bail, learned counsel for the applicant relied on the judgment in
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the case of Sushila Aggarwal (supra). The relevant paragraphs of
which reads as under :-
"60.4 Imposing time limits (till filing of FIR, or filing of
charge-sheet etc) would enable the court- which is seized of the
main case and monitors it, to consider the nature and gravity of the
offence, having regard to the fresh materials unearthed and
included as prosecution evidence. Therefore, it would be salutary
and in public interest to require courts to impose time limits for
the life of orders of anticipatory bail the event of filing of FIR or
charge sheet, are essential ingredients to an order under Section
438. (Salauddin, K.L. Verma, and Adri Dharan Das). Some
decisions have also stressed that economic offences need a
different approach and therefore, anticipatory bail should not be
granted readily.
63. Clearly, therefore, where the Parliament wished to
exclude or restrict the power of courts, under Seciton 438 of the
Code, it did so in categorical terms. Parliament's omission to
restrict the right of citizens, accused of other offences from the
right to seek anticipatory bail, necessarily leads one to assume that
neither a blanket restriction can be read into by this court, nor can
inflexible guidelines in the exercise of discretion, be insisted
upon- that would amount to judicial legislation.
73. As regards the concern expressed on behalf of the
state and the Union- that unconditional orders (i.e. those unrelated
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to a particular time frame) would result in non-co-operation of the
accused, with the investigating officer or authority, or that there
would be reluctance to make statements to the prosecution, to
assist in the recovery of articles that incriminate the accused (and
therefore can be used under Section 27, Evidence Act), this court
perceives such views to be vague and based apparently pre-
conceived notions. If there is non-cooperation by an accused - in
the course of investigation, the remedy of seeking assistance of
the court exists. Moreover, on this aspect too, Sibbia had
envisioned the situation; the court had cited State of U.P. v
Deoman Upadhyaya42, where this court had observed as follows:
"When a person not in custody approaches a police officer
investigating an offence and offers to give information leading to
the discovery of a fact, having a bearing on the charge which may
be made against him he may appropriately be deemed to have
surrendered himself to the police. Section 46 of the Code of
Criminal Procedure does not contemplate any formality before a
person can be said to be taken in custody : submission to the
custody by word or action by a person in sufficient. A person
directly giving to a police officer by word of mouth information
which may be used as evidence against him, may be deemed to
have submitted himself to the "custody" of the police officer
within the meaning of Section 27 of the Indian Evidence Act :
Legal Remembrancer v Lalit Mohan Singh ((1921) I.L.R. 49
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Cal.167), Santokhi Beldar v. King Emperor ((1933) I.L.R. 12 Pat.
241). Exceptional cases may certainly be imagined in which a
person may give information without presenting himself before a
police officer who is investigating an offence. For instance, he
may write a letter and give such information or may send a
telephonic or other message to the police officer." This view was
reiterated and applied in Vallabhdas Liladhar v Asst. Collector of
Customs43. The observations in Sibbia (supra) are relevant, and
are reproduced again, for facility of reference:
"One of such conditions can even be that in the event of the
police making out a case of a likely discovery under Section 27 of
the Evidence Act, person released on bail shall be liable to be
taken in police custody for facilitating the discovery. Besides, if
and when the occasion arises, it may be possible for the
prosecution to claim the benefit of Section 27 of the Evidence Act
in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P. v Deoman Upadhyaya."
Therefore, the "limited custody" or "deemed custody" to facilitate
the requirements of the investigative authority, would be sufficient
for the purpose of fulfilling the provisions of Section 27, in the
event of recovery of an article, or 1961 (1) SCR 14 1965 (3) SCR
854 discovery of a fact, which is relatable to a statement made
during such event (i.e deemed custody). In such event, there is no
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question (or necessity) of asking the accused to separately
surrender and seek regular bail.
75. For the above reasons, the answer to the first question
in the reference made to this bench is that there is no offence, per
se, which stands excluded from the purview of Section 438, -
except the offences mentioned in Section 438 (4). In other words,
anticipatory bail can be granted, having regard to all the
circumstances, in respect of all offences. At the same time, if there
are indications in any special law or statute, which exclude relief
under Section 438 (1) they would have to be duly considered.
Also, whether anticipatory offences should be granted, in the
given facts and circumstances of any case, where the allegations
relating to the commission of offences of a serious nature, with
certain special conditions, is a matter of discretion to be exercised,
having regard to the nature of the offences, the facts shown, the
background of the applicant, the likelihood of his fleeing justice
(or not fleeing justice); likelihood of co-operation or non-co-
operation with the investigating agency or police, etc. There can
be no inflexible time frame for which an order of anticipatory bail
can continue.
85. Having regard to the above discussion, it is clarified
that the court should keep the following points as guiding
principles, in dealing with applications under Section 438, Cr.
PC:
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(a) As held in Sibbia, when a person apprehends arrest and
approaches a court for anticipatory bail, his apprehension (of
arrest), has to be based on concrete facts (and not vague or general
allegations) relatable a specific offence or particular of offences.
Applications for anticipatory bail should contain clear and
essential facts relating to the offence, and why the applicant
reasonably apprehends his or her arrest, as well as his version of
the facts. These are important for the court which considering the
application, to extent and reasonableness of the threat or
apprehension, its gravity or seriousness and the appropriateness of
any condition that may have to be imposed. It is not a necessary
condition that an application should be moved only after an FIR is
filed; it can be moved earlier, so long as the facts are clear and
there is reasonable basis for apprehending arrest.
(b) The court, before which an application under Section 438, is
filed, depending on the seriousness of the threat (of arrest) as a
measure of caution, may issue notice to the public prosecutor and
obtain facts, even while granting limited interim anticipatory bail.
(c) Section 438 Cr. PC does not compel or oblige courts to impose
conditions limiting relief in terms of time, or upon filing of FIR,
or recording of statement of any witness, by the police, during
investigation or inquiry, etc. While weighing and considering an
application (for grant of anticipatory bail) the court has to consider
the nature of the offence, the role of the person, the likelihood of
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his influencing the course of investigation, or tampering with
evidence (including intimidating witnesses), likelihood of fleeing
justice (such as leaving the country), etc. The courts would be
justified - and ought to impose conditions spelt out in Section 437
(3), Cr.PC [by virtue of Section 438 (2)]. The necessity to impose
other restrictive conditions, would have to be weighed on a case
by case basis, and depending upon the materials produced by the
state or the investigating agency. Such special or other restrictive
conditions may be imposed if the case or cases warrant, but should
not be imposed in a routine manner, in all cases. Likewise,
conditions which limit the grant of anticipatory bail may be
granted, if they are required in the facts of any case or cases;
however, such limiting conditions may not be invariably imposed.
(d) Courts ought to be generally guided by the
considerations such nature and gravity of the offences, the role
attributed to the applicant, and the facts of the case, while
assessing whether to grant anticipatory bail, or refusing it.
Whether to grant or not is a matter of discretion; equally whether,
and if so, what kind of special conditions are to be imposed (or not
imposed) are dependent on facts of the case, and subject to the
discretion of the court.
(e) Anticipatory bail granted can, depending on the conduct
and behavior of the accused, continue after filing of the charge
sheet till end of trial. Also orders of anticipatory bail should not be
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"blanket" in the sense that it should not enable the accused to
commit further offences and claim relief. It should be confined to
the offence or incident, for which apprehension of arrest is sought,
in relation to a specific incident. It cannot operate in respect of a
future incident that involves commission of an offence.
(f) Orders of anticipatory bail do not in any manner limit or
restrict the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is
granted pre-arrest bail.
(g) The observations in Sibbia regarding "limited custody"
or "deemed custody" to facilitate the requirements of the
investigative authority, would be sufficient for the purpose of
fulfilling the provisions of Section 27, in the event of recovery of
an article, or discovery of a fact, which is relatable to a statement
made during such event (i.e. deemed custody). In such event, there
is no question (or necessity) of asking the accused to separately
surrender and seek regular bail. Sibbia (supra) had observed that
"if and when the occasion arises, it may be possible for the
prosecution to claim the benefit of Section 27 of the Evidence Act
in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P. v Deoman Upadhyaya."
(h) It is open to the police or the investigating agency to
move the court concerned, which granted anticipatory bail, in the
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first instance, for a direction under Section 439 (2) to arrest the
accused, in the event of violation of any term, such as absconding,
non-cooperating during investigation, evasion, intimidation or
inducement to witnesses with a view to influence outcome of the
investigation or trial, etc. The court - in this context is the court
which grants anticipatory bail, in the first instance, according to
prevailing authorities.
(i) The correctness of an order granting bail, can be
considered by the appellate or superior court at the behest of the
state or investigating agency, and set aside on the ground that the
court granting it did not consider material facts or crucial
circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad
Vishwanath Gupta & Anr52; Jai Prakash Singh (supra) State
through C.B.I. vs. Amarmani Tripathi53 ). This does not amount
to "cancellation" in terms of Section 439 (2), Cr. P.C.
(j) The judgment in Mhetre (and other similar decisions)
restrictive conditions cannot be imposed at all, at the time of
granting anticipatory bail are hereby overruled. Likewise, the
decision in Salauddin and subsequent decisions (including K.L.
Verma, Nirmal Jeet Kaur) which state that such restrictive
conditions, or terms limiting the grant of anticipatory bail, to a
period of time are hereby overruled.
91. In view of the concurring judgments of Justice M.R.
Shah and of Justice S. Ravindra Bhat with Justice Arun Mishra,
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Justice Indira Banerjee and Justice Vineet Saran agreeing with
them, the following answers to the reference are set out:
(1) Regarding Question No. 1, this court holds that the
protection granted to a person under Section 438 Cr. PC should
not invariably be limited to a fixed period; it should inure in
favour of the accused without any restriction on time. Normal
conditions under Section 437 (3) read with Section 438 (2) should
be imposed; if there are specific facts or features in regard to any
offence, it is open for the court to impose any appropriate
condition (including fixed nature of relief, or its being tied to an
event) etc. (2) As regards the second question referred to this
court, it is held that the life or duration of an anticipatory bail
order does not end normally at the time and stage when the
accused is summoned by the court, or when charges are framed,
but can continue till the end of the trial. Again, if there are any
special or peculiar features necessitating the court to limit the
tenure of anticipatory bail, it is open for it to do so.
92. This court, in the light of the above discussion in the
two judgments, and in the light of the answers to the reference,
hereby clarifies that the following need to be kept in mind by
courts, dealing with applications under Section 438, Cr. PC:
(1) Consistent with the judgment in Shri Gurbaksh Singh
Sibbia and others v. State of Punjab 54, when a person complains
of apprehension of arrest and approaches for order, the application
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should be based on concrete facts (and not vague or general
allegations) relatable to one or other specific offence. The
application seeking anticipatory bail should contain bare essential
facts relating to the offence, and why the applicant reasonably
apprehends arrest, as well as his 1980 (2) SCC 565 side of the
story. These are essential for the court which should consider his
application, to evaluate the threat or apprehension, its gravity or
seriousness and the appropriateness of any condition that may
have to be imposed. It is not essential that an application should be
moved only after an FIR is filed; it can be moved earlier, so long
as the facts are clear and there is reasonable basis for
apprehending arrest.
(2) It may be advisable for the court, which is approached
with an application under Section 438, depending on the
seriousness of the threat (of arrest) to issue notice to the public
prosecutor and obtain facts, even while granting limited interim
anticipatory bail.
(3) Nothing in Section 438 Cr. PC, compels or obliges
courts to impose conditions limiting relief in terms of time, or
upon filing of FIR, or recording of statement of any witness, by
the police, during investigation or inquiry, etc. While considering
an application (for grant of anticipatory bail) the court has to
consider the nature of the offence, the role of the person, the
likelihood of his influencing the course of investigation, or
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22 MCRC-11109-2026
tampering with evidence (including intimidating witnesses),
likelihood of fleeing justice (such as leaving the country), etc. The
courts would be justified - and ought to impose conditions spelt
out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The
need to impose other restrictive conditions, would have to be
judged on a case by case basis, and depending upon the materials
produced by the state or the investigating agency. Such special or
other restrictive conditions may be imposed if the case or cases
warrant, but should not be imposed in a routine manner, in all
cases. Likewise, conditions which limit the grant of anticipatory
bail may be granted, if they are required in the facts of any case or
cases; however, such limiting conditions may not be invariably
imposed.
(4) Courts ought to be generally guided by considerations
such as the nature and gravity of the offences, the role attributed to
the applicant, and the facts of the case, while considering whether
to grant anticipatory bail, or refuse it. Whether to grant or not is a
matter of discretion; equally whether and if so, what kind of
special conditions are to be imposed (or not imposed) are
dependent on facts of the case, and subject to the discretion of the
court.
(5) Anticipatory bail granted can, depending on the conduct
and behavior of the accused, continue after filing of the charge
sheet till end of trial.
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23 MCRC-11109-2026
(6) An order of anticipatory bail should not be "blanket" in
the sense that it should not enable the accused to commit further
offences and claim relief of indefinite protection from arrest. It
should be confined to the offence or incident, for which
apprehension of arrest is sought, in relation to a specific incident.
It cannot operate in respect of a future incident that involves
commission of an offence.
(7) An order of anticipatory bail does not in any manner
limit or restrict the rights or duties of the police or investigating
agency, to investigate into the charges against the person who
seeks and is granted prea rrest bail.
(8) The observations in Sibbia regarding "limited custody"
or "deemed custody" to facilitate the requirements of the
investigative authority, would be sufficient for the purpose of
fulfilling the provisions of Section 27, in the event of recovery of
an article, or discovery of a fact, which is relatable to a statement
made during such event (i.e deemed custody). In such event, there
is no question (or necessity) of asking the accused to separately
surrender and seek regular bail. Sibbia (supra) had observed that
"if and when the occasion arises, it may be possible for the
prosecution to claim the benefit of Section 27 of the Evidence Act
in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P. v Deoman Upadhyaya."
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24 MCRC-11109-2026
(9) It is open to the police or the investigating agency to
move the court concerned, which grants anticipatory bail, for a
direction under Section 439 (2) to arrest the accused, in the event
of violation of any term, such as absconding, non cooperating
during investigation, evasion, intimidation or inducement to
witnesses with a view to influence outcome of the investigation or
trial, etc.
(10) The court referred to in para (9) above is the court
which grants anticipatory bail, in the first instance, according to
prevailing authorities.
(11) The correctness of an order granting bail, can be
considered by the appellate or superior court at the behest of the
state or investigating agency, and set aside on the ground that the
court granting it did not consider material facts or crucial
circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad
Vishwanath Gupta & Anr55; Jai Prakash Singh (supra) State
through C.B.I. vs. Amarmani Tripathi 56 ). This does not amount
to "cancellation" in terms of Section 439 (2), Cr. PC.
(12) The observations in Siddharam Satlingappa Mhetre v.
State of Maharashtra & Ors57 (and other similar judgments) that
no restrictive conditions at all can be imposed, while granting
anticipatory bail are hereby overruled. Likewise, the decision in
Salauddin Abdulsamad Shaikh v. State of Maharashtra 58 and
subsequent decisions (including K.L. Verma v. State & Anr59;
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25 MCRC-11109-2026
Sunita Devi v. State of Bihar & Anr 60; Adri Dharan Das v. State
of West Bengal61; Nirmal Jeet Kaur v. State of M.P. & Anr62;
HDFC Bank Limited v. J.J. Mannan 63; Satpal Singh v. (2011) 6
SCC 189 (2005) 8 SCC 21 2011 (1) SCC 694 (1996 (1) SCC 667)
1998 (9) SCC 348 2005 (1) SCC 608 2005 (4) SCC 303 2004 (7)
SCC 558 2010 (1) SCC 679 the State of Punjab64 and Naresh
Kumar Yadav v Ravindra Kumar65) which lay down such
restrictive conditions, or terms limiting the grant of anticipatory
bail, to a period of time are hereby overruled."
9. There is no quarrel about the fact that there is no possibility of
maintainability. Counsel for applicant has also referred to the
judgement in the case of Imrat Lal Vishwakarma (supra), wherein
from para-10 to 20 the court has discussed in detail about the
scope of such application which are reproduced as under :-
10. Therefore, petitioner can, even if the first application
filed under Section 438, Criminal Procedure Code is rejected, file
a fresh application under Section 438, Criminal Procedure Code
and obviously, the principle of res judicata would not apply in
such a matter. If the application has been filed on the same
grounds which had already been considered earlier while rejecting
the first bail application, it can be rejected summarily on the
ground that the same grounds have been re-agitated in the fresh
petition and the petition has not been moved on any new ground.
However, it shall have to be considered in each petition on the
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facts and circumstances of that case that the said aspects had been
pressed into service in the previous petition which was rejected
and no new ground has been shown to exist for releasing the
petitioner on bail under Section 438, Criminal Procedure Code.
This can be determined only on the facts and circumstances of
each case and the Court has to decide as to whether the fresh
petition has been filed on the same grounds which were
considered and not accepted, or rejected in the previous petition
and no new ground has been made out in the second application.
In our opinion, to say that the second application filed under
Section 438, Criminal Procedure Code would not be tenable,
would be laying down something which is not there in codified
and legislated legislation.
11. While holding that second application filed under
Section 438, Criminal Procedure Code would not be tenable, it
was observed by Hon'ble Single Judge of this Court (Hon'ble
P.N.S. Chouhan, J.) in Ramsewak Sharma v. State of M.P.,
M.Cr.C.No. 4109/92 as follows :
"On rejection of an application under Section 438 of the
Code of Criminal Procedure by this Court, the options open to the
applicant are either to surrender before the concerned authority or
to file a Special Leave Petition, before the Supreme Court. Where
he adopts neither of these courses, it will be reasonable to infer
that in utter disregard of the process of Law, he has deliberately
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27 MCRC-11109-2026
absconded. In such circumstances, his second application for
anticipatory bail must be held barred at the threshold and he
should be directed to surrender to the concerned authority
forthwith."
12. In this regard, it has to be seen that when an accused
files an application under Section 438, Criminal Procedure Code
for being released on anticipatory bail, he must be having an
apprehension that he is going to be arrested in connection with
some non-bailable offence. Therefore, it has to be inferred that he
has knowledge that a non-bailable offence has been registered
against him. Under the given circumstances, it cannot be said that
since in spite of said knowledge he has applied for being released
on bail under Section 438, Criminal Procedure Code without
surrendering himself before the Competent Authority, his
application would not be maintainable.
13. While rejecting the first application there is nothing in
law authorising the Court in directing the petitioner to surrender
before the Competent Authority. Conditions can be imposed under
sub-section (2) of Section 438, Criminal Procedure Code when the
Court directs that in the event of arrest, he shall be released on
bail. But when the first application is rejected, the law does not
envisage that any such condition can be imposed that the accused
should surrender before Competent Authority. In view of the said
reasoning, it cannot be inferred that after rejection of the first
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28 MCRC-11109-2026
application, the accused is deliberately absconding. Consequently,
the second application cannot be said to be untenable on the said
score as well.
14. Nevertheless, as has already been mentioned looking to
the facts and circumstances of each case and considering the
conduct of the accused in a given case, a second bail application
filed under Section 438, Criminal Procedure Code can of course
be rejected on the facts and merits of the case. Such a second
petition can even be summarily rejected if the facts and
circumstances of that particular case so warrant. But to hold that
second application would not be tenable under law would be
laying down a rule of law which is not there in the codified and
legislated legislation. Obviously holding a petition being not
maintainable under law is one thing and the petition being liable to
be rejected, even summarily, on the basis of its facts or its merits,
is the other.
15. In 1993 Cr.L.J. 476, Dharmendra v. State of M. P., it
was laid down that second application would be maintainable in
case the earlier petition for bail under Section 438, Criminal
Procedure Code was withdrawn and was rejected having been not
pressed. However, in our opinion, no such fetters can be put or
applied on the second petition. Second petition filed under Section
438, Criminal Procedure Code has to be decided on its merits even
if the earlier application was rejected on its merits. It shall,
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29 MCRC-11109-2026
however, be open for the Court to reject it even summarily on the
ground that the said second petition is nothing but a repetition of
the earlier petition and no new ground has been disclosed in the
second petition. This may take care of the apprehension that if the
second applications are held to be tenable, it may lead to misuse of
the said provision and the Courts would be flooded with such
repeated petitions.
16. Para No. 6 of the authority reported in 1986 Cr. LJ. at
page 279, Ram Sahodar v. State of M. P. reads as follows :
"In Babusingh's case, 1978 Cr.L.J. 651 (supra), the Supreme
Court was considering a second application after one such
application was earlier rejected. It was then ruled that an order
refusing an application for bail does not necessarily preclude
another, on a later occasion, giving more materials, and further
developments. It was also held that the Court is not barred from a
second consideration at a later stage and that an interim direction
is not a conclusive adjudication and that an updated
reconsideration is not overturning an earlier negation. Second
application was entertained. This dictum leaves no manner of
doubt that the law does not prevent second consideration of an
application for bail on rejection of the first one. The earlier
rejection is not conclusive. This also indicates that while rejecting
an application for bail, the Court will not be within its competence
to bar consideration of a subsequent bail application which may be
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necessitated on account of subsequent events and developments."
17. In our opinion, the said principle would apply, on the
basis of analogy, in connection with an application filed
under Section 438, Criminal Procedure Code as well as has been
tried to be elucidated by giving examples and, since the law does
not preclude entertainment of any second application
under Section 438, Criminal Procedure Code, it cannot be said that
second application would not be maintainable in law. However, as
has 'already been observed, the said second bail application can of
course be rejected even summarily when it is not based or
necessitated on account of subsequent events and developments or
changed circumstances.
18. While explaining and propounding the scope of Section
438, Criminal Procedure Code it was observed in the later part of
para 25 in AIR 1980 SC 1362, Gurbax Singh v. State that the
power conferred by Section 438, Criminal Procedure Code is of an
extraordinary character in the sense that it is not ordinarily
resorted to like the power conferred by Sections 437 and 439,
Criminal Procedure Code. It was also laid down that power to
grant anticipatory bail should be exercised with due care and
circumspection but beyond that it was not possible to agree with
the observations made in Balchandani's case, AIR 1977 SC 366,
Balchand Jain v. State of M. P., in altogether different context on
an altogether different point. A note of caution has been given in
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31 MCRC-11109-2026
the last line of para No. 26 of the same authority by observing :
"We ought, at all costs, to avoid throwing it open to a
constitutional challenge by reading words in it which are not to be
found therein."
As has already been mentioned, there is no statutory
prohibition (like the prohibition contained in Section 397(3))
barring second petition under Section 438, Criminal Procedure
Code and, therefore, in view of the authority referred above, the
Court should avoid reading words in the said section which are not
to be found therein.
19. In Bhagirath v. State of M.P. , 1980 MPLJ 373, it was
held that if a petition filed under Section 438, Criminal Procedure
Code has been rejected by the Court of Session, further
application to High Court is not barred. The same view has been
taken in Full Bench authority of Himachal Pradesh, reported in
AIR 1980 H.P. 36, Mohan Lal v. Prem Chand. It has to be seen
that concurrent powers have been given to the Court of Session as
well as to the High Court. Therefore, on the analogy and the
reasoning given in the said authority, second application
under Section 438, Criminal Procedure Code would not be
untenable, if the first application has been rejected either by
Sessions Court or by High Court. Nevertheless, to avoid abuse of
process of law, the Court in which the said second application
under Section 438, Criminal Procedure Code is moved, would
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32 MCRC-11109-2026
obviously be entitled and competent to consider as to whether the
said second application is actually being moved on some new
grounds or not. If the said application is moved on same grounds
on which previous application was moved, and the said grounds
after being considered have been held to be such as not warranting
release of the accused petitioner on bail under Section 438,
Criminal Procedure Code, subsequent application on same
grounds would be liable to be rejected even summarily on its
merits. Conduct of the accused petitioner, in avoiding his arrest,
can also be taken into consideration while deciding the said second
petition on merits. But, since there is no statutory prohibition for
the second application being moved, laying down that the second
application under Section 438, Criminal Procedure Code would
not be maintainable, would amount to reading the words which are
not there in Section 438, Criminal Procedure Code.
20. Therefore, in view of the said reasonings, the question
referred to the Larger Bench has been answered by us, as second
application under Section 438, Criminal Procedure Code is
maintainable and it would not make any difference if earlier
application was rejected on merits or was dismissed on account of
having been withdrawn or not pressed."
11. However, considering the said discussion whereby court has
said that the second application for anticipatory bail will be
maintained even if earlier application has been rejected and court
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has observed that such application is maintainable and can be
determined only on the facts and circumstances of each case and
court has to decide as to whether the fresh application has been
filed on same ground which were considered and not accepted or
rejected in previous occasion and no new ground has been raised.
Considering this aspect, I am of the view that as such there is no
new ground made out in this application. Except by suggesting
that the notification which is cited as one of the argument by the
Mr. Ruprah, Addl. A.G on earlier occasion, is not squarely
applicable and, therefore, the offence is not punishable where the
sentence can be over more than 5 years. There is no quarrel about
the proposition of law regarding the consideration of application
for anticipatory bail which is decided in the case of Siddharam
Satlingappa Mhetre and Sushila Aggarwal (supra) as well as the
proposition of law which decided in the case of Arnesh Kumar
and Satender Kumar Antil (supra) regarding the compliance of
provisions of section 41 and 41-A of the Cr.P.C. However,
considering the fact of the present case, more particularly, when
on the earlier occasion almost all the grounds which are now
canvassed are argued at length by the counsel for the applicant, I
found no reason to entertain second bail application on that count
as well as also on merit as there is sufficient material to indicate
about the role of applicant for consideration of prima facie
purpose of the matter. This court is of the opinion that the merit of
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the matter is not required to be discussed in detail at this stage.
However considering the fact that the contention raised by the
applicant regarding compliance of 41 and 41-A and also
contention regarding the punishment aspect of punishment, it is
always expected that the authority concerned, shall follow the
dictum of the judgement of Arnesh Kumar and Satender Kumar
Antil (supra) and if said dictum is not followed in the facts of the
case concerned, it is always open for the concerned Magistrate to
take appropriate action in accordance with the law.
12. From the above mentioned discussion, I am of the opinion
that no case is made out to exercise my discretion for
consideration of this second anticipatory bail application filed by
the present applicant.
13. With above observation, the present petition is found
meritless. The same deserves to be and, is hereby dismissed.
(SANDEEP N. BHATT)
JUDGE
MKL
