ABA/225/2021
2021 Latest Caselaw 4941 UK

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                                  ABA No.225 of 2021
                                  With
                                  ABA No.240 of 2021
                                  Hon'ble R.C. Khulbe, J.

Mr. Aditya Singh, learned counsel for the applicants.

Mr. Deepak Bisht, learned B.H. for the State. The applicants have filed the present anticipatory bail applications under Section 438 Cr.P.C. for the following common relief:-

"To direct that in case the applicant is arrested by the investigating officer in connection with the FIR No.83 of 2019 dated 22.08.2019 under Section 304B IPC, P.S. Clementown, District Dehradun (cognizance taken under Section 304B IPC vide order dated 25.01.2021 passed by the learned CJM, Dehradun, in Criminal Case No.803 of 2021) she shall be released on bail on any condition which this Hon'ble Court may set upon the applicant herein.

It is argued by learned counsel for the applicants that, initially, an FIR was lodged under Sections 326, 498-A, 323, 504, 506 IPC and u/s ¾ D.P. Act with P.S. Clementown, District Dehradun against them; thereafter, they were arrested, accordingly, bail applications were filed, in which this Court as well as the Coordinate Bench granted them bail vide orders dated 06.12.2019 and 15.01.2021 respectively. He further submitted that after granting the bail, charge sheet was submitted against the applicants under Section 304B IPC also; he submits that since the accused have already been enlarged on bail in the aforesaid offences; accordingly, they are also entitled for anticipatory bail under Section 304B IPC as well. It is also submitted by learned counsel for the applicants that, if any offence is added in the charge sheet, in that circumstance, the accused will put their appearance and move an application for granting bail in added offence also, the concerned court will grant bail in the added offence i.e. the original bail will continue in the added offence also, as per the law laid down by the Hon'ble Apex Court in the Constitutional Bench in Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another, reported in (2020) 5 SCC 1.

Heard learned counsel for the accused and learned counsel for the State. I have also gone through the ruling of the Hon'ble Apex Court.

When the matter came up for hearing before the Constitutional Bench of the Apex Court in the above case (Supra), in paragraph no.7, following two questions were framed:-

"(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court."

From the perusal of the judgment (supra), it is clear that the questions framed in the aforesaid paragraph relate to the anticipatory bail under Section 438 Cr.P.C., although, in paragraph no.7.1, the Hon'ble Apex Court also dealt with Sections 437 and 439 Cr.P.C., but in paragraph no.77.1, the Apex Court clearly held that, 'the observations about the width and amplitude of the power under Section 438, made in answer to the first question, are equally relevant here too'.

It is clear that the Hon'ble Apex Court answered the questions framed regarding the anticipatory bail as envisaged under Section 438 Cr.P.C. and not under Sections 437 and 439 Cr.P.C.

Although, the Hon'ble Apex Court also discussed the judgment rendered in the case of Pradeep Ram vs. State of Jharkhand and Another, reported in (2019) 17 SCC 326, but the Constitutional Bench of the Apex Court did not overruled the judgment of Pradeep Ram (supra).

Now, it is a settled law, that if the anticipatory bail is granted, it will continue till the conclusion of the trial; if some offences were added, then the accused will have a right to put his appearance and move an application in the added offence also, the concerned Court will enlarge the accused in the added offence also, and there is no need to file fresh bail bonds and the anticipatory bail will continue.

While in the present matter, no such anticipatory bail was granted to the accused. The accused were enlarged on regular bail only under Sections 326, 498-A, 323, 504, 506 IPC and u/s ¾ D.P. Act, but the charge sheet has subsequently been submitted under Section 304B IPC against the accused; accordingly, the Court cannot direct the subordinate Court to enlarge the accused on bail on the same sureties as furnished earlier.

In these circumstances, the present anticipatory bail applications are hereby rejected.

Pending applications, if any, stand disposed of.

(R.C. Khulbe, J.) 06.12.2021 BS