Uttarakhand High Court
Krishna Shamsher Jb Rana vs State Of Uttarakhand And Another on 29 January, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Anticipatory Bail Application No. 23 of 2020
(Under Section 438 of Cr.P.C)
Krishna Shamsher JB Rana ....... Applicant
Vs.
State of Uttarakhand and another ...... Respondents
Present:
Ms. Samridhi Arora, Advocate, for the applicant.
Ms. Mamta Joshi, Brief Holder for the State.
Hon'ble Sharad Kumar Sharma, J. (Oral)
The brief facts as are reflected from the record are that the
applicant had earlier submitted a bail application before this Court, who is
an accused for commission of offence under Sections 419, 420, 467, 468
and 471 IPC, which has been registered against him as Case Crime No.
145 of 2018 at PS Raiwala, District Dehradun on 03.09.2018.
2. After his arrest and as per the legal advice extended to the
applicant, he had earlier approached to the learned Sessions Judge,
Dehradun, by filing an Anticipatory Bail Application No. 1213 of 2018,
Krishna Shamsher Jang Bahadur Rana vs. State. The said Anticipatory
Bail Application, was later rejected by an order of 04.02.2019 by the
Sessions Court. The reason for rejecting the Anticipatory Bail Application
has been assigned by the learned Sessions Judge in his order of
04.02.2019 as contained in its paras 6 and 7, it was because of the fact that
at that relevant point of time, when the Anticipatory Bail Application, was
filed, the provisions of Section 438 Cr.PC., were not made applicable in
the State of Uttarakhand, even, as per the provisions of Reorganization
Act, because it was not a provision in vogue in the undivided State of
Uttar Pradesh, which could have been made applicable then in February,
2018, as it was not on existing, which would stand applicable under the
Reorganization Act as per its Section 86 and 87 of the Act.
3. The applicant filed yet another Anticipatory Bail Application
No. 03 of 2020 Krishna Shamsher JB Rana vs. State of, before this Court.
The same was taken up for consideration and after considering the impact
of the Reorganization Act and non-applicability of the provisions
contained under Section 438 Cr.P.C., this Court had rejected the
Anticipatory Bail Application on 15.06.2020, on the ground that since the
said provision is not applicable, the only recourse, which was available to
the applicant at that relevant point of time, was to file regular bail, hence
he was relegated to file a regular bail and, accordingly, the said
observation was also made by this Court vide its order dated 15.06.2020.
The relevant paras are referred to hereunder:-
"13. In that view of the matter, since Section 438 of the Cr.P.C.
itself is not applicable in the State of Uttarakhand by virtue of
amendment, which was carried by Act No. 16 of 1976 w.e.f. 28th
November, 1975, which stood adopted by virtue of Section 86 to
be read with 87 of the Reorganization Act, I have no hesitation to
hold that the present Anticipatory Bail Application is not
maintainable before this Court.
14. Hence, the same is dismissed without prejudice to the
rights of the applicant to seek his regular bail for the aforesaid
offences."
4. During the intervening period, certain judicial developments
took place and as a consequence of the judgment of the Division Bench,
which was rendered on 19.09.2018, the provisions of Section 438 Cr.P.C.
was made applicable in the State of Uttarakhand by a judicial precedent.
5. Subsequently, the Anticipatory Bail Application, which was
preferred by the applicant before the learned Sessions Judge, being
Anticipatory Bail Application 1112/2018, which was rejected by the
Sessions Judge, Dehradun, by an order of 23.09.2020, it was based on
extracting the reasoning, which were given by this Court, in its order dated
15.06.2020 in Anticipatory Bail Application No. 03 of 2020 then holding
thereof that since I had earlier directed to file a regular bail, the
Anticipatory Bail Application which had been filed later before the
Sessions Judge would not be maintainable.
6. This was apparently wrong reasoning, which has been
assigned by the Sessions Judge for the reason being that at that point of
time relegating the applicant to file a regular bail by the order dated
15.06.2020, was on the ground that Section 438 Cr.P.C. then at that time
was not available to the applicant. Hence, the direction was given for
filing of the regular bail. But, during the intervening period, when there
was a change in law, and Section 438 Cr.P.C. was made applicable, then
obviously the Anticipatory Bail Application which was preferred by the
applicant ought to have been decided on its own merits rather than on
account of restrictions/directions, which were made by this Court in its
order dated 15.06.2003, because those reasoning after the judgment of
Division Bench, cannot be extracted to hold that Anticipatory Bail
Application, which was preferred by the applicant, cannot be decided on
merits.
7. In that view of matter, while setting aside the order of
23.09.2020, as has been passed by the learned Sessions Judge, which is
under challenge in the present Anticipatory Bail Application before this
Court, instead of this Court venturing into the Anticipatory Bail
Application, on its own merit, is relegating the matter to the Sessions
Judge to decide the Anticipatory Bail Application itself on its own merit,
under the changed circumstances of law, as made applicable in the State of
Uttarakhand, and the Anticipatory Bail Application, as preferred by the
applicant, would be decided on its own merits after considering the rival
contentions of the parties to the proceedings. Subject to the above the
impugned order is quashed.
8. The counsel for the applicant has expressed an apprehension
that in all probabilities, the principal proceedings may be placed before the
learned Trial Court by 2nd week of February, 2021. The applicant also
apprehends that in an event, if this order is not placed before the learned
Sessions Judge for consideration of his Anticipatory Bail Application,
which has been revived to be considered on merits as a consequence of the
aforesaid judgment, the applicant apprehends for the stay of arrest.
9. In that eventuality, it would be left open for the applicant to
file an appropriate application supported by an affidavit before the
Sessions Judge, intimating about today's order and direction given therein
to decide the Anticipatory Bail Application on its own merits and the
Sessions Judge is requested to decide the Anticipatory Bail Application on
its own merits before the next date.
(Sharad Kumar Sharma, J.)
Vacation Judge
29.01.2021
Kaushal
