Uttarakhand High Court
ABA/76/2021 on 7 September, 2022
Office Notes,
reports, orders
SL. or proceedings
Date COURT'S OR JUDGES'S ORDERS
No or directions and
Registrar's order
with Signatures
ABA No. 76 of 2021
With
ABA No. 188 of 2021
ABA No. 215 of 2021
ABA No. 268 of 2021
ABA No. 29 of 2022
ABA No. 156 of 2022
ABA No. 159 of 2022
ABA No. 161 of 2022
Hon'ble S.K. Mishra, J.
Hon'ble Alok Kumar Verma, J.
Mr. Parikshit Saini, learned counsel for
the applicant
Mr. J.S. Virk, learned Deputy Advocate
General along with Mr. Rohit Dhyani and Mr.
R.K. Joshi, learned Brief Holders for the
State.
This order arises out of a reference
made by the learned Single Judge in
Anticipatory Bail Application No. 76 of 2021
and connected matters. We have taken note
of the said judgment dated 17.08.2022.
In the case of Bharat Chaudhary and
another v. State of Bihar and another,
AIR 2003 SC 4662, which is a two Judges
Bench judgment authored by Justice
Santosh Hegde, the Hon'ble Supreme Court,
after quoting Section 438 of the Cr.P.C., laid
down that from the perusal of this part of
Section 438 of the Cr.P.C., it find no
restriction in exercise of this power in the
suitable case, either by the Court of
Sessions, High Court, or the Supreme Court
when cognizance is taken or a charge-sheet
is filed. The object of Section 438 is to
prevent undue harassment of the accused
persons by pre-trial arrest and detention.
The fact, that a Court has either taken
cognizance of the complaint or the
investigating Agency has filed a charge-
sheet, would not by itself, in our opinion,
prevent the Court concerned from granting
Anticipatory Bail in appropriate cases.
The Supreme Court in the case of
Bharat Chaudhary (supra) has held as
follows:-
"6. We do not think that was the
intention of the legislature when it
incorporated S. 438 in the Cri. P.C. which
reads thus:
"When any person has reason
to believe that he may be arrested on an
accusation of having committed a non-
bailable offence, he may apply to the High
Court or the Court of Session for direction
under this Section; and that Court may, if
it thinks fit, direct that in the event of
such arrest he shall be released on bail".
7. From the perusal of this part of S.
438 of the Crl. P.C., we find no restriction
in regard to exercise of this power in a
suitable case either by the Court of
Sessions, High Court or this Court even
when cognizance is taken or charge-sheet
is filed. The object of S. 438 is to prevent
undue harassment of the accused persons
by pre-trial arrest and detention. The fact,
that a Court has either taken cognizance
of the complaint or the investigating
agency has filed a charge-sheet, would
not by itself. In our opinion, prevent the
concerned Courts from granting
anticipatory bail in appropriate cases. The
gravity of the offence is an important
factor to be taken into consideration while
granting such anticipatory bail so also the
need for custodial interrogation but these
are only factors that must be borne in
mind by the concerned Courts while
entertaining a petition for grant of
anticipatory bail and the fact of taking
cognizance or filing of charge-sheet
cannot by themselves be construed as a
prohibition against the grant of
anticipatory bail. In our opinion, the
Courts i.e. the Court of Session, High
Court or this Court has the necessary
power vested in them to grant anticipatory
bail in non-bailable offences under S. 438
of the Crl. P.C. even when cognizance is
taken or charge-sheet is filed provided the
facts of the case require the Court to do
so".
The Hon'ble Supreme Court in the case
of Vinod Kumar Sharma vs. State of U.P,
2021 SCC OnLine SC 3225 has held as
follows:-
"3. Merely because it was kept open
for the petitioners to surrender and apply
for Regular Bail after filing of the charge
sheet, the same does not preclude the
petitioners to apply for anticipatory bail
under Section 438 Cr.P.C. after filing of
the charge sheet. It also cannot be said,
that same is a second application for grant
of anticipatory bail as pleaded by learned
counsel appearing for respondents, on the
same cause of action".
Thus, it is clear that the Supreme Court
has taken cognizance of the fact that
Section 438 of the Code does not prohibit
the entertainment of an application for
anticipatory bail after filing of charge-sheet,
or after taking of cognizance by the learned
Magistrate.
In that view of the matter, there is
nothing further to be decided in this case.
It may be noted here that the Orissa
High Court in Basudev Samantaray vs.
State, BLAPL No.23121 of 2013 decided
on November 20, 2013 SCC Online Orissa
477, authored by one of us, Shri S.K.
Mishra, J., has taken into consideration the
earlier decided case of the High Court of
Orissa in Hatanath Behera vs. State
of Orissa, (1994) 7 OCR 41, and held
that an application for anticipatory bail is
maintainable even after filing of the charge-
sheet.
Thus, this Division Bench is of the view
that an anticipatory bail is maintainable
even after filing of the charge-sheet before
the learned Magistrate or Judge.
We answer the reference accordingly.
The matter be listed before the same
Bench.
(Alok Kumar Verma, J.) (S.K. Mishra, J.)
07.09.2022
Neha/SB
