Criminal Application No.4508 of 2009

7th July, 2010

Petitioner Counsel: Mr. J. A. UDAIPURI,Udaipuri & Co.
Respondent Counsel: Ms. M. H. MHATRE

JUDGMENT

JUDGMENT :- Heard the learned counsel for the Applicant and learned A.P.P. for the Respondent/State.

2. The present Applicant is original complainant who had filed a private complaint against Respondent nos.3 to 7 for the several offences including sections 467, 468, 420 read with section 34 of the Indian Penal Code in the Court of Metropolitan Magistrate 25th Court, Mazgaon, Mumbai. The learned Magistrate directed the investigation by the police under section 156(3) of the Criminal Procedure Code. The Police after investigation filed the charge-sheet. When the investigation was in progress, apprehending arrest for the said offences the accused persons made an application for anticipatory bail which was granted by the Court of Sessions. After filing of the charge-sheet the accused persons filed an Application for bail before the Magistrate. However, the learned Magistrate rejected the same on the ground that he had no powers to grant the bail as the offence under section 467 of Indian Penal Code is punishable with imprisonment for life. In view of this, the accused persons filed Bail Application No.350 of 2009 before the Sessions Court under section 439 of the Criminal Procedure Code. The learned Additional Sessions Judge at Sewri after stating the relevant facts leading to the prosecution and filing of charge-sheet noted that after the anticipatory bail was granted, there were no complaints of threatening the witnesses by the accused persons. The learned Additional Sessions Judge granted bail to the accused persons by the impugned order dated 16.05.2009.

3. The Applicant, by this Application, seeks to quash that order on the ground that as the accused were already on anticipatory bail, the regular bail Application under section 439 of the Criminal Procedure Code could not be considered nor such bail can be granted by the Sessions Court because the accused were not in custody on the date when the Application for bail was made or when the bail under section 439 of the Code was granted. It is contended that in view of these circumstances, the impugned order granting the bail is erroneous and therefore, liable to be quashed. The learned counsel for Applicant made clear that this is not an Application for cancellation of bail on any of the grounds, which could be available for cancellation of bail after it is granted.

4. Section 438 of the Criminal Procedure Code makes a provision for grant of bail in anticipation of arrest for non-bailable offence by the High Court or the Court of Sessions. The Court may, after taking into consideration, the nature and gravity of the accusation, the antecedents of the applicant, the possibility of the applicant to flee from justice, and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, that Court may, either reject the application or grant anticipatory bail. It may also pass interim order for grant of anticipatory bail with certain conditions. Once, anticipatory bail is granted such person on being arrested has to be released on bail.

5. Learned counsel for the Applicant contends that as per the provisions of section 439(1)(a) of the Criminal Procedure Code, the High Court or the Court of Sessions may direct that any person accused of an offence and in custody be released on bail and may also impose conditions, if the offence is of the nature specified in the section 437(3) of the Criminal Procedure Code. Learned counsel for the Applicant further contends that it is absolutely necessary that the accused should be in custody when his application for bail is considered and bail is granted. According to him, when the accused were already granted anticipatory bail they were not in custody and therefore, they could not be granted bail under section 439 of the Criminal Procedure Code.

6. Infact, the anticipatory bail is granted with limited purpose of giving protection to the person against unnecessary harassment by arrest. It is no substitute for the regular bail which the person has to obtain pending the case against him. At the time of granting anticipatory bail, either the investigation may not have been commenced, and if commenced, it is not completed, nor the charge-sheet is filed. At that stage investigating agency is not in a position to place complete material against the accused and the accused is also not in position to point out the weak points in the prosecution case. Therefore, the court is not in position to decide bail application on merits. Therefore, the court may consider the application for anticipatory bail as per the parameters and guidelines in section 438 of the Criminal Procedure Code itself. After the investigation is completed and charge-sheet is filed, the court can consider bail application either under section 437 or section 439 of the Criminal Procedure Code on merits taking into consideration all the material, on which prosecution relies. At that stage, possibility of arrest on some unfounded or frivolous grounds, only with intention to harass the person, is also minimized. Therefore, the protection provided under section 438 of the Criminal Procedure Code is for limited period and generally till filing of charge-sheet. On filing of charge-sheet accused may move regular bail application under section 437 or section 439 of the Criminal Procedure Code. If the charge-sheet is filed in the court, after grant of anticipatory bail, he is no more under threat of arrest by police but he has to appear before the Court and seek the bail. When he appears before the Court to seek bail, naturally, he surrenders himself before the Court and cannot simply go away from the court unless the bail is granted to him or he is permitted by the Court to leave pending consideration of bail application. Therefore, when he submits the bail application, he is presumed to have surrendered before the Court and to be in custody of the Court and therefore, the court can consider his Application for bail. If after considering the facts and circumstances, the Court finds that he deserves to be granted bail, the court may pass appropriate order directing him to be released on bail. If the Court comes to conclusion that he does not deserve to be released on bail, his application may be rejected and he may be remanded to judicial custody. When he is released by police on furnishing bonds as per the anticipatory bail order, those bonds are furnished before the police and not before the Court. When bail is granted by the Court, he has to furnish fresh bail bonds before the court.

7. Taking into consideration this legal position, a person who is granted anticipatory bail has to move the court for regular bail under section 437 or under section 439 of the Criminal Procedure Code, within a period for which anticipatory bail is granted and if no such period is fixed, when the charge-sheet is filed and on the bail being granted by the Court, he has to furnish the bonds by which he is bound to appear before the Court and to comply other conditions subject to which bail is granted. In view of this, it is difficult to accept that only because the anticipatory bail was granted, the Sessions Court has no jurisdiction to entertain the Application under section 439 of the Criminal Procedure Code and to grant regular bail to him. Therefore, I find no substance in the present Application.

8. In the result, Application stands dismissed.

Application dismissed.