K.T.SANKARAN v. State ofMaharashtra ((1996) 1 SCC 667) could not be read as prohibitingthe

K.T.SANKARAN, J.------------------------------------------------------ B.A. NO. 4023 OF 2009------------------------------------------------------ Dated this the 24th July, 2009

O R D E RAccused No.10 in Crime No.562 of 2006 of KayamkulamPolice Station has filed this Bail Application under Section 438 of the Code of Criminal Procedure. 2. The offences alleged against the petitioner and the otheraccused persons are under Sections 143, 144, 147, 148, 149, 323,324, 302 and 120B of the Indian Penal Code, Section 7(b) and 27(2)of the Arms Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.3. Learned Public Prosecutor submitted that the charge waslaid in the case on 9.12.2008. It would appear that non-bailablewarrant was issued by the Judicial Magistrate of the First Class, Kayamkulam against the petitioner. The learned Public Prosecutorsubmitted that the appropriate remedy of the petitioner would be tomove the court which issued the non-bailable warrant. B.A. NO. 4023 OF 2009 :: 2 ::4. Learned counsel for the petitioner relied on the decision ofthe Supreme Court in Bharat Chaudhary v.

State of Bihar ( (2003)8 SCC 77 = (2003 (3) KLT 956 (SC)) and contended that anapplication for anticipatory bail is maintainable even after the chargesheet is filed. In paragraph 7 of the judgment, the HonourableSupreme Court held thus: “From the perusal of this part of S.438 of the Crl.P.C., we find no restriction in regard to exercise ofthis power in a suitable case either by the Court of Sessions, High Court or this Court even whencognizance is taken or charge sheet is filed. The objectof S.438 is to prevent undue harassment of the accusedpersons by pre-trial arrest and detention. The fact, thata Court has either taken cognizance of the complaint orthe investigating agency has filed a charge sheet, wouldnot by itself, in our opinion, prevent the concernedcourts from granting anticipatory bail in appropriatecases. The gravity of the offence is an important factorto be taken into consideration while granting suchanticipatory bail so also the need for custodialinterrogation, but these are only factors that must beborne in mind by the concerned courts whileentertaining a petition for grant of anticipatory bail and B.A. NO. 4023 OF 2009 :: 3 ::the fact of taking cognizance or filing of charge sheetcannot by themselves be construed as a prohibitionagainst the grant of anticipatory bail.

In our opinion, thecourts ie., the Court of Sessions, High Court or this Court has the necessary power vested in them to grantanticipatory bail in non-bailable offences under S.438 ofthe Crl.P.C. even when cognizance is taken or chargesheet is filed provided the facts of the case require the Court to do so.” The Supreme Court in Bharat Chaudhary's case also held that thedecision in Salauddin Abdulsamad Shaikh v. State of Maharashtra ((1996) 1 SCC 667) could not be read as prohibitingthe grant of anticipatory bail under Section 438 of the Code of Criminal Procedure in a case where charge sheet is filed.5. In (1996) 1 SCC 667, it was held that ordinarily the Courtdealing with anticipatory bail application should not substitute itselffor the original court which is expected to deal with the offence and itis the latter court which has to consider whether, having regard tothe material placed before it, the accused person is entitled to bail.6.

It is true that going by the decision in Bharat Chaudhary's B.A. NO. 4023 OF 2009 :: 4 ::case, there is no bar in entertaining an application under Section 438of the Code of Criminal Procedure after the charge sheet is filed. However, it is not a general rule that the power under Section 438 ofthe Code of Criminal Procedure could be exercised in each andevery case, where charge sheet is filed. Exceptional circumstancesmay arise in which exercise of the power by the Sessions Court orthe High Court under Section 438 may be warranted and the factthat the charge sheet was filed in the case would not be a bar toentertain such an application under Section 438 of the Code of Criminal Procedure. Ordinarily, when a charge sheet is filed, it is forthe Court which has to try the case that has to deal with theapplication for regular bail. Whether bail should be granted in thefacts and circumstances of the case, has to be considered by the Court which is expected to try the case.7.

In Bharat Chaudhary's case, the court which tookcognizance of the offence had not issued non-bailable warrantagainst the accused persons. In the present case, the policeregistered the case on 1.10.2006. It is stated in the Bail Applicationthat the petitioner went abroad on 9.2.2007. Except the petitioner(accused No.10), all the other accused persons were arrested and B.A. NO. 4023 OF 2009 :: 5 ::they were released on bail by the Sessions Court. The petitionerhas not stated the circumstances under which non-bailable warrantwas issued against him. That non-bailable warrant was issued bythe trial court is not disclosed in the Bail Application.8. It has become a usual practice to file applications foranticipatory bail before the High Court even in cases where the trialcourts are faced with situations in which the accused personsabscond for years together. When such persons get information thatthey would be arrested in execution of non-bailable warrants, theyrush to the High Court.

The High Court would not be in a position toassess the situation correctly unless the records of the cases arecalled for from the lower courts. The Public Prosecutor would notget correct instructions in the matter, as they usually get in caseswhere charge sheets are not filed. It is not desirable for the HighCourt to call for the records from the trial courts to deal with suchapplications for anticipatory bail. If the records are called for, itwould cause further delay in the disposal of cases. It is not as if theaccused persons in such cases are without remedy. They can verywell approach the Courts which issued the non-bailable warrants andapply for re-calling the warrant and for grant of bail. Sometimes, the B.A. NO. 4023 OF 2009 :: 6 ::trial courts would consider the applications for bail in such casesafter a few days, which may result in the detention of such accusedpersons during those days.

Probably, that is the reason why theyfile applications for anticipatory bail before the High Court. Sometimes, the correct facts of the case may not be available tosuch persons. In some cases, they suppress the real facts and putforward untrue contentions. If the bail applications are dealt with bythe respective trial courts, the correct facts may be available beforethem. 9. It is a reality that some persons are capable of avoidingarrest even if non-bailable warrants are issued against them. It isalso not uncommon that the police personnel would afford help tosuch persons and return the non-bailable warrants unexecutedstating that the person concerned was not found at his residence orthe place of his work. Such incidents provide a fertile soil forcorruption. Situations are galore where the trial courts becomehelpless and they would have no other alternative but to issue ordersto repeat the non-bailable warrants.

At the final stage where theaccused persons concerned are sure of being arrested, they movefor anticipatory bail before the High Court. It is also well known that B.A. NO. 4023 OF 2009 :: 7 ::instances are not uncommon where the police people concernedmay grant a short time to such accused persons to move foranticipatory bail. The High Court cannot afford to be unaware of therealities in life and of what happens at the grass root level.10. Normally it should be left to the discretion of the courtdealing with the case to consider the question of granting bail. Thatdoes not mean that the High Court or Court of Session has no powerto deal with an application under Section 438 of the Code of CriminalProcedure in a case where charge sheet was filed. As held in Bharat Chaudhary's case ((2003)8 SCC 77), in a “suitable case” such power can be exercised.11. Learned counsel for the petitioner pointed out that as perthe order dated 6.11.2008, the Court of the Additional SessionsJudge I, Mavelikkara, granted regular bail to accused Nos.1 to 3 and6.

That shows that the petitioner can very well approach the learnedSessions Judge and apprise that Court about the order dated6.11.2008, which was passed even before the charge sheet wasfiled. B.A. NO. 4023 OF 2009 :: 8 ::12. There is yet another circumstance which is to be takennote of. There is an allegation that the accused persons committedoffence under the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act. Section 18 of the said Act takes awaythe power of the Sessions Court as well as the High Court toentertain an application under Section 438 of the Code of CriminalProcedure.13. I do not find any exceptional circumstances in the presentcase justifying exercise of jurisdiction under Section 438 of the Codeof Criminal Procedure, particularly when the offences include anoffence in respect of which Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act would apply.14.

The apprehension of the petitioner is that if he appearsbefore the trial court, he would be remanded to judicial custody. InBiju v. State of Kerala (2007 (2) KLT 280), Justice A.K.Basheer, after noticing the practice that is being followed by some learnedMagistrates (vide paragraph 16) held at paragraph 18 thus:: B.A. NO. 4023 OF 2009 :: 9 ::“18. As mentioned earlier, criminal courts shouldalways be careful while passing orders on bailapplications which in effect deal with personal liberty. Incases where the court decides to send an accused tocustody pending trial, it must be ensured that the courtapplies its mind judicially and judiciously with particularreference to the facts and circumstances of the case. The mere fact that the accused had failed to respond toa summons or that the court had to issue non-bailablewarrant to compel his presence will not ipso factoempower the criminal court to remand the accused tocustody as a punitive measure when he appears beforethe court on his own volition or is produced in executionof the warrant.

The bail application that may be movedon his behalf has to be considered and orders should bepassed on the same day itself since personal liberty ofan accused cannot be curtailed in a whimsical ordisdainful manner.” I am in respectful agreement with the dictum laid down in Biju v.State of Kerala. The Bail Application is accordingly dismissed with liberty to thepetitioner to move for regular bail and to apply for recalling thewarrant for arrest. If the petitioner files an application for bail, the B.A. NO. 4023 OF 2009 :: 10 ::court shall make every endeavour to consider the same on the samedate itself. The court shall also consider all aspects of the matter, inthe light of the dictum laid down in Biju v. State of Kerala (2007 (2)KLT 280).(K.T.SANKARAN)Judgeahz/