IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 3822 of 2008()
1. ANWAR, S/O. ALI,THACHARAMBAN HOUSE,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :17/06/2008
O R D E R
K.HEMA, J.
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B.A.No.3822 of 2008
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Dated this the 17th day of June, 2008
ORDER
The petitioner is an absconding accused. He is the third
accused in the case. He was originally granted bail by the lower
court. But he absconded and hence, non bailable warrant was
issued against him. Proceedings under Sections 82 and 83 of the
Code of Criminal Procedure (the code, for short) were initiated
against him. Thereafter, the case was transferred to the register
of long pending cases. The petitioner now apprehend arrest in
view of the warrant issued.
2. Learned counsel for the petitioner submitted that the
petitioner had gone abroad, in connection with his employment
and hence, he could not appear before the court below. The
absence is not willful nor deliberate. But, petitioner apprehends
that he will be remanded to custody, in the event of his
surrender before the court. Hence, he requests that anticipatory
bail may be granted to him.
3. Section 438 of the Code reads as follows: Section
438 (1) of the Code lays down that where any person has reason
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to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to the High
Court or Sessions Court under the Section that in the event of
his arrest he shall be released on bail. The provision can be
invoked only in cases where the apprehension of arrest is “on the
accusation of having committed a non-bailable offence”. The
reason for the arrest must be the commission of a non-bailable
offence by the petitioner.
4. But, in this case, the petitioner apprehends arrest not
on account of his commission of non-bailable offence. Such
apprehension is over. He was granted bail also. But, the
petitioner faces threat of arrest only because he has jumped the
bail granted by the court and he has violated the conditions
imposed while granting bail. On going through Section 438, it is
clear that the provision can be invoked only if the petitioner
apprehends arrest on the accusation that he has committed non
bailable offence. The present apprehension of arrest is only
because a non-bailable warrant is issued by a court since he
absented himself during trial and not because he is an accused in
a non-bailable offence. So, strictly speaking, it cannot be said
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that he is apprehending arrest on accusation of having
committed a non-bailable offence. He is required for arrest
because of his absence in the court, and for execution of a non-
bailable warrant issued by a competent court. So, the
requirement under Section 438 Crl.P.C. will not be satisfied and
the said provision cannot be invoked in situation like this.
5. It is only because, the petitioner was absent and could
not be procured for trial that a warrant was issued. Whatever be
the consequences, the petitioner is bound to suffer but Section
438 Crl.P.C. is not the remedy. If he has genuine reasons for his
absence, the trial court itself will consider the same and grant
appropriate relief. But, in my view, this court cannot invoke
Section 438 Crl.P.C. to grant anticipatory bail.
6. Learned counsel for the petitioner submitted that
there is no bar in granting anticipatory bail even after
cognizance is taken and charge sheet is submitted. He has
relied upon the decision reported in N.Santosh Hegde and
B.P.Singh (AIR 2003 Supreme Court 4662). The relevant
portion of which is extracted herein:
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“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 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 Sessions,
High Court or this Court has the necessary power
vested in them to grant anticipatory bail in non-
bailable offences under Section 438 of 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.”
7. On going through the said decision, it is made clear by
the Supreme Court was only laying down that there is no bar in
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granting anticipatory bail even after taking cognizance and also
after filing of charge sheet in appropriate case. The above
decision is not quite relevant in the present context. The
question here is whether the petitioner is sought to be arrested
on the ground that he is accused of a non-bailable offence or not.
Since the arrest is not on that ground but it is due to the warrant
lawfully issued by a competent court, it is not proper for this
court to intervene under Section 438 Crl.P.C. Section 438
Crl.P.C. is not intended to be invoked for interfering with lawful
orders issued by a competent court, especially when there is
nothing to show that the order for arrest was issued baselessly.
8. Learned counsel for the petitioner submitted that the
petitioner is prepared to surrender before the court below and a
direction may be given to the lower court to dispose of the bail
application on the same day of filing of the petition.
9. On hearing both sides, I am satisfied that the
following direction can be given:
10. In the event of the surrender of the petitioner before
the trial court and in case an application for bail is filed with
prior notice to the prosecutor the court below shall not protract
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disposal of application but it shall be disposed of as expeditiously
as possible.
The petition is disposed of accordingly.
K.HEMA, JUDGE
csl