Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 843 (PAT)

Raj Narayan Singh v. State Of Bihar

2004-08-19

SHASHANK KR.SINGH

body2004
Judgment 1. The order dated 27.5.2004 is an order of the court of Sessions Judge, Kaimur at Bhabua in bail petition no. 119A of 2004. The aforesaid order goes to show that the application for anticipatory bail of the petitioner has been rejected as not maintainable as the summons had been issued by the trial court under Section 319 of the Code of Criminal Procedure. Section 319 of the Code of Criminal Procedure reads as follows: "Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such persons could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 2. From bare perusal of the same it would transpire that during the course of trial or inquiry or otherwise if the court is satisfied that any other person who is not facing trial is required to face the trial with the other accused persons, it can summon such a person to face the trial or direct for his arrest for the said purpose, that will mean that it is this order which has led the apprehension of the petitioner of his arrest in the aforesaid case. Section 438 of the Code of Criminal Procedure does not bar any such person for availing the benefit under the aforesaid provision for his release on bail in anticipation of his arrest. Section 438 of the Code of Criminal Procedure does not bar any such person for availing the benefit under the aforesaid provision for his release on bail in anticipation of his arrest. The aforesaid Section is quoted hereinbelow: 438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed non-bailable offence, he may apply to the High Court or the Court of Session for a 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. (2) When the High Court or the Court of Session makes a direction under sub-section (1), may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decided that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)." 3. From bare reading of the same it will be clear that there is no bar under the aforesaid Section i.e. 438 of the Code of Criminal Procedure and as for the first time the petitioner now apprehends his arrest as he has reasons to believe that he may be arrested in view of the summons issued by the trial court, where he is required to face the trial and in which case he may be remanded to judicial custody, he is entitled to move the court under the provision of Section 438 of the Code of Criminal Procedure. As such, the rejection of anticipatory bail application on the ground that the same is not maintainable is bad. 4. The petitioner is granted liberty to move the court below, i.e. the court of learned Sessions Judge, Kaimur at Bhabua again for bail in anticipation of his arrest. In case such an application is filed it shall be disposed of on its own merit. 5. The present application is disposed of with the direction as made above.