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2015 DIGILAW 253 (CAL)

In re : Sanjay Makhal @ Jadu Makhal @ Raju v. .

2015-03-17

ASHIM KUMAR ROY, ISHAN CHANDRA DAS

body2015
JUDGMENT : Heard the learned Counsel appearing on behalf of the parties. Perused the case diary. 2. The petitioner, apprehending arrest in connection with Jagacha Police Station Case No. 42 of 2012 dated 30.01.2012 under Sections 29(b)(ii)(B) of the N.D.P.S. Act, 1985 has come to this Court for anticipatory bail. 3. Being on bail, the petitioner has been facing his trial on a charge of having committed an offence punishable under the NDPS Act before the learned Judge, Special Court, Howrah, constituted under the said Act. Since during the trial and in course of recording of evidence, he was absent on consecutive occasions, the trial Court issued warrant of arrest against him. Apprehending arrest on the face the order of warrant of arrest, the petitioner has approached this Court for anticipatory bail. 4. In this application, a very crucial question arises for our consideration, whether an application for anticipatory bail invoking Section 438, CrPC is maintainable or not, at the behest of a person, already on bail, since a warrant of arrest is issued against him for violation of condition of bail and for the reason of his failure to be present in Court consecutively during his trial. In other words, whether to a person who was already on bail, a legal right to seek a judicial relief invoking Section 438, CrPC is still available, when during trial, warrant of arrest has been issued against him for violation of condition of bail and for avoiding due process of law. 5. An anticipatory bail is nothing but a judicial order, whereby a person who is charged for having committed a non-bailable offence, is relieved with an order of bail before his actual arrest. Consequently, an accused who is armed with an order of anticipatory bail in connection with a criminal case for having committed non-bailable offence, after his arrest, at once shall be released on bail by the arresting officer without any further order from a Court of law. 6. It clearly flows from the very language of the Section 438, CrPC, maintaining an application for anticipatory bail, pre-supposes, the applicant must show that he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. 6. It clearly flows from the very language of the Section 438, CrPC, maintaining an application for anticipatory bail, pre-supposes, the applicant must show that he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. The cause of action, to maintain an application for anticipatory bail, no more survives and automatically extinguishes as soon as the person so apprehending arrest, is arrested or otherwise taken into custody, for the simple reason that after arrest, there cannot be any apprehension of arrest. On the same analogy, the benefit of anticipatory bail and its effect, comes to an end and does not remain alive, as soon as a person enjoying such benefit is arrested or otherwise taken into custody and consequent upon an order of anticipatory bail is released. Similarly, no person already arrested or otherwise taken into custody and then released on bail, in regular course or pursuant to an order of anticipatory bail also cannot maintain any application for anticipatory bail invoking Section 438, CrPC, if while on bail against him warrant of arrest has been issued by a Court of law for violation of condition of bail. At this stage, such an accused cannot have any apprehension of arrest for having committed any non-bailable offence anymore, since his apprehension of arrest is arising out of an order of warrant of arrest issued against him for violation of condition of bail. It however, needs no debate, the position is otherwise, in case of an accused, against whom warrant of arrest has been issued during the course of investigation or after filing of charge sheet showing him absconder and where in connection with such case he was never arrested or was in custody. In fact, in such a situation his apprehension of arrest becomes more realistic, unless such a person is a proclaimed offender. At the same time, no application for anticipatory bail is maintainable, where warrant of arrest is issued in connection with a case relating to a bailable offence or the warrant of arrest is a bailable one. 7. In fact, in such a situation his apprehension of arrest becomes more realistic, unless such a person is a proclaimed offender. At the same time, no application for anticipatory bail is maintainable, where warrant of arrest is issued in connection with a case relating to a bailable offence or the warrant of arrest is a bailable one. 7. Similarly, the position is otherwise and there is no bar to entertain a second application for anticipatory bail, after the prayer for anticipatory bail of the same accused is rejected either by the High Court or by the Sessions Court, if a case is made out that there has been a substantial change in the circumstances, existing at the time when the prayer for anticipatory bail was negated and the change is not a mere cosmetic change and there is justifiable reasons. 8. As a matter of illustration, in a case, where an abductor charged of an offence punishable under Section 364, IPC, fails to sustain his application for anticipatory bail since victim was not recovered and there were allegations against him for abducting the victim intending to murder but subsequently victim returned and made a judicial statement under Section 164, CrPC, where he completely exonerated the accused/abductor from the said charge or in a case, after the application for anticipatory bail of an abductor charged of an offence punishable under Section 366, IPC, is rejected, the victim girl returned and by a judicial statement recorded under Section 164, CrPC disclosed that who is a adult girl married the accused on her own volition or in a case where after rejection of first application for anticipatory bail and accused who has been charged for an offence of cheating or breach of trust returned the alleged cheated money to the complainant or where a matrimonial dispute is settled between the parties etc. 9. A reason to believe that a person may be arrested on an accusation of having committed non-bailable offence is one thing and a reason to believe that he may be arrested on the strength of warrant of arrest because while on bail, he avoided the due process of law and jumped bail is another thing. 10. 9. A reason to believe that a person may be arrested on an accusation of having committed non-bailable offence is one thing and a reason to believe that he may be arrested on the strength of warrant of arrest because while on bail, he avoided the due process of law and jumped bail is another thing. 10. For the reasons stated above, no application for anticipatory bail is at all maintainable at the instance of any person who was once arrested and then released on regular bail after his detention in custody or released on bail soon after his arrest or otherwise being in custody was bailed out, pursuant to an order of anticipatory bail standing in his favour, merely because he is apprehending arrest on the face of an order of warrant of arrest issued against him by a Court for violation of condition of bail and for avoiding due process of law. 11. Therefore, to seek a judicial relief as provided under Section 438, CrPC, a person is to make out a case that he has a reason to believe that he may be arrested on an accusation of having committed non-bailable offence. No application for anticipatory bail is at all maintainable once a person is arrested or after arrest is released on bail either on the strength of an order of anticipatory bail or in regular course, even if he apprehends arrest when warrant for his arrest has been issued as he jumped bail. Once an order of anticipatory bail comes to its logical end after the arrest of the accused in whose favour such order was made and was released or a person is arrested or otherwise taken into custody, in those situations neither the remedy under Section 438 be revived or restored nor a cause of action will be available to such a person to maintain an application for anticipatory bail. 12. In the case at hand, it is an admitted position, the petitioner was on regular bail granted by a proper Court and was in the midst of his trial on a charge of having committed an offence punishable under the NDPS Act and the trial was at the stage of recording of evidence and at that stage he was absent in Court on consecutive days and the trial Court issued warrant for his arrest. It may be that because of issuance of warrant of arrest, the petitioner has a real apprehension and reason to believe that in execution of such warrant of arrest, he may be arrested by the police, even then that does not bring his case within the ambit of Section 438, CrPC, for the reasons as above. 13. The contention of the learned Advocate of the petitioner since against the petitioner, a warrant of arrest has been issued by a Court, the petitioner has reason to believe that he may be arrested by the police and therefore this application for anticipatory bail is very much competent is without any substance and has no force. 14. In the result, this application for anticipatory bail fails and stands dismissed. 15. We however make it clear we have not gone into the merits of the order of warrant of arrest and this order will not in any way shield the petitioner's right to challenge the legality and validity of such order in accordance with law. Urgent photostat certified copy of this order be given to the parties, if applied for, as early as possible.