2003 (4) TMI 602 - HC - Indian Laws

Anticipatory Bail Application Post-Cognizance: Clarification on Maintainability and Discretion

Shamim Ahmed and Ors. Versus State and Ors.

The Special Bench held that an application for anticipatory bail under Section 438 of the Code of Criminal Procedure is maintainable at the ... - Issues Involved:1. Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure is maintainable at the post-cognizance stage of a case instituted on a police report or complaint after the Court issued a process like a warrant of arrest for production of a person having committed a non-bailable offence.Issue-wise Detailed Analysis:1. Maintainability of Anticipatory Bail at Post-Cognizance Stage:The primary issue addressed by the Special Bench was whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) is maintainable after the court has taken cognizance of an offence and issued a process such as a warrant of arrest.Arguments and Precedents:- The court referred to previous judgments, including Sk. Alim v. State of West Bengal and Sri Pankaj Lochan Sahoo v. State, which held that anticipatory bail could be sought even after the submission of a charge-sheet or issuance of a warrant of arrest.- Contrarily, in Bimal Adak v. State, it was held that the right to anticipatory bail ends after the submission of a charge-sheet, relying on Salauddin Abdul Samad Sheikh v. State of Maharashtra.Legal Provisions and Interpretation:- Section 438 CrPC allows a person to seek anticipatory bail if they have reason to believe they may be arrested for a non-bailable offence. The court emphasized that the language of Section 438 is broad and unqualified, designed to secure personal freedom and the presumption of innocence.- The court noted that Section 438 does not explicitly restrict the stage at which anticipatory bail can be sought, and the legislative intent was to confer wide discretionary power to the High Court and Sessions Court.Submissions by Counsel:- Counsel for the petitioners argued that the question should be answered affirmatively, citing various case laws and the broad language of Section 438.- Counsel for the State contended that anticipatory bail should not be maintainable post-cognizance, arguing that once a court issues a process like a warrant of arrest, the stage for anticipatory bail has passed.Court's Analysis and Conclusion:- The court analyzed the structure of Chapter XXXIII of the CrPC, which deals with bail and bonds, noting that Sections 436, 437, 438, and 439 provide a comprehensive framework for granting bail at different stages.- The court observed that Section 438 does not preclude the filing of an application for anticipatory bail after the filing of a charge-sheet or issuance of a process under Sections 204 or 209.- The court emphasized that the power to grant anticipatory bail is discretionary and must be exercised judiciously, considering the facts of each case.- The court concluded that there is no bar to filing an application under Section 438 after the filing of a charge-sheet or issuance of a process in a complaint case. Such an application is maintainable even at the post-cognizance stage of a case instituted on a police report or complaint after the court issues a process like a warrant of arrest for production of a person having committed a non-bailable offence.Final Judgment:The Special Bench answered the question in the affirmative, holding that an application for anticipatory bail under Section 438 CrPC is maintainable at the post-cognizance stage. The pending applications were directed to be placed before the appropriate Benches for consideration in light of this judgment.