16 May 2020

Submission of the charge-sheet is not a lock gate to seek anticipatory bail

F.I.R. alleging non bailable offence registere - During the course of investigation notices under Section 41(A) of Cr.P.C. have been served upon the accused upon which he has given reply through Email - After completion of the investigation, a charge-sheet against the accused filed in the Court - Court took cognizance and issued summons to accused.

Is application seeking anticipatory bail after filling of chargesheet tenable?

   Submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail.
   Section 438 Cr.P.C. contemplates an application to be made by person apprehending arrest of an accusation of having committed a non-bailable offence. It is indicative of the fact that the application for anticipatory bail is pivoted on an apprehension of arrest which invites exercise of power under Section 438 of Cr.P.C. The expression "reason to believe" or reasonable apprehension of arrest, a term substitute for each other is the governing factor to let off a person on anticipatory bail where submission of charge-sheet, is an idle parade. It is settled law now that the submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail but it ensures generation of apprehension of arrest.[Para No.34]

   When apprehension of arrest arises? The apprehension of arrest for a non-bailable offence, one can have at different stages, namely :-

(a) during the period of investigation by the police after registration of F.I.R. and before filing of the final report under Section 173 Cr.P.C.;

(b) during further investigation under Section 173(8), Cr.P.C. even after filing of the charge sheet under Section 173 Cr.P.C.;

(c) after taking cognizance by the Magistrate, summoning the accused under Section 204 Cr.P.C. through warrant;

(d) while the Magistrate committing the Sessions case to the Court of Session under Section 209 Cr.P.C. and remanding the accused to custody;

(e) during the enquiry or trial, if the Court, on the basis of the evidence let in, impleads a person as an accused under Section 319 Cr.P.C. for the purpose of summoning and detaining him under Section 319 (2) and (3) Cr.P.C.[Para No.38]

   Therefore, it can be said that during the investigation, when the police officer has decided not to arrest, there is no apprehension of arrest. But, after filing of the charge sheet and that too once the warrant/summon is issued to appear the accused, then there would certainly be an apprehension of arres[Para No.47]

   A person can apprehend arrest at the hands of the Magistrate for the purpose of remanding him to custody, while committing the sessions case to the Court of Session for trial with an accusation of non-bailable offence and this would certainly make that person to be entitled for approaching the Court under Section 438 Cr.P.C.[Para No.49]

Allahabad High Court

Siddharth Varadarajan

State Of U.P.

Decided on 15/05/2020

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