Anticipatory bail can be granted even after chargesheet has been filed

Anticipatory bail can be granted even after chargesheet has been filed

Adil Vs State of UP

Allahabad HC

08/12/2020

CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8285 of 2020

About/from the judgment:

Anticipatory Bail can even go on till the conclusion of the trial!

The High Court recently held that anticipatory bail can be granted even after a chargesheet in the criminal case has been filed.

This decision was given in a pre-arrest bail plea filed by one Adil, a law student at Aligarh Muslim University, who had been booked under Sections 307 (attempt to murder) and 504 (Intentional insult with intent to provoke breach of peace) of the IPC.

The Court, in its decision, cited the case of Sushila Agarwal v. State (NCT of Delhi) and held that the anticipatory bail need not be in place for a limited duration of time. In many cases, it can even go on till the conclusion of the trial. The High Court's power to grant an applicant anticipatory bail doesn't conclude after the submission of the chargesheet.

The Bench quoted from the Sushila case, "If the facts of the given case make the applicant entitled for grant of anticipatory bail, even after submission of charge sheet against him and cognizance of the same by the Court, the second anticipatory bail would be maintainable before the High Court even though the applicant was earlier granted anticipatory bail till the submission of charge sheet by the High Court."

The present Petitioner was earlier granted anticipatory bail till submission of the police report under Section 173(2) CrPC.

He had approached the High Court seeking anticipatory bail for the second time, after he was summoned by CJM, Aligarh in pursuance of a charge sheet submitted by the IO.

The AGA, appearing on behalf of the State, had argued that once anticipatory bail has been granted to the applicant and such bail has been availed, there is no circumstance where further anticipatory bail can be granted to him till the trial has been concluded. "Since the charge sheet has been submitted and cognizance has been taken thereof by the C.J.M., hence the applicant may apply for regular bail under Section 439 Cr.P.C or he may challenge the charge sheet and summoning order passed by the C.J.M., concerned," stated the AGA.

He relied upon Salauddin Abdul Samad Shaikh v. State of Maharashtra, (1996) VI SCC 667, wherein the Apex Court held that when the anticipatory bail is granted by the court of Session or the High Court, it is at the stage of incomplete investigation. The nature of offence against the offender is not before the court, therefore, anticipatory bail order should be of limited duration only and after the aforesaid duration expires the matter should be left for the regular court to deal with it and the court granting anticipatory bail should not substitute itself for.

The Court however observed that the above case does not impose any restriction or absolute bar on the court granting anticipatory bail even in cases where either cognizance has been taken or a charge sheet has been filed.

The Judge observed that Salauddin's case "only lays down a guideline that while considering prima facie case against an accused, the factum of cognizance having been taken and filing of charge sheet would be of some assistance for coming to the conclusion whether the accused is entitled for anticipatory bail or not."

The Judge further noted that this case stands overruled by a 5-Judge Bench in the Sushila Aggarwal case (supra).

The Petitioner's counsel also drew the Court's attention towards the judgment in Anirudh Prasad @ Sadhu Yadav v. State of Bihar, (2006), whereby the Apex Court directed the Patna High Court to consider the bail application of an applicant, who had filed a second application for anticipatory bail after submission of police report.

Hence, the present petition was allowed.

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