Person Added As Accused U/S 319 CrPC During Trial Can Also Apply For 'Anticipatory Bail' U/S 438 CrPC: Orissa High Court

The Orissa High Court has held that a person, who is added as an accused during trial by the Court under Section 319 of the Code of Criminal Procedure, is also entitled to seek anticipatory bail if he is summoned by the Court.

The Single Bench of Justice Sashikanta Mishra clarified that under Section 319(3) of the CrPC, the trial Court is empowered to detain a person summoned by it for the sake of inquiry or trial and thus, the person concerned will have a reasonable apprehension of loss of liberty.

“…if the trial Court decides to detain the petitioners exercising power under Sub-Section (3) of Section 319 of Cr.P.C. upon their appearance it would tantamount to curtailment of their liberty. This, in turn, is akin to arrest,” it observed.

The Court was hearing anticipatory bail applications filed by the petitioners who were added as accused persons by the trial Court, for commission of murder, subsequent to the submission of charge-sheet and initiation of trial.

Therefore, the moot question which arose before the High Court was whether a person added as an accused by the trial Court exercising power under Section 319 of CrPC is entitled to seek anticipatory bail under Section 438 of the CrPC.

The counsel appearing for the State raised objection to the maintainability of the applications and submitted that as the trial Court has issued summons to the petitioners, their apprehension of arrest is unjustified.

He further argued that anticipatory bail can be sought only when there is a reasonable apprehension of arrest by the police and not when an accused person is summoned by the trial Court.

On the other side, the counsel for the petitioners argued that the expression 'reason to believe' appearing under Section 438 is wide enough to cover any reasonable apprehension of a person being taken into custody.

He further argued that Sub-Section (3) of Section 319 confers power on the trial Court to detain a person appearing upon summons and therefore, the apprehension of the petitioners must be held to be reasonable.

After perusing the provisions under both the Sections, i.e. Sections 319 and 438 of the CrPC, the Court held that –

“Sub-Section (3) of Section 319 Cr.P.C. is clear to the extent that the Court has power to detain a person also appearing upon summons. To such extent therefore, the apprehension of the petitioners can be treated as genuine and reasonable.”

The Court also relied upon the decision of the Punjab and Haryana High Court in Bajinder Singh v. State of Punjab, 2015 SCC OnLine P&H 3229 and the judgment of the Rajasthan High Court in Manohar Lal Saini v. State of Rajasthan, (2015) SCC OnLine Raj 10662 wherein it was held that a person added as an accused while exercising power under Section 319 can also avail the remedy of anticipatory bail.

“Thus, this Court essentially finds that the petitioners, though summoned after being added as accused persons in the ongoing trial can verily lose their liberty upon their appearance,” it added.

Having regard for the aforesaid position of law and after going through the prima facie evidence, the Court was of the considered view that there is a reasonable doubt as regards involvement of the petitioners in the crime alleged.

As the trial Court has already summoned them, the Single Bench disposed of the anticipatory bail application directing the petitioners to appear before the trial Court and move for bail. The trial Court was ordered to grant them bail upon such terms and conditions, as it may deem proper.

Counsel for the Petitioners: M/s. B.B. Behera, S. Bahadur & S.C. Sahoo, Advocates

Counsel for the State: Mr. S.K. Mishra, Addl. Standing Counsel

Citation: 2024 LiveLaw (Ori) 3

Case Title: Jharu Naik & Anr. v. State of Odisha

Case No: ABLAPL No. 12669 of 2023

Date of Judgment: January 12,2024

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