18 Nov 2022 3:22 PM GMT
Stressing that seeking anticipatory bail under Section 438 of CrPC is only a statutory right, the Allahabad High Court earlier this week said that the second and successive anticipatory bail application is not maintainable.The bench of Justice Suresh Kumar Gupta further observed that as opposed to Section 439 of CrPC (provision governing regular bail pleas), which flows from Article 21 of...
Stressing that seeking anticipatory bail under Section 438 of CrPC is only a statutory right, the Allahabad High Court earlier this week said that the second and successive anticipatory bail application is not maintainable.
The bench of Justice Suresh Kumar Gupta further observed that as opposed to Section 439 of CrPC (provision governing regular bail pleas), which flows from Article 21 of the Constitution of India, Section 438 of CrPC is merely a statutory right and the power to grant anticipatory bail does not flow from Article 21 of the Constitution.
"Section 439 relates to the Constitutional right of the accused whereas Section 438 to his statutory right. The provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused," the Court remarked.
[NOTE: Recently, in Sushila Aggarwal vs State (Nct Of Delhi) and others, the Supreme Court remarked that the interpretation that Section 438 of CrPC doesn't encapsulate Article 21 is erroneous. Further, referring to Judgments wherein it has observed that Section 438 CrPC is not linked with Article 21, the Apex Court opined that this interpretation was contrary to the broad terms of the power declared by the Constitution Bench of the Top Court in Gurbaksh Singh Sibbia Etc vs State Of Punjab 1980 AIR 1632.]
Speaking about the nature the Section 439 of CrPC, the Court further opined that if the regular bail application of the accused is dismissed once, he can move second and successive bail application on the ground of substantial change in the factual situation between the earlier bail application and the subsequent one.
However, the Court also added that the filing of second and successive bail applications on the basis of new arguments and new twists on the same facts cannot be encouraged.
Further, stressing that speedy trial is a Constitutional right of the accused provided to him by Article 21 of the Constitution, the Court categorically observed that if the first application of the accused who is in custody is dismissed on merits and the trial is delayed, the accused has a right to make a second bail application on the ground of delayed trial.
On the other hand, regarding the nature of Section 438 of CrPC, the Court opined that the second and successive anticipatory bail application is not maintainable. With this, the Court dismissed a second anticipatory bail plea moved by a rape accused in view of the fact that his first such bail plea had been dismissed in December 2021.
The case in brief
One Raj Bahadur Singh, who has been booked under Sections 363/366/376 IPC & 3/4 of the POCSO Act, moved the instant second anticipatory bail plea on the ground that he had been falsely implicated in the case.
His counsel submitted that the first anticipatory bail application was rejected on the ground of the criminal history of the applicant sent by the police station concerned. It was further submitted that the police mentioned that the applicant has a criminal history of 11 cases, however, the reality was that there are only 5 criminal cases pending against him, and therefore, he moved the instant second pre-arrest bail due to changed circumstances.
However, the Court, while stressing that second and successive anticipatory bail application is not maintainable, dismissed his second anticipatory bail plea by observing thus:
"Every aspect has been dealt with by the coordinate bench of this Court passed in the first anticipatory bail application bearing No. 19577 of 2021 vide order dated 14.12.2021. The applicant already challenged the summoning order to face trial U/s 319 CrPC by means of Application U/s 482 CrPC No. 15004 of 2021 which was disposed of by this Court vide order dated 31.08.2021 with a direction to the applicant to seek remedy of regular bail. Due to non-cooperation of the applicant, the trial is still pending since year 2020. Thus, this is not a fit case for anticipatory bail and is hereby rejected."
Case title - Raj Bahadur Singh v. State of U.P. [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION 438 CR.P.C. No. - 8376 of 2022]
Case Citation: 2022 LiveLaw (AB) 493
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