27 Jan 2022 11:52 AM GMT
The Karnataka High Court has said that once an accused has appeared before the court, either personally or through his counsel, he cannot seek anticipatory bail by invoking section 438 of the Criminal Procedure Code (CrPC). Justice H P Sandesh thus dismissed the anticipatory bail petition filed by one Ramesh and granted him liberty to approach the Trial Court by filing the...
The Karnataka High Court has said that once an accused has appeared before the court, either personally or through his counsel, he cannot seek anticipatory bail by invoking section 438 of the Criminal Procedure Code (CrPC).
Justice H P Sandesh thus dismissed the anticipatory bail petition filed by one Ramesh and granted him liberty to approach the Trial Court by filing the necessary application for recalling the warrant issued against him.
As per the prosecution case, Deputy Range Forest Officer, Gauribidanur Range, recovered three number monitor lizards and three number gray francolin, in the house of petitioner. He then filed a complaint under Section 55(b) read with Section 51 of the Wild Life (Protection) Act, 1972 before the concerned Magistrate court.
The Trial court took cognizance of the said offence and registered a case and issued summons to the accused, who appeared through his counsel on 05.10.2020 and sought for exemption by filing an application under Section 205 of Cr.P.C. which was allowed by the Trial Court.
However, the accused remained absent subsequently and hence, NBW was issued against him. He then approached the session court seeking anticipatory bail which came to be rejected. Following which he moved the High Court.
Advocate Dhiraj A.K, appearing for the petitioner, submitted that no prima facie case was made out against the petitioner and the search conducted by the complainant was not in accordance with Section 50(8) of the Wild Life (Protection) Act, 1972.
It was contended that the complainant based on some information allegedly searched the house of petitioner without a search warrant and conducted a seizure under Mahazar and the very seizure itself is doubtful.
Prosecution opposed the plea:
It was submitted that the petition itself is not maintainable since, once the accused/petitioner has appeared before the Trial Court through his Counsel, he ought to have made an application for recalling the order before the Trial Court instead of invoked Section 438 of Cr.PC.
The bench relied on the judgement of the Karnataka High Court in the case of S.R. Nagaraj v. State of Karnataka reported in 2011 SCC OnLine Kar 3301 and in the case K. Somasekhar v. State of Karnataka reported in 2015 SCC OnLine Kar 8412.
It was held in these cases that once the accused appeared before the Trial Court and thereafter on account of his absence on any later date a warrant was issued by the Court for deliberate absence, the remedy of anticipatory bail under Section 438 Cr.P.C. is not available to such a person.
Taking note of the fact that the petitioner had appeared before the Trial Court through an advocate and also filed an application under Section 205 of Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the day, the court said,
"Once an application seeking an exemption was allowed, the petitioner again cannot invoke Section 438 of Cr.P.C., and instead of filing an application for recalling the warrant issued by the Court for non-appearance has approached this Court and also the Trial Court."
The court also considered that the appearance of the petitioner before the Trial Court has been suppressed in the petition. The bench said "When such being the factual aspects of the case, once he appeared through the Court, whether it is through Counsel or personally, he cannot agin seek anticipatory bail."
Following which it held, "The petitioner is legally permitted to appear and once he has been permitted to appear legally he cannot contend that he has not appeared before the Trial Court and hence petition under Section 438 of Cr.P.C., is not maintainable."
Case Title: Ramesh v. State Through Dy RFO
Case No: CRIMINAL PETITION NO.9975/2021
Citation: 2022 LiveLaw (Kar) 31
Date of Order: 21st January 2022
Appearance: Advocate Dhiraj A.K for petitioner; Advocate Vinayaka V.S for respondent
Click Here To Read/Download Order