The Patna High Court has recently observed that if before hearing the regular bail application of the accused, the Judicial officer in a subordinate court asks the applicant (who has now been arrested) to first withdraw anticipatory bail petition pending before the High court, then the concerned officer may be held responsible for contempt of court.
The bench of Justice Rajeev Ranjan Prasad made this significant observation while hearing a matter wherein the anticipatory bail petition of one Rahul Kumar was being considered by the court. In fact, during the pendency of his anticipatory bail petition, the petitioner was arrested.
It may be noted that once an accused is arrested, his/her anticipatory bail petition becomes infructuous and the same stands terminated.
In the present case, when the Petitioner (Rahul) moved before a Chhapra court (with his regular bail application) he was asked by the said court to first produce an order showing withdrawal of his anticipatory bail petition. Consequently, he urged the high court to allow him to withdraw his petition.
This High court was informed by the Counsel of the petitioner that the Court below is not entertaining a regular bail application of an accused who has earlier filed an anticipatory bail application and the same is pending before this Court. The accused persons are asked (by the Court below) to produce an order showing withdrawal of anticipatory bail application.
In its order, the high court observed that a Coordinate Bench of this Court in Cri. Misc. No. 21360 of 2015 had ruled that upon the arrest of an accused, the proceedings in relation to anticipatory bail become infructuous.
In the said case (Cri. Misc. No. 21360 of 2015) an accused (named Matin) was arrested during the pendency of his anticipatory bail application before the High court. It was stated by him that the lower court was not ready to hear his regular bail application on the ground that his anticipatory bail application was pending in the High Court.
In the said case, the High Court had disposed of the petitioner's anticipatory bail application with an observation that "I am yet to see a more absurd prayer. Upon (the) arrest of a person all proceedings in relation to anticipatory bail become infructuous and no Magistrate could ever make such an observation."
In the present case, the Court said that,
"If any of the Judicial officer(s) in the court below is not following the said order and observations of the learned Coordinate Bench (Cri. Misc. No. 21360 of 2015), they may be held responsible for committing contempt of Court and in a specific case brought to the notice of this Court it may be taken very seriously."
Further, the bench in its order also noted,
"During this pandemic period for the aforesaid reason alone if any person lying in (the) jail is suffering, it is not only (the) violation of the constitutional and human rights of an accused but is also a matter of judicial indiscipline."
Lastly, the court directed the Registrar General of the court to circulate this order by sending it to all the learned District and Sessions Judges "who in turn will be responsible to bring it to the notice of all the judicial officer of their respective court(s)".
It may be noted that a five-judge Constitutional Bench in the case of Gurbaksh Singh Sibbia Etc vs State Of Punjab 1980 AIR 1632 had held that the provisions of Section 438 cannot be invoked "after the arrest of the accused". However, after his/her arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
Case Title: Rahul kumar @ Rahul Raj v. State of Bihar
Case No.: Criminal Miscellaneous No. 19874 of 2020
Quorum: Justice Rajeev Ranjan Prasad
Appearance: Advocate Ansul (for Petitioner), APP Akhileshwar Dayal (for State)
Click Here To Download Order