The Delhi High Court has ruled that the rejection or acceptance of anticipatory bail of an accused by the High Court is not relevant for consideration of the regular bail of the accused under Section 437(1) of the Code of Criminal Procedure, 1973.
The Bench comprising Justice Vipin Sanghi and Justice IS Mehta ruled, “While considering the regular bail application of the accused under Section 437(1) Cr PC, the factum of the rejection or acceptance of the anticipatory bail application, by itself, is not germane.”
It added that the factors which weighed with the court while either rejecting or granting anticipatory bail to the accused, as are relevant post the filing of the charge sheet, may be looked at by the court while dealing with the bail application of the accused under Section 437(1) of CrPC.
The court explained that while dealing with the bail application under Section 437 (1), the court which is seized of the final report/ charge sheet would be in a position to make a better assessment, and it should not get influenced by the conclusions drawn by the High Court while either accepting or rejecting the plea of anticipatory bail by the accused.
The clarification was issued during the hearing of a reference received by the high court from the CMM (North West), Rohini Courts, Delhi under section 395(2) of the Code of Criminal Procedure.
Another question before the court was whether it needs to delve upon the reasons of non-arrest given by investigating agency after rejection of anticipatory bail of the accused by the high court.
It noted that this question has already been answered by it in another case in 2017, and reiterated that “when the charge sheet is filed before the Court/Magistrate without arresting the accused, despite the rejection of his anticipatory bail application by the High Court, it is not open to the court to examine whether the exercise of discretion by the Investigating Officer (IO) - not to arrest the accused despite rejection of his anticipatory bail application by this Court, has been properly exercised.”
The Magistrate, it said, is only concerned with the final report/ charge sheet, as filed.
The court also considered whether it can grant bail to an accused who has been charge sheeted without arrest under Section 376 of the Indian Penal Code or any other offence punishable with imprisonment of life or death, in view of bar under Section 437(1)(i) of the Criminal Code.
It answered the question in the affirmative, adding that this is subject to the conditions that:
The court, however, refrained from examining the question whether the protection granted to a person under Section 438 of the Code should be limited to a fixed period so as to enable him to surrender before the Trial Court and seek regular bail. This was because it noted that there have been conflicting views of different Benches of the Supreme Court of equal strength on the issue and that it is currently under consideration before a larger Bench of the Apex Court.
Read the Judgment Here