IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1257 of 2010 1. BISHUNDEO SAHU S/O LATE BIRANCHI SAHU R/O NORTH HAJIPUR WARD NO.13,NEAR KALI ASTHAN,P.S.- CHITRGUPTA NAGAR,DIST.- KHAGARIA.---PETITIONER Versus 1. THE STATE OF BIHAR with Cr.Misc. No.2875 of 2010 1. RAMA SHANKAR PANDEY 2. ARTI DEVI 3. ASTHA KUMARI 4. SMITA KUMARI ALIAS SMITHA KUMARI 5. SURESH CHANDRA BHATT 6. GAURI SHANKAR PANDEY-----PETITIONERS . Versus THE STATE OF BIHAR . with Cr.Misc. No.21131 of 2010 HARI KUMAR JHA . Versus STATE OF BIHAR . ----------- For the Petitioners:- Mr. Rana Pratap Singh, Sr.Advocate & Mr. Rakesh Kumar,Advocates For the State:- Mr. Lala Kailash Bihari Pd, Sr.Adv. O R D E R 6 20.01.2011 These matters have been referred by Hon‟ble Single Judge, for deciding the issue, that if the previous anticipatory bail order was for a limited period till submission of the charge-sheet and the accused after grant of anticipatory bail has surrendered before the Court for furnishing bail 2 bond, whether in such cases on submission of charge-sheet, second anticipatory bail application is maintainable or the applicant will have to surrender and obtain an order of bail under Sections 437 or 439 of the Code of Criminal Procedure. The single Judge has referred these matters in view of divergent opinion among the Judges about the maintainability of the second anticipatory bail application in such circumstance. 2. Petitioners in these applications were granted anticipatory bail till submission of the charge-sheet. Subsequently when the charge-sheet was submitted, again they filed application for grant of anticipatory bail, which gave rise to question whether in terms of previous order, they are required to appear and surrender before the Court below for seeking regular bail or their prayer for grant of anticipatory bail on the second occasion could be allowed. 3. The issue has been framed in view of the constitution bench decision of Apex Court in the case of Guru Baksh Singh Sibia Vs. State of 3 Punjab reported in AIR 1980 SC 1632 as well as divergent views taken by different Benchs in the case of Salauddin Abdul Samad Shaikh Vs. State of Maharashtra reported in (1996) 1 SCC 667, in the case of Nirmaljeet Kaur Vs. State of M.P. as well as in the case of Mahendra Prasad Singh Vs. State of Bihar reported in 2004(3) PLJR 491, Sheochandra Singh Vs. State of Bihar reported in 2007(4) BBCJ V-66 as well as in the case of Jagnarayan Yadav alias Babajee and ors. Vs. State of Bihar, reported in 2010 (2) PLJR 684. The view taken in Salauddin‟s case has been followed in all these cases, with certain observations/modifications but so far the view taken by the learned single Judge in the case of Anirudh Pd. alias Sadhu Yadav Vs. State of Bihar reported in 2006(2) PLJR 676 is concerned, a different view has been taken. 4. Section 438 was introduced in the Code of Criminal Procedure on recommendation of the Law Commission in its forty first Reports. Section 438 Cr.P.C, contemplates an application by a person on an apprehension of arrest in regard to the 4 commission of non-bailable offence. The object of the provision under Section 438 Cr. P.C. was to give relief to a person from unnecessary harassment and discourage in case of apprehension of arrest for non- bailable offence. This privilege could be granted on an application filed before the High Court or the Sessions Court, if the Court concerned is satisfied that (i)the person will not abuse the liberty of anticipatory bail. (ii) The facts of the case reveal false implication of applicant in the matters of non-bailable offence. (iii) The applicant has reasonable apprehension of being arrested in the case. (iv) The person concerned will not abscond and will make himself available to face trial and also that the privilege of anticipatory bail will not be otherwise misused by person concerned. 5. Shri Rana Pratap Singh, Senior Advocate, while addressing the Court on this issue has referred different decisions, right from AIR 1980 SC 1632 ( Gurubaksh Singh Sibia Vs. State of Punjab), up to 2010(2) PLJR 684 ( Jag Narayan Yadav vs. 5 State of Bihar). He has submitted that it was for the first time in the case of Gurubaksh Singh Sibia (supra) that the Apex Court has considered the scope of Section 438 Cr.P.C, while granting anticipatory bail and discussed the jurisdiction of the Court. The view of the Apex Court in Gurubaksh Singh‟s case was that amplitude of judicial discretion, given to the High Court and the Court of Sessions should not be cut down by reading into statute. It is for the High Court and the Court of Sessions, to whom the anticipatory bail application is made to exercise freely their judicial discretion, on the particular facts and circumstances of the case and on such conditions as the case may warrant. The ends of justice will be better served by trusting these Courts governing the grant of bail, then by divesting them of their discretion, which the legislature has conferred upon them, by laying down inflexible rules of general application. The view expressed by the constitution Bench, sufficiently indicated that how and in which manner an application, for anticipatory bail should be 6 considered. The only consideration was the judicial discretion of the concerned Court depending on the facts and circumstances of a particular case. 6. However, in this very decision, the Constitution Bench has held that provisions of Section 438 Cr.P.C. cannot be invoked after the arrest of the accused. Grant of anticipatory bail to an accused, who is under arrest, involves contradiction to term of provision under section 438 Cr.P.C., as the first pre-condition for granting anticipatory bail is a reasonable apprehension of being arrested, on an accusation of having committed a non-bailable offence. The constitution Bench also decided that operation of an order passed under Section 438 Cr.P.C. necessarily should not be limited in point of time. The normal rule should be, not to limit the operation of the order in relation to period of time. 7. But the view of Apex Court in Gurubaksh Singh‟s case was changed in Salauddin Vs. State of Maharashtra (1996) 1 SCC 667. In this decision the view of the Apex Court was that if any person 7 has reason to believe that he may be arrested on an accusation of having committed non-bailable offence, the High Court or the Court of Sessions, may, if it thinks fit, direct that in the event of arrest, he shall be enlarged on bail, it may include such conditions, having regard to the facts of the particular case. It was also held that since anticipatory bail is granted to any person in anticipation of arrest in non-bailable case, it does not mean that the regular Court, which is to try the offender, should be bypassed and for that reason the High Court or the Court of Sessions should fix a outer date for continuation of bail and on the date of its expiry, petitioner should be directed to move for regular bail. The anticipatory bail as per decision was an ad-interim relief till the investigation is going on. Once investigation is completed and charge- sheet submitted bringing some tangible evidence against the accused, he has to surrender before the Court having jurisdiction for regular bail. 8. The earlier view of the Apex Court in (1996) 1 SCC 667 was also upheld in the decision 8 reported in (1998) 9 SCC 348 ( K.L.Verma Vs. State and another), where the Apex Court was of the view that the order of anticipatory bail do not ensure restraining from arrest till the end of trial but for a limited duration. The matter should be left for regular bail, giving sufficient time to the accused to move regular Court for bail and only in case of refusal by the Regular Court, to approach Higher Court. 9. The view taken in K.L. Verma‟s case did not find favour in Bharat Choudhary Vs. State of Bihar ( 2003) 8 SCC 77. In this case anticipatory bail of the petitioner had been rejected by the High Court and appeal was preferred by him before the Supreme Court. The Apex Court was inclined to grant bail to the petitioner Bharat Chowdhary but a serious objection was raised by the counsel appearing for the State. The objection of the State Counsel was that since trial court had taken cognizance of the offence, section 438 Cr.P.C. cannot be made applicable for granting anticipatory bail and only remedy available to the appellant is to 9 approach trial Court, surrender before it and apply for regular bail. The objection raised by the State Counsel, however was not found acceptable to the Supreme Court and it was held that object of Section 438 Cr.P.C. was to prevent undue harassment of the accused persons on account of pre-trial arrest. While granting anticipatory bail, the consideration of gravity of the offence should an important factor. Simply because cognizance has been taken, these things in itself cannot be construed as prohibition against grant of anticipatory bail. 10. The Apex Court‟s again reverted back to the findings recorded in Salauddin case (Supra) in Nirmaljeet Kaur‟s case. The view of the Apex Court in this case was also that anticipatory bail should be granted for a limited duration, so as to enable the accused to move the regular Court for bail, in terms of Section 439 Cr.P.C. Such limited duration may extend to the date on which bail application filed by the accused is disposed of or even few days thereafter to enable the accused to move 10 higher Court. This view was not accepted by another Bench of the Apex Court in K.L.Verma‟s case (Supra). However in Nirmaljeet Kaur Vs. State of M.P (2004) 7 SCC 558, also the view taken in 1996(1) SCC 667 was affirmed, holding that a person who had been granted anticipatory bail under Section 438 Cr.P.C. for a limited period, has to move regular court for bail under Section 439 Cr.P.C. But in this case a new theory was propounded that after bail is not granted within that period, he has to surrender so that application under section 439 Cr.P.C. can be taken for disposal. High court, cannot during the pendency of the application under Section 439 Cr.P.C., by a blanket order extend the ad-interim anticipatory bail, so as to enable the accused to obtain bail under Section 439 Cr.P.C. 11. Observation of the Supreme Court in K.L.Verma‟s case was that even after expiry of the limited period of anticipatory bail, for a few days ad- interim relief can be granted to the accused to move higher Court. This view was held per in curium as 11 the decision was without giving reference to the requirement of Section 439 Cr.P.C. 12. Similar view has also been taken in the decision reported in 2009 (2) BBCJ 119, where it has been held that protection in terms of Section 438 Cr.P.C is for a limited duration, during which one has to move to the regular Court for bail in terms of Section 439 Cr.P.C. Mandate of Section 439 Cr.P.C. is that the applicant has to be in custody. The distinction between order under Sections 438 and 439 Cr.P.C. shall be rendered meaningless and redundant, if the protective umbrella under Section 438 Cr.P.C. is extended beyond the required period. 13. The view taken in the decision reported in 2006(2) PLJR 676 (Anirudh Prasad vs. State of Bihar), is on the line of decision reported in Gurubaksh Singh‟s case as well as Bharat Choudhary‟s case, where it has been held that mere submission of the charge-sheet does not denude the Court, the power to grant anticipatory bail. As a proposition of law, it cannot be said that in 12 a case, in which once the anticipatory bail is given till submission of charge-sheet, another application cannot be entertained, based on the premise that later, on investigation, fresh materials come. 14. On perusal of all these decisions what transpires, that the scope of Section 438 Cr.P.C. has been considered differently in different decisions. In most of the cases the view of the Apex Court is that an accused cannot be granted anticipatory bail from the stage of investigation, till the stage of trial, since it is a protection given to the accused from harassment, in a case where the investigation is in the initial stage. But once the accused is charge-sheeted and material evidence has been collected against him, he will have to surrender before the Trial Court and pray for regular bail. 15. What I find that scope of Section 438 Cr.P.C. is to give relief to an accused who anticipates his arrest in connection with non- bailable offence. The Court is empowered in exercise of jurisdiction under Section 438 Cr.P.C. to 13 grant him bail in anticipation of arrest. That arrest can be before submission of charge-sheet or after submission of the charge-sheet or after the cognizance has been taken in the case. If the Court has applied its juridical mind and is of this view that the person concerned despite being named as accused in a non-bailable offence is capable of granting anticipatory bail for the reason that (i) there is no chance of misuse of privilege of bail by him (ii) There is no apprehension of his absconding (iii) no chance of tampering with the evidence and (iv) will present himself for facing trial, in such cases, even if charge-sheet is submitted or cognizance is taken, anticipatory bail can be granted. Anticipatory bail which was granted earlier to an accused will not come to an end, and it will continue till conclusion of the trial, unless the order granting anticipatory bail is either cancelled by a judicial order, or the accused has been taken into custody, simply because the charge-sheet is submitted, it does not mean that the person who was granted anticipatory bail, has come beyond the protective umbrella of 14 section 438 Cr.P.C. 16. Only distinction in between Sections 438 and 439 Cr.P.C. is that bail granted in exercise of jurisdiction under Section 438 Cr.P.C. is before the arrest of the accused and under Section 439 Cr.P.C, it is granted when the accused has either surrendered or has been taken into custody. The privilege which is given to the accused under both the sections are the same, but only distinction is of stage. 17. On account of certain changes and amendment brought in Section 438 Cr.P.C., in case of grant of anticipatory bail, the petitioners-accused has to surrender before the Court concerned. In case where anticipatory bail has been granted for a limited period, till submission of the charge-sheet, the petitioner again has to make a fresh prayer for bail, since, already on earlier occasion he had to surrender before the concerned Court and had furnished bail bond, so on submission of charge- sheet, the first pre-requisite for grant of anticipatory bail i.e. the person concerned must not have been 15 arrested or surrendered before any Court, is not available to him. He has lost the requisite criteria of granting anticipatory bail, in that case except the surrendering before the competent Court for grant of regular bail, he is left with no other option. 18. A similar matter was considered in case of bailable offence. A person who is named as accused for bailable offences and granted bail by the police on execution of bail bond. Subsequently on completion of investigation, if the charge-sheet is submitted for non-bailable offence or despite submission of charge-sheet for bailable offence, cognizance is taken by the Magistrate for non- bailable offence, which he can make prayer for anticipatory bail. This issue was considered and decided in the case of Mahendra Pd. Singh vs. State of Bihar ( 2004 (3) PLJR 491). In this decision it was held that once the bail had been granted and bail bond executed, at a later stage, if the offence is treated as non-bailable, the applicant cannot file his application for grant of anticipatory bail. The only remedy available to him is to 16 surrender before the concerned Court. The Court concerned will grant him bail without taking into custody, considering his conduct while on police bail and also that he has not misused the privilege of bail. 19. In case of non-bailable offences also, similar view can be taken, in case anticipatory bail was granted for a limited period till submission of the charge-sheet. Since the accused has already surrendered before the Court below for grant of anticipatory bail and has executed bail bond, as such at his instance another anticipatory bail application can not be maintainable. He will have to surrender and pray for regular bail under Section 439 of the Code of Criminal procedure. The Court concerned, instead of taking him into custody, considering the previous order of anticipatory bail passed in his favour and also that he has not misused the privilege or his conduct is such that despite submission of charge-sheet or order taking cognizance, he is capable of granting bail, will grant him bail. In case where the anticipatory bail granted 17 for limited period has been misused, the concerned Court will have discretion, either to grant or refuse the bail. In case of non-bailable offence, Anticipatory bail, if granted for limited period, the Court concerned will pass order in similar manner as laid down in the case of Mahendra Pd. Singh (supra). In no case, second anticipatory bail application at the instance of such accused person is maintainable. 20. So far petitioners in these Criminal Miscellaneous applications are concerned, they are also directed to surrender before the concerned Court within four weeks from the date of this order. In case these petitioners will surrender and file their applications for bail under Section 439 of the Code of Criminal Procedure, the concerned Court will pass an order in the similar manner as has been decided in the case of Mahendra Prasad Singh vs. State of Bihar reported in 2004(3) PLJR 491. 21. These petitioners will be granted bail without taking them into custody as there is no allegation against them that during the limited 18 period of anticipatory bail or the provisional bail order passed during pendency of these applications by the High Court, they have misused the privilege of bail. 22. These applications are allowed. (Mridula Mishra,J.) 23. Dharnidhar Jha, J.- I had the privilege of going through the order proposed by my esteemed sister Smt. Mishra, J., on the reference made by the learned Single Judge by order dated 12.5.2010, jointly passed in Cr. Misc. petition No. 1257 of 2010 and Cr. Misc. petition No. 2875 of 2010. It appears that subsequently another petition bearing Cr. Misc. No. 21131 of 2010 was also referred to the larger Bench by an order passed on 7.7.2010 by the same learned Judge who had passed the order of reference on 12.5.2010. 24. Considering the matter and the issue which was referred and placed before us for decision in spite of having deeply been benefited by the erudite order proposed by my esteemed Sister, I want to express my own opinion on the 19 issue. 25. The three petitions had been filed by the accused persons of three different cases, as indicated in the orders of reference, who had been granted anticipatory bail by competent courts for a particular duration, i.e., up to the submission of the charge-sheet. On the charge sheets being submitted, the original court of jurisdiction took cognizance of the offence on those basis and issued summons for appearance of the accused persons. Because the accused of those three cases were on bail under Section 438 Cr. P.C. for that limited period, they filed fresh petitions before the respective Sessions Judges, namely, of Khagaria, Buxar and Patna, but those petitions were dismissed by different orders passed in the fresh petitions preferred by the accused persons. Those accused persons preferred three Cr.Misc. petitions in this Court which were listed before the learned Single Judge. The learned Single Judge, finding that the petitioners were placing before his Lordship the decision of this Court reported in 2006(2) P.L.J.R. 20 676 Anirudh Prasad Yadav alias Sadhu Yadav Vs. State of Bihar to buttress their submission that their petitions were very much maintainable in spite of the three decisions of this Court reported in 2004(3) P.L.J.R. 491, Mahendra Singh Vs. State of Bihar, 2007(4) B.B.C.J. V-66 Sheo Chandra Singh and anr. Vs. State of Bihar and 2010(2) P.L.J.R. 684 Jag Narayan Yadav alias Babajee Yadav Vs. State of Bihar taking a contrary view, found that there was a conflict of opinion on the maintainability of such petitions amongst the Judges of this Court and, as such, directed listing of the three petitions before a larger Bench so as to ironing out the differences in opinion of the Court on similar issue. This was how the three petitions were placed before us for reconsideration. 26. On perusing the order of reference dated 12.5.2010 passed jointly in Cr. Misc. No. 1257 of 2010 and Cr. Misc. No. 2875 of 2010 what appears is that the learned Judge was rather referring the issue to a larger Bench for deciding the correctness of the above decisions by noting as to whether an 21 accused who had been granted anticipatory bail under Section 438 Cr. P.C. for a limited period, i.e., up to the submission of the charge sheet, could he be entitled to maintain a similar petition under Section 438 Cr. P.C. before the competent court again after submission of the charge sheet. 27. While enacting the Code of Criminal Procedure, 1973, the legislature was considering the 41st Report of the Law Commission which had proposed introduction of the provision in the Code enabling the court to grant anticipatory bail. The relevant suggestion was appearing in paragraph 39.9 of its Report. The Law Commission, at the same time, was also presenting a draft Section for consideration. It was pointing out, “the necessitity for granting anticipatory bail arises mainly because some influential persons try to implicate their rivals in false case for the purpose of disgracing them or for other purposes by getting them detained in jail for some time. In the recent times, with the accentuation of the political rivalry, this tendency is showing signs of steady increase. Apart from false 22 cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to the custody, remain in prison for some days and then apply for bail.” 28 The report of the Law Commission was accepted by the Parliament. While amending Cr. P.C., 1898, it introduced a new provision vide Section 438 Cr. P.C. What is the crux in matters of granting anticipatory bail has been pointed out time and again and it has consistently been noted by different decisions, probably, the first which was coming from this Court in 1974 P.L.J.R. 516 Sk. Nizamuddin Vs. State of Bihar and anr. In that case S.K.Jha,J. ( as his Lordship then was) was pointing out in paragraph 4 of the report as to what could be the import of the terms like „accusation‟ and „reason to believe‟ besides the meaning of other terms like „suspected of the commission of any non-bailable offence.‟ While considering the ambit and scope of the section his Lordship was further considering the 23 comparative scope and ambit of Section 438 Cr. P.C. with Sections 437 and 439 Cr.P.C. and was holding as under: “It was submitted that whereas Section 437 speaks of bail to be granted to „any person accused of or suspected of the commission of any non-bailable offence‟ and Section 439 (1) speaks of such bail to „any person accused of an offence and in custody‟, Section 438(1) on the contrary speaks of