Uttarakhand High Court

ABA/225/2021 on 6 December, 2021

Author:
R.C. Khulbe

Bench:
R.C. Khulbe

Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
ABA No.225 of 2021
With
ABA No.240 of 2021
Hon'ble R.C. Khulbe, J.

Mr. Aditya Singh, learned counsel for the
applicants.

Mr. Deepak Bisht, learned B.H. for the State.
The applicants have filed the present
anticipatory bail applications under
Section 438

Cr.P.C. for the following common relief:-

"To direct that in case the applicant is arrested by
the investigating officer in connection with the FIR
No.83 of 2019 dated 22.08.2019 under
Section 304B

IPC, P.S. Clementown, District Dehradun
(cognizance taken under
Section 304B
IPC vide order
dated 25.01.2021 passed by the learned CJM,
Dehradun, in Criminal Case No.803 of 2021) she
shall be released on bail on any condition which this
Hon'ble Court may set upon the applicant herein.
It is argued by learned counsel for the
applicants that, initially, an FIR was lodged under

Sections 326
,
498-A
,
,
,
IPC and u/s ¾

D.P. Act
with P.S. Clementown, District Dehradun
against them; thereafter, they were arrested,
accordingly, bail applications were filed, in which
this Court as well as the Coordinate Bench granted
them bail vide orders dated 06.12.2019 and
15.01.2021 respectively. He further submitted that
after granting the bail, charge sheet was submitted
against the applicants under
Section 304B
IPC also;
he submits that since the accused have already been
enlarged on bail in the aforesaid offences;
accordingly, they are also entitled for anticipatory
bail under
Section 304B
IPC as well. It is also
submitted by learned counsel for the applicants that,
if any offence is added in the charge sheet, in that
circumstance, the accused will put their appearance
and move an application for granting bail in added
offence also, the concerned court will grant bail in
the added offence i.e. the original bail will continue
in the added offence also, as per the law laid down
by the Hon'ble Apex Court in the Constitutional
Bench in
Sushila Aggarwal and Others vs. State
(NCT of Delhi) and Another
, reported in (2020) 5
SCC 1.

Heard learned counsel for the accused and
learned counsel for the State. I have also gone
through the ruling of the Hon'ble Apex Court.

When the matter came up for hearing before
the Constitutional Bench of the Apex Court
in
the
above case
(Supra), in paragraph no.7, following
two questions were framed:-

"(1) Whether the protection granted to a
person under
Section 438
Cr.P.C. should be
limited to a fixed period so as to enable the
person to surrender before the Trial Court
and seek regular bail.

(2) Whether the life of an anticipatory bail
should end at the time and stage when the
accused is summoned by the court."

From the perusal of the judgment (supra), it is
clear that the questions framed in the aforesaid
paragraph relate to the anticipatory bail under

Section 438
Cr.P.C., although, in paragraph no.7.1,
the Hon'ble Apex Court also dealt with
Sections
and
Cr.P.C., but in paragraph no.77.1, the
Apex Court clearly held that, 'the observations
about the width and amplitude of the power
under Section 438, made in answer to the first
question, are equally relevant here too'.

It is clear that the Hon'ble Apex Court
answered the questions framed regarding the
anticipatory bail as envisaged under Section 438
Cr.P.C. and not under Sections 437 and 439 Cr.P.C.

Although, the Hon'ble Apex Court also
discussed the judgment rendered in the case of

Pradeep Ram vs. State of Jharkhand and
Another
, reported in (2019) 17 SCC 326, but the
Constitutional Bench of the Apex Court did not
overruled the judgment of
Pradeep Ram
(supra).

Now, it is a settled law, that if the anticipatory
bail is granted, it will continue till the conclusion of
the trial; if some offences were added, then the
accused will have a right to put his appearance and
move an application in the added offence also, the
concerned Court will enlarge the accused in the
added offence also, and there is no need to file fresh
bail bonds and the anticipatory bail will continue.

While in the present matter, no such
anticipatory bail was granted to the accused. The
accused were enlarged on regular bail only under

Sections 326
,
498-A
,
,
,
IPC and u/s ¾

D.P. Act
, but the charge sheet has subsequently
been submitted under
Section 304B
IPC against the
accused; accordingly, the Court cannot direct the
subordinate Court to enlarge the accused on bail on
the same sureties as furnished earlier.

In these circumstances, the present
anticipatory bail applications are hereby rejected.

Pending applications, if any, stand disposed
of.

(R.C. Khulbe, J.)
06.12.2021
BS