Under Section 438 of the Code of Criminal Procedure, 1973, how does the filing of the charge-sheet bear on a plea for anticipatory bail?
Coram: Justice Bela M. Trivedi · Justice Prasanna B. Varale
Code of Criminal Procedure, 1973 — s.438 — Indian Penal Code, 1860 — ss.493, 376(2)(n) — Anticipatory bail — Charge-sheet filed — Continued cooperation — Code of Criminal Procedure, 1973 — s.438 — Bail where the accused cooperated and the charge-sheet is filed — Held: Where the accused has joined the investigation under interim protection and the charge-sheet has since been filed, anticipatory bail may be granted without expressing any opinion on the merits, on such terms as the Trial Court imposes. (¶7, 8) Code of Criminal Procedure, 1973 — s.438 — Cooperation a continuing condition; liberty to seek cancellation — Held further: Such protection is conditional on continued cooperation with the investigation, and the State retains liberty to apply for cancellation should any condition imposed by the Trial Court be violated or breached. Appeal allowed. (¶8, 9)
Under Section 438 of the Code of Criminal Procedure, 1973, how does the filing of the charge-sheet bear on a plea for anticipatory bail?
Once the investigation is complete and the charge-sheet has been filed, the custodial-interrogation rationale for refusing pre-arrest bail largely falls away. Here the Court took that fact together with the appellant''s having joined the investigation under its protection, and granted bail without expressing any opinion on the merits.
What conditions attach to an order granting anticipatory bail under Section 438 CrPC, and what remedy does the State retain?
The terms and conditions are left to the Trial Court to impose, and the accused must continue to cooperate with the investigation. The State remains at liberty to apply for cancellation of bail if any condition so imposed is violated or breached.
What order did the Supreme Court pass on the appeal against refusal of successive anticipatory bail?
The appeal was allowed. The Court directed that in the event of arrest in connection with the stated FIR the appellant be released on bail, if not required in any other case, on terms fixed by the Trial Court.
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Leave granted.
The present appeal arises out of the impugned judgment and order dated 23.08.2024, passed by the High Court of Gujarat at Ahmedabad in R/ Criminal Misc. Application (for successive anticipatory bail) No. 16462 of 2024, whereby the High Court had rejected the said application, filed by the present appellant, seeking anticipatory bail in connection with the F.I.R. No. 11203024220505 dated 16.07.2022, registered at Police Station-B-Division, District- Junagadh, for the offence punishable under Sections- Deepak Joshi 493 and 376(2)(n) of the Indian Penal Code (for short ‘IPC’). 2
Heard learned counsel appearing for the parties and perused the material on record.
It is sought to be submitted by the learned counsel, Mr. Virat Popat, appearing for the appellant, that the appellant had married the prosecutrix (respondent no.2) at the age of 47 years, and it was the third marriage of both the parties i.e. the appellant and the prosecutrix. He further submitted that the appellant has joined the investigation after he was granted protection against his arrest by this Court vide the order dated 01.10.2024.
Learned counsel appearing for the respondent- State, relying upon the additional affidavit filed by the Investigating officer, submitted that the investigation is over, and as per his instructions, the charge-sheet has already been filed in the case.
Learned counsel, Ms. Aastha Mehta, appearing for respondent no.2 (prosecutrix), however, has objected to the granting of the anticipatory bail to the appellant by submitting that the appellant had cheated the respondent no.2 (prosecutrix) under the pretext of marriage. She further submitted that their 3 marriage was also not registered, however they had married as per their customs.
Having regard to the submissions made by the learned counsels appearing for the parties and to the fact that now the charge-sheet has already been filed but, without expressing any opinion on the merits of the case, we are inclined to accept the present appeal.
Hence, it is directed that in the event of the arrest of the appellant, in connection with the F.I.R. No. 11203024220505 dated 16.07.2022, registered at Police Station-B-Division, District- Junagadh, he shall be released on bail, if not required in any other case, on such terms and conditions that may be imposed by the Trial Court. He shall continue to co-operate with the investigation.
It goes without saying that the respondent-State shall be at liberty to file appropriate application seeking cancellation of bail in case any of the conditions, that may be imposed by the Trial Court, are violated or breached by the appellant. 4
Accordingly, the appeal is allowed. 11. Pending application(s), if any, shall stand closed. .......……..............J. (BELA M. TRIVEDI) ........................J. (PRASANNA B. VARALE) New Delhi 18.02.2025
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