Abdul Kadar Khairani and Others vs State of C.G.

Sunil Kumar Sinha, J.—This is the second application filed u/s 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicants, who are apprehending their arrest in connection with Crime No. 63/2006 registered at Police Station - Sahaspur Lohara, District - Kabirdham (Chhattisgarh) for the offence punishable u/s 498-A read with Section 34 of the IPC.

The earlier bail application was heard and allowed by this Court by a common order dated 16.6.2006 passed in M. Cr.C. No. 1295/2006 (Abdul Kadar Khairani and two Ors. v. State of Chhattisgarh) and M. Cr.C. No. 1323/2006 (Smt. Nishant Meman v. State of Chhattisgarh). By the said order, it was directed that in the event of arrest of these applicants, they shall be released on bail on each of them furnishing a personal bond in sum of Rs. 10,000/- with one surety each in like amount to the satisfaction of the officer arresting them. It was also directed that the said order shall remain in force for a period of 45 days form the said date, during which, the applicants may apply for regular bail before the concerned Court.

Learned Counsel for the applicants submits that after the aforesaid protective umbrella opened in favor of the applicants, the applicants applied before the Chief Judicial Magistrate for grant of regular bail u/s 437 Code of Criminal Procedure but their application was dismissed on merits vide order dated 27/6/2006 (Annexure A-2). Thereafter, they filed another application u/s 439 of the Code of Criminal Procedure before the Sessions Court, which was also dismissed vide order dated 30.6.2006 (Annexure A-3). After rejection of the aforesaid application by the Sessions Court, the applicants filed an application u/s 439 of the Code of Criminal Procedure before the High Court Vide M. Cr.C. No. 2059/2006. This miscellaneous applications came up for hearing on 10/8/2006, but the same was withdraw with a liberty to file afresh after all the application surrender themselves to custody in accordance with law (Annexure A-4). He further submits that since the period of protective umbrella had expired on the date of hearing before the High Court i.e. on 10.8.2006, the said application was withdrawn with aforesaid liberty, but instead of surrendering before the appropriate Court, the applicants have again moved before this Court u/s 438 of the Code of Criminal Procedure. His submission is that their apprehension still remains; therefore, a fresh order u/s 438 of the Code of Criminal Procedure may be passed after entertaining this second bail application in changed circumstances.

In the opinion of this Court, this second bail application filed u/s 438 of the Code of Criminal Procedure cannot be entertained in the prevailing facts and circumstances of this case, as the earlier bail application of the applicants was allowed and the applicants, after travelling to the High Court, ultimately, withdrew their application filed u/s 439 of the Code of Criminal Procedure and availed full opportunity for grant of regular bail. The concept of entertaining the subsequent bail application in the changed circumstance cannot be applied when the earlier bail application was allowed. In fact, if this subsequent bail application filed u/s 438 of the Code of Criminal Procedure is entertained, it would go against the spirit of law laid down by the Apex Court in the matter of Adri Dharan Das Vs. State of West Bengal, wherein referring to the decision rendered in the matter of Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, nd K.L. Verma Vs. State and Another, , the supreme Court has held as follows :

As observed in Adri Dharan Das Vs. State of West Bengal, , the protection in terms of Section 438 Code of Criminal Procedure is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 Code of Criminal Procedure mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 Code of Criminal Procedure Shall be rendered meaningless and redundant. In K.L. Verma Vs. State and Another, , it was observed : "Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire." The expression "or even a few days thereafter" relates to grey areas. If the protective umbrella of Section 438 Code of Criminal Procedure is extended beyond what was laid down in Salanddin case1 the result would be clear bypassing of what is mandated in Section 439 Code of Criminal Procedure regarding custody. In other words, till the applicant avails remedies up to higher Courts, the requirements of Section 439 become dead letter. No part of a stature can be rendered redundant in that manner.

Entertaining this Second bail application u/s 438 of the Code of Criminal Procedure after being unsuccessful in securing bail u/s 439 of the Code of Criminal Procedure during the entire period of protective umbrella granted in earlier bail application, shall amount to take steps for opening another protective umbrella, in this manner, to the period ad infinitum rendering bypassing of what is mandated in Section 439 of the Code of Criminal Procedure regarding custody.

This second bail application filed u/s 438 of the Code of Criminal procedure cannot be entertained and the same is dismissed at the motion stage itself.