Vikash Jain vs State Of Chhattisgarh

Heard.

This is the second application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant, who is apprehending his arrest in connection with Crime No.234/2022 registered at Police Station Saraswati Nagar, Raipur (CG) for the offence under Sections 120-B, 406, 420 of the IPC.

The earlier bail application of the applicant vide order dated 12.1.2023 passed in MCRCA No.1580/2022 was dismissed as having become infructuous.

At the outset, learned Senior Counsel for the applicant would submit that during pendency of anticipatory bail application i.e. MCRCA No.1580/2022, the applicant has been arrested on 11.1.2023. Learned Senior Counsel for the applicant would further submits that the Chief Metropolitan Magistrate, Karkodma Court, Delhi allowed the transit bail on 12.1.2023 and observed that non-bailable warrants have not been issued by the concerned Court at Raipur. The offences alleged in the FIR are punishable with the imprisonment for less than 7 years and squarely covered by the judgment of the Hon’ble Apex Court in Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 and the observation made in the said judgment has been mentioned in the order, which reads thus :

“law obliges that the police officer shall, where such person (person to whom notice u/s. 41.1A Cr.P.C.) has been issued, fails to comply with the terms of the notice, the police officer may, subject to orders as may have been passed by a competent court in this behalf, arrest may for the offence mentioned in the said notice…....law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of the notice, he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that arrest is necessary.”

Learned Magistrate further observed that the copy of e-mails annexed with the bail application shows that the accused has duly replied to the notices issued by the Investigation Agency. No reason has been mentioned by the Investigating Agency as to why detention of the accused is necessary in the said case. Hence, a direction was made to grant transit bail up to 17.1.2023.

Learned Senior Counsel for the applicant further submits that MCRCA Nos.1580/2022 and 1650/2022 were listed before this Court on the same day i.e. 12.1.2023 for hearing. Since it came to their notice that the present applicant has already been arrested at New Delhi, this Court was informed immediately about the same and a submission was made that the application in respect of the present applicant had become infructuous. Accordingly, the said application was dismissed in respect of the instant applicant, as having become infructuous. However, the other co-accused - Anil Kumar Malhotra and Rohit Puri have been enlarged on anticipatory bail, against whom, the allegations were same. Learned Senior Counsel would further place reliance on the matter of Deepak Bhalla Vs. State of Chhattisgarh, 2017 SCC OnLine Chh 1388 and submit that in the said case, accused - Deepak Bhalla was arrested on 23.5.2017 and transit bail was granted with a direction to the said accused to appear before the JMFC on 7.6.2017 and on 7.6.2017, he moved an anticipatory bail application before the Sessions Judge, Raipur and the same was rejected. Hence, he moved an anticipatory bail application before this Court vide MCRCA No.815/2017 and in such circumstances, the matter was taken up for consideration and was allowed on merits. Learned Senior Counsel submits that in the instant case, the matter has not been dealt with on the aspect of arrest. However, he fairly submits that in the said matter, the issue with regard to the fact that when a person has been arrested and granted transit bail, an application under Section 438 of the Cr.PC would lie or not has not been dealt with.

At this juncture, learned counsel for the Objector places reliance on the matter of Shri Gurubaksh Singh Sibbia and others Vs. State of Punjab, (1980) 2 SCC 565, in which, para 39 reads thus :

“39. Fifthly, the provisions of section 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.”

In view of the aforesaid submissions, learned Senior Counsel for the applicant submits that he does not want to pursue the matter further and seeks liberty to move a regular bail application under Section 439 of the CRPC within a period of 7 days.

The prayer is allowed.

Accordingly, the bail application is disposed of, as not pressed.

However, this Court seriously observes that the Investigating Authority shall strictly adhere to the said observations made by the Chief Metropolitan Magistrate while granting transit bail, in similar nature of cases and shall also strictly follow the principle laid down in the matter of Arnesh Kumar (supra).

In the meanwhile, this Court expects that no arrest shall be made if the applicant moves an application in the aforesaid manner.

Certified copy today itself.