Virendra Kumar Chaturvedi vs State of Chhattisgarh

Sanjay K. Agrawal, J.

Invoking jurisdiction of this court under Section 438 of Cr.P.C., the applicant herein has filed this application for grant of anticipatory bail as he

is apprehending his arrest in connection with Crime No. 113/2014 registered at Police Station, Urla, District Raipur, for the offence punishable

under Section 363 of IPC.

The aforesaid bail application has been admitted for final hearing on 09.09.2014.

Appearing for the State, Ms. Madhunisha singh, at the outset, would submit that offence registered against the applicant is only under Section

363 of IPC which is bailable offence, and therefore, provisions of Section 438 of Cr.P.C. would not be attracted and application for anticipatory

bail is not maintainable in law.

Replying the above submission, Shri Hemant Kumar Gupta, learned counsel appearing for the applicant would submit that though the offence

under Section 363 IPC is bailable one, but the Sessions Judge, while rejecting the bail application has made some observation with regard to

applicability of Section 366 of IPC, and therefore, bail application would be maintainable.

Admittedly and undisputedly, First Schedule appended to the Code of Criminal Procedure provides for classification of the offence.

Classification for offence under Section 363 of IPC reads as under:

Section 438 of Cr.P.C. provides as under:

Direction for grant of bail to person apprehending arrest.--(1) Where any person has reason to believe that he may be arrested on an

accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section

that in the event of such arrest, he shall be released on bail; and that court, may after taking into consideration, inter alia, the following factors,

namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect

of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

A plain and bare perusal of Section 438 of Cr.P.C. would show that Section 438 of Cr.P.C. is applicable only where offence is non-bailable

offence. Admittedly and undisputedly, offence registered against the present applicant is under Section 363 of IPC, which is a bailable one as

apparent from the schedule appended with Cr.P.C., and therefore, Section 438 of Cr.P.C. would not be applicable in the bailable offence.

In R.K. Krishna Kumar Vs. State of Assam and Others, their Lordships of Supreme Court has clearly held that in bailable offence, the

provisions of Section 438 of Cr.P.C. is not attracted, and held as under:

..... Resultantly, the question of granting anticipatory bail to the appellants under Section 438 of the Code of Criminal Procedure cannot and does

not arise for an offence under Section 10 of the Act is bailable; and a direction under the former can be issued only in respect of a non-bailable

offence....

Thereafter, in Joginder @ Jindi Vs. State of Haryana, , the afore-said law laid down in R.K. Krishna''s case has been re-iterated by the

Supreme Court, and held as under:

.....Section 438 Cr.P.C. in terms relates to non- bailable offences. Therefore, a petition under Section 438 Cr.P.C. in relation to bailable offences

is misconceived, even if it is accepted that alleged offences are bailable....

In view of above-stated crystallized legal position of law, the application for grant of anticipatory bail filed under Section 438 of Cr.P.C. for the

offence registered under Section 363 of IPC is dismissed as not maintainable in law.