This article is written by Ishita Thapliyal, a student of Law College, Dehradun.
Bail is given to an accused person whose trial is still pending and he needs to appear in the court whenever required. Bail can be given in exchange of a sum of money or by handing over any property to grant the freedom of the accused person. The provisions regarding the bail had been described in Criminal Procedure Code, 1973 from section 436 to 450.
Under section 438 of Criminal Procedure Code, 1973 (CrPC) if a person is likely to be arrested can apply for anticipatory bail for the crime he did not committed but it should be before he is arrested to appear before court, to apply for the anticipatory bail application and prove his innocence.
Successive anticipatory bail
Every citizen has right to file anticipatory bail as many times as they pleased if they believe that sooner or later they can be arrested for the crime they didn’t commit. But there are certain limitations given by the court. First, successive anticipatory bail can be filed only if there is a rejection in the first application, second if there is a change in circumstances and facts in the same case respective to the first application like filing a charge sheet, favourable evidence by investigation department or recorded evidence against the complainant can lead the person to file for successive anticipatory. However, “these successive anticipatory bail is to be placed before the same judge who declined it in the first place.” On this statement, the Supreme court of India passed a judgement mentioned below.
In the case of Jagmohan Bahl and Another v. State (NCT of Delhi) and Another, appellant filed an appeal for anticipatory bail as the second respondent filled a FIR against him claiming that he cheated, misappropriated the money and criminal breach of trust. Firstly he offered respondent the property and after the respondent paid advance, the rest amount to be paid during registration. Secondly, he delayed the registration date moreover, he came to an agreement with second respondent for the same property shown to the first respondent. Under Section 438 CrPC he grants anticipatory bail which was denied by Sixth Additional Session Judge.
After the expiry of three weeks appellant filled second application to Fourth Additional Session Judge granted bail to the appellant. On this the High Court comes to certain decisions that the conduct of the agreement by appellant needs custodial interrogation and the fact that rejection of bail by Sixth Additional Session Judge and applied for second anticipatory bail by Fourth Additional Sessions Judge when the judge who dealt the matter before had not transferred nor was on leave for considerable length of time and was available in the court is the abuse of the process of the court. On this, the Supreme Court says that if successive bail application on the same subject take place with different judges until the appellant is not satisfied with the result it leads to forum shopping.
Therefore, judicial discipline requires that such matters to be executed by the same judge who rejected the bail at the first place to avoid the misuse of courts time and same judge can dispose the matter quickly as he was aware of the facts and it will also result in consistency. The Supreme Court held that when Sixth Additional Session Judge declined the application then Fourth Additional Session Judge should had informed the appellant. However it is the duty of prosecution to bring it to the concerned of the judge that previously the bail had been denied by different judge. The Supreme Court be of the same opinion of the High Court cancelled the bail in this case.
In the case of Bebi Devi and Ors v. State Of Bihar, informant filed a FIR against the husband of petitioner No 1 claiming that when he was repairing the roof of the petitioner’s neighbour being the Gotias (having same neighbourhood) they came into an argument to which petitioner’s husband came forward with the riffle and shoot towards the stones. Evidently, no one was injured during the incident. The anticipatory bail failed by the petitioner was rejected by learned sessions court. Under Section 504 police submitted the chargesheet for the moment but the Chief Judicial Magistrate declined. When petitioner went before the Sessions Judge for the application it was rejected for the reason that the second anticipatory bail is not maintainable. After explaining that both the applications were filed at different times and under different circumstances. Thus, they appeal for second anticipatory bail as nothing in law prevents to file the same. Under Section 438(2) of the Criminal Procedure Code, the court held that the petitioner shall be released on a bail.
In the case An Application For Anticipatory… vs Unknown petitioner earlier appeal for anticipatory bail which was rejected but now when the chargesheet is submitted and investigation took place under the offence of Sections 341/326/307/379/34 of Indian Penal Code and proved that the petitioner did not commit any offence under section 307 of Indian Penal Code and the injured person was also not injured badly therefore, Section 326, Indian penal code was also not violated. Thus, petitioner’s lawyer demand for second anticipatory bail as the change of circumstances took place. The opposition Learned Public Prosecutor was against the explanation given by petitioner’s lawyer because according to the chargesheet Section 308, IPC was mentioned in there not Section 307, IPC and the injury report which was presented at the time of rejection of first anticipatory bail under section 438 Criminal Procedure Code and the material which is present in CD shall not be considered again and therefore according to him, no change in circumstances took place.
After hearing both the parties court held that as investigation for the offence under section 307, IPC is going on but according to the chargesheet Section 341/326/308/379/34, IPC has been submitted so change of circumstances took place. Therefore second anticipatory bail is well maintainable. After examining CD for injury report, the injured person was released from the hospital within 8 days. Physical assault by some person was mentioned although, custodial interrogation of petitioner is not necessary according to the chargesheet. Hence, the court had no reason to decline the second anticipatory bail.
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