Bengaluru Court Rejects Anticipatory Bail Plea in Apartment Dispute Case, Citing Non-Maintainability as Offences Are Bailable

CCH 70 Judge Rules Petitioner Should Approach Jurisdictional Magistrate for Bailable Offences Under IPC

In a notable order dated September 8, 2023, the LXIX Additional City Civil and Sessions Judge (CCH 70), Bengaluru, presided over by Sri Balagopalakrishna (C/c), dismissed an application for anticipatory bail. The petition, filed under Section 438 of the Code of Criminal Procedure (Cr.P.C.) by Archana Shiv Shakthi, was rejected on the critical grounds of non-maintainability, as the court determined that all the offences alleged against the petitioner were bailable in nature.

The case, Crl.Misc. No.8520/2023, highlights a common procedural misunderstanding regarding the application of anticipatory bail, which is strictly reserved for cases involving the apprehension of arrest in non-bailable offences.

Case Background and Allegations

The petitioner, Archana Shiv Shakthi, a resident of Ramanashree California, Yelahanka New Town, Bengaluru, sought protection from arrest by the Yelahanka New Town Police Station in connection with Crime No. 156/2023. The police had registered the case based on a complaint filed by one Vijaya Simha Reddy, alleging that the petitioner had committed offences punishable under Sections 506 (Criminal Intimidation), 341 (Wrongful Restraint), 504 (Intentional Insult with intent to provoke breach of the peace), 323 (Voluntarily Causing Hurt), and 342 (Wrongful Confinement) of the Indian Penal Code (IPC).

The petition, argued by Sri S.V. Vadavadagi, Advocate, asserted the petitioner’s innocence, stating that she had not committed any of the alleged offences. The petitioner claimed a reasonable apprehension of arrest due to the “hectic efforts” of the respondent police and submitted that she was a permanent resident of the address mentioned in the cause title, hailed from a respectable family, and had no bad antecedents or pending criminal cases. Furthermore, she expressed her readiness to abide by any conditions imposed by the court and offered to furnish surety for her enlargement on bail.

Prosecution’s Opposition

The learned Public Prosecutor filed detailed objections opposing the grant of anticipatory bail. The prosecution contended that the offences were grave in nature and that the petitioner had been absconding since the case was registered. Arguing that the investigation was still in progress, the Public Prosecutor raised concerns that if the petitioner was enlarged on bail, she might commit similar offences in the future, and it would be difficult to secure her presence for the ongoing investigation. The prosecution therefore prayed for the outright rejection of the petition.

The Court’s Determination of Maintainability

After hearing the arguments from both the learned Public Prosecutor and the counsel for the petitioner, and reviewing the FIR, complaint, and other documents, the court proceeded to address the crucial point of consideration: “Whether the petitioner has made out grounds to grant anticipatory bail u/sec. 438 of Cr.P.C.?”

The court’s analysis focused sharply on the nature of the offences cited in the First Information Report (FIR). The court, in its reasoning for finding Point No. 1 in the negative, meticulously examined each of the IPC sections applied in the case:

Section 506 (Criminal Intimidation): Punishable with imprisonment for up to two years, or with fine, or both. (A bailable offence)
Section 341 (Wrongful Restraint): Punishable with simple imprisonment for up to one month, or fine up to five hundred rupees, or both. (A bailable offence)
Section 504 (Intentional Insult to provoke breach of peace): Punishable with imprisonment for up to two years, or fine, or both. (A bailable offence)
Section 323 (Voluntarily Causing Hurt): Punishable with imprisonment for up to one year, or fine up to one thousand rupees, or both. (A bailable offence)
Section 342 (Wrongful Confinement): Punishable with imprisonment for up to one year, or fine up to one thousand rupees, or both. (A bailable offence)

The court’s finding was clear: the offences alleged against the accused—wrongful confinement, voluntarily causing hurt to neighbours, and wrongfully restraining the way of another person—were all bailable offences.

The core principle of Section 438 of the Cr.P.C. is to provide protection against arrest for an individual who is apprehending arrest on an accusation of having committed a non-bailable offence. Given that all charges against the petitioner were bailable, the legal provision for anticipatory bail was not applicable.

The court stated unequivocally that “Since the alleged offences are bailable offences the petition itself is not maintainable and same is liable to be dismissed as not maintainable.” The appropriate legal course for a person accused of bailable offences is to approach the Jurisdictional Magistrate for regular bail, which is granted as a matter of right.

Final Judicial Order

Based on the determination that the petition was procedurally flawed because the offences were bailable, the court proceeded to pass the final order. The court formally rejected the bail petition filed under Section 438 of Cr.P.C. as not maintainable.

The order underscores the fundamental distinction in Indian criminal procedure between bailable and non-bailable offences. For bailable offences, the accused has a statutory right to bail, and the police or the magistrate can grant it without the need for an anticipatory order from a Sessions or High Court. The rejection of this petition serves as a procedural clarification, directing the petitioner to the correct legal forum to secure their release, should they be arrested for the stated charges.