Bengaluru, April 18, 2024: In a significant legal development underscoring the limitations of seeking anticipatory bail after a previous release, the LX Additional City Civil & Sessions Judge, Bengaluru (CCH-61), rejected the application filed by Chethan K., accused number one in a dacoity preparation case. The court, presided over by Sri Narashimsa M.V., dismissed the petition, ruling that an application under Section 438 of the Criminal Procedure Code (Cr.P.C.) is not maintainable when the accused has already been enlarged on bail in the same case.
The petition was filed by Chethan K., a 26-year-old resident of Agrahara Dasarahalli, Bengaluru, seeking anticipatory bail in connection with Magadi Road Police Station Crime No. 35/2020 (CC No. 6741/2020). The petitioner is accused of offences punishable under Sections 399 (Making preparation to commit dacoity) and 402 (Assembling for purpose of committing dacoity) of the Indian Penal Code (IPC).
The Allegations and The Petitioner’s Grounds
The case’s brief facts, originating from a First Information Report (FIR) dated March 17, 2020, state that at about 8:40 PM, the police received information that accused persons, along with a juvenile (J-1), were holding deadly weapons under the cover of darkness at Ambedkar Stadium, Agrahara Dasarahalli, preparing to commit dacoity on passersby. A raid was conducted, leading to the apprehension of Accused No. 1 to 3 and the juvenile, while Accused No. 4 and 5 managed to escape.
Chethan K., the petitioner, sought anticipatory bail on the grounds that he was innocent, falsely implicated, and was not present at the alleged spot. He also pleaded that he is the sole earning member of his family with aged parents to look after.
Crucially, the petitioner admitted that he had previously been granted bail in the same case (Crl.Misc. No. 2731/2020) and had been regularly appearing before the court. However, he claimed that he could not be present later because he had to take his unwell parents to Kerala for treatment and was subsequently unable to contact his advocate. This absence led the Hon’ble Court to issue a Non-Bailable Warrant (NBW) and proclamation against him, necessitating the current application for anticipatory bail.
He further argued that since the police have already filed the charge sheet, his custodial interrogation is not required, and other accused persons in the case have also been granted bail.
Prosecution’s Objection
The learned Public Prosecutor filed objections, reiterating the facts of the case and arguing that if the petitioner were granted anticipatory bail, he might abscond from the jurisdiction, threaten witnesses, and destroy evidence, thus impeding the administration of justice.
The Court’s Critical Legal Analysis
The Sessions Judge, after considering the submissions and scrutinizing the record, including the charge sheet and the order sheet of the learned Magistrate, noted a fundamental legal hurdle in the petitioner’s plea. The record confirmed that Chethan K. (A1) and Accused No. 2 were initially granted bail in Crl.Misc. No. 2731/2020 and Crl.Misc. No. 2137/2020, respectively, and were released on July 6, 2020. The current situation arose because the petitioner remained absent, leading to the issuance of the NBW on September 16, 2022.
The court based its decision on the well-established principle that a person who is already an accused in a case, has been released on bail, and subsequently faces an NBW due to non-appearance, cannot typically resort to Section 438 of Cr.P.C. for anticipatory bail.
To support this legal finding, the court relied on the judgment of the Hon’ble High Court of Karnataka in the case of Mujahidulla and another Vs State of Karnataka (2022 (3) KCCR 2410). Quoting from the judgment, the Sessions Judge highlighted that once the petitioners have been enlarged on bail, “The petition filed before this court under section 438 of Cr.P.C. is not maintainable.” The High Court had earlier directed such petitioners to approach the Trial Court by filing the necessary application for recalling the warrant.
Conclusion: Anticipatory Bail Not Maintainable
The Sessions Judge concluded that the ratio laid down in the cited case was “squarely applicable to the facts of this case.” Consequently, the court answered the point for consideration—whether the anticipatory bail application deserves to be allowed—in the Negative.
The final order pronounced by the court was:
“Bail application filed under Section 438 of Cr.P.C. by Petitioner/ accused No.1 is hereby rejected as not maintainable. Liberty is reserved to petitioner/ accused No.1 to eke out his remedies in accordance with law.”
This ruling directs the accused to seek remedy from the Trial Court (CC No. 6741/2020) by following the due process, which typically involves surrendering before the Magistrate and applying for a recall of the warrant and regular bail, rather than approaching the Sessions Court for anticipatory relief.