The Court of the LX Additional City Civil & Sessions Judge, Bengaluru City (CCH-61), presided over by Sri Narashimsa M.V., B.Com., LL.B., delivered a judicial order on April 2, 2024, dismissing an anticipatory bail application filed under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The ruling in Criminal Miscellaneous Petition No. 2960/2024 pertained to Sri Asif Khan, who sought pre-arrest bail protection in connection with Crime No. 6/2013 (subsequently numbered as C.C. No. 3060/2014) registered by the Kalasipalya Police Station, Bengaluru, concerning alleged offences punishable under Sections 406 (criminal breach of trust) and 427 (mischief causing damage) of the Indian Penal Code (IPC).

Factual Matrix and Procedural History

The criminal proceedings originated from a first information report lodged on January 5, 2013, based on a complaint filed by a vehicle owner:

• Allegation of Breach of Trust: The complainant stated that he operated a goods vehicle on hire basis (Canter bearing Registration No. KA-16-A-2846) which he had purchased from one Inayath of Maruthi Nagar. He entrusted the vehicle to the accused, Asif Khan, to carry out goods transportation on hire. After operating for two months, the accused allegedly withheld the vehicle for over a year without paying dues, vacated his residence, and concealed the vehicle. Consequently, a case was registered for criminal breach of trust.
• Prior Arrest and Regular Bail: Following the investigation, the accused was arrested on March 26, 2013, and produced before the jurisdictional magistrate, where he was remanded to judicial custody. He subsequently filed a regular bail application under Section 436/437 Cr.P.C., which was allowed by the 1st ACMM, Bengaluru, on March 28, 2013, upon furnishing a cash surety of ₹3,000/- and complying with prescribed conditions. A charge sheet was filed on January 3, 2013.
• Issuance of Non-Bailable Warrants (NBW): While the case proceeded to trial under C.C. No. 3060/2014, the accused failed to appear before the magistrate on October 18, 2016. Consequently, non-bailable warrants were issued, his bail and surety bonds were cancelled on June 29, 2018, and his cash surety was forfeited to the state on October 4, 2019, leading the petitioner to approach the Sessions Court for anticipatory bail.

Details of the Petitioner

• Name: Sri Asif Khan (Petitioner / Accused)
• Father’s Name: Late Rasheed Khan
• Age: About 51 years
• Residential Address: Banavasandara Village, Chicknayaknahalli Post, Turuvekere Taluk, Tumkur District – 572212.
• Legal Representation: Sri Mohammed Rafi, Advocate
• State Representation: Learned Public Prosecutor

Submissions Advanced by the Parties

On Behalf of the Petitioner

1. Innocence and False Implication: The petitioner maintained that he was entirely innocent, had no nexus with the alleged crime, and was falsely implicated. He stated that he had clean antecedents, was a permanent resident supporting his aged mother as the sole breadwinner, and apprehended imminent arrest, harassment, and illegal detention by the police.
2. Invocation of Anticipatory Bail: Counsel argued that the petitioner apprehended execution of the warrants and sought pre-arrest protection under Section 438 Cr.P.C.

On Behalf of the Respondent (State)

1. Maintainability Objection: The Public Prosecutor strongly opposed the application, pointing out that the petitioner had already been arrested and enlarged on regular bail during the initial crime and charge-sheet stage, making a fresh petition for anticipatory bail legally untenable upon the issuance of non-bailable warrants for non-appearance.

Judicial Findings and Legal Reasoning

Judge Narashimsa M.V. evaluated the maintainability of the petition and the procedural history of the case:

1. Prior Grant of Regular Bail: The court observed from the case records and charge sheet that the petitioner had already been granted regular bail by the magistrate on March 28, 2013, and had participated in the initial proceedings before absconding, resulting in the issuance of non-bailable warrants.
2. Binding Legal Precedent: Relying on the ruling of the Hon’ble High Court of Karnataka in Mujahidulla and Another v. State of Karnataka [2022 (3) KCCR 2410], the court reiterated that an application under Section 438 Cr.P.C. for anticipatory bail is not maintainable once an accused has already been enlarged on bail in the same matter. The proper legal remedy upon the issuance of a warrant due to non-appearance is to surrender or appear before the trial court and file an application to recall the warrant.
3. Inadmissibility of Pre-Arrest Protection Post-Bail: Holding that a person who has already availed regular bail cannot invoke anticipatory bail provisions merely because coercive steps (NBW) were issued due to subsequent default, the court ruled the petition legally incompetent.

Final Court Order and Disposition

Answering the point for consideration in the negative, the Sessions Court passed the following order:

• The anticipatory bail application filed under Section 438 of Cr.P.C. by the petitioner/accused Asif Khan in Crime No. 6/2013 (C.C. No. 3060/2014) is hereby REJECTED.
• Liberty is reserved to the petitioner/accused to pursue appropriate legal remedies in accordance with law (such as appearing before the trial court and seeking to recall the warrant).