Case Note & Summary
The applicant, the original complainant in a private complaint alleging offences under Sections 467, 468, 420 read with 34 of the Indian Penal Code, challenged the grant of regular bail to the accused (respondent nos. 3 to 7) by the Sessions Court. The accused had earlier been granted anticipatory bail. After the police filed chargesheet following a direction under Section 156(3) CrPC, the accused applied for regular bail before the Magistrate, who rejected it on the ground that the offence under Section 467 IPC attracts life imprisonment and the Magistrate lacked power to grant bail. Subsequently, the accused moved a bail application under Section 439 CrPC before the Sessions Court, which granted bail by order dated 16.05.2009. The applicant filed the present application to quash that order, contending that since the accused were already on anticipatory bail, they were not in custody and thus could not be granted regular bail under Section 439(1)(a) CrPC. He clarified this was not a cancellation of bail on its merits. The State opposed the application. The Court analyzed the scheme of bail under the CrPC. It held that anticipatory bail under Section 438 is a limited protection against unnecessary harassment and is not a substitute for regular bail. Once the chargesheet is filed, the accused must apply for regular bail under Section 437 or 439. When an accused makes such application, he is deemed to have surrendered and is in the custody of the court, thus satisfying the requirement of Section 439(1)(a). The fact that he was on anticipatory bail does not deprive the Sessions Court of jurisdiction to grant regular bail. Accordingly, the application was dismissed, upholding the bail order.
Headnote
A) Criminal Procedure - Bail - Anticipatory Bail under Section 438 CrPC - Code of Criminal Procedure, 1973, Section 438 - Anticipatory bail serves limited purpose of protecting against harassment; it is not a substitute for regular bail and is generally limited till filing of chargesheet; after chargesheet, accused must apply for regular bail. (Paras 4-6) B) Criminal Procedure - Bail - Regular Bail under Section 439 CrPC - Code of Criminal Procedure, 1973, Section 439 - Accused who was on anticipatory bail can apply for regular bail; upon filing such application, he is deemed to have surrendered to court and is in custody, thus satisfying Section 439(1)(a); Sessions Court has jurisdiction to entertain and grant bail. (Paras 5-7) C) Practice and Procedure - Bail - Grant of Regular Bail after Anticipatory Bail - Code of Criminal Procedure, 1973, Sections 437, 438, 439 - The fact that accused is already on anticipatory bail does not oust the jurisdiction of Sessions Court to consider and grant regular bail under Section 439, as anticipatory bail is only interim protection; fresh bonds must be furnished before the court on grant of regular bail. (Paras 7-8)
Issue of Consideration
Whether the Sessions Court could grant bail under Section 439 CrPC to an accused who was already on anticipatory bail, given the requirement that the accused be 'in custody'?
Final Decision
Application dismissed. The Court held that Sessions Court has jurisdiction to grant regular bail under Section 439 even if the accused is on anticipatory bail, as the accused is deemed to be in custody of the court upon surrender.
Law Points
- anticipatory bail is not substitute for regular bail
- on filing chargesheet accused must seek regular bail
- on moving application accused is deemed in court custody
- Sessions Court can grant bail under Section 439 even if accused was on anticipatory bail
