Case Note & Summary
The petitioner, accused No.5 in Crime No.162/2019 of Madanayakanahalli Police Station, Bengaluru, faced allegations under Sections 143, 147, 148, 341, 114, 302, 109, 120-B, 506 and 149 of the Indian Penal Code, 1860. The case involved serious offences including murder, conspiracy, and unlawful assembly. Out of 16 accused sent for trial, 11 had already been enlarged on regular bail by the trial court. The petitioner, however, was shown as absconding, and a proclamation had been issued against him. He approached the High Court under Section 438 of the Code of Criminal Procedure, 1973, seeking anticipatory bail. During the hearing, the petitioner's counsel brought to the court's notice that the co-accused were on regular bail and sought leave to withdraw the petition, reserving liberty to the petitioner to surrender before the trial court and file a regular bail application. The court recorded the submission and, considering the fact that the co-accused had been granted bail, disposed of the petition. The High Court directed the trial court to consider any bail application filed by the petitioner expeditiously and in accordance with law, taking into consideration the bail orders passed in favor of the other accused. This ensured parity and prevented discriminatory treatment of the absconding accused. The decision balanced the procedural requirement of surrender before seeking regular bail with the principle of parity in bail orders, thereby facilitating the petitioner's access to bail on similar terms as the co-accused.
Headnote
A) Criminal Procedure – Anticipatory Bail – Withdrawal with Liberty – Section 438 of Code of Criminal Procedure, 1973 – Petitioner, shown as absconding accused, sought anticipatory bail. Counsel withdrew petition reserving liberty to surrender before trial court and apply for regular bail. Court allowed withdrawal and disposed petition accordingly. (Paras 2, 3, 4) B) Criminal Procedure – Bail – Parity with Co-accused – Section 439, Code of Criminal Procedure, 1973 – Since 11 co-accused had been enlarged on regular bail, trial court directed to consider petitioner's bail application taking into account bail orders of other accused and dispose expeditiously. (Paras 2, 5)
Issue of Consideration
Whether the anticipatory bail petition can be withdrawn with liberty to surrender before the trial court and apply for regular bail, and what directions should be given to the trial court regarding consideration of bail application of an absconding accused when co-accused are on bail.
Final Decision
Petition disposed of with liberty to petitioner to surrender before trial court and apply for bail; trial court directed to consider application expeditiously taking into account bail orders of co-accused.
Law Points
- Where co-accused have been enlarged on bail
- the trial court shall consider the application of the absconding accused for bail taking into account the bail orders of co-accused
- Anticipatory bail petition can be withdrawn with liberty to surrender and apply for regular bail
