2023 (8) TMI 1441 - UTTARAKHAND HIGH COURT

Maintainability of an application for anticipatory bail after charge sheet has been filed in the Court - question placed for consideration by this Larger Bench.

As per Manoj Kumar Tiwari, J. - An application seeking anticipatory bail would be maintainable even after filing of charge sheet in the Court.

As per Ravindra Maithani, J - An application for anticipatory bail is not maintainable after the chargesheet has been filed in the court.

As per VIPIN SANGHI, C.J.

HELD THAT:- The view taken by Manoj Kumar Tiwari, J. that an application seeking anticipatory bail would be maintainable even after the filing of the charge- sheet in the court, agreed upon - Right to life and personal liberty is a valuable right available to a person, guaranteed under Article 21 of the Constitution of India, and it is one of the most precious and cherished rights. The said right to life and personal liberty cannot be curtained, or deprived, except without following the due process of law.

Section 438 of the Code of Criminal Procedure, which deals with what is popularly known as "anticipatory bail", seeks to prevent the apprehended infraction of this right to life and personal liberty of a person, by providing that where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court, or to the Court of Session, for a direction under the said provision and the Court may, if it thinks fit, direct that in the event of such an arrest, he shall be released on bail.

In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], the Supreme Court considered the issue - whether the operation of an order passed under Section 438(1) of the Code should be limited in point of time. While recognizing the power of the Court to limit the operation of such an order to a shorter period, for reasons to be recorded, the Supreme Court observed that the normal rule should be not to limit the operation of the order in relation to a period of time.

The Law Commission in its 41st report, while recommending pre-arrest bail, observed that - their seems to be no justification to require the accused to first submit to custody, remain in prison for some days, and then apply for bail.

The view of Manoj Kumar Tiwari, J. agreed upon that the legislation has not imposed any restriction as regards the stage upto which an application for anticipatory bail can be entertained.

That being the position, an interpretation of Section 438 Cr.P.C. which curtails the remedy available to an accused - to preserve his right to life and personal liberty, should be eschewed.