If the name of an accused has been added through Section 319 of Criminal Procedure Code, then that would imply that charge sheet has been filed and/or cognizance of the offence has been taken by the court and the trial or inquiry is in process in court.
The question, whether under S. 438 of Cr.P.C. 1973, the High Court or the Sessions Court has power to grant anticipatory bail to a person after filing of the charge sheet, or after the competent criminal Court has taken cognizance of the case and/or has issued process, viz. warrant for arrest of that person, has attracted the attention of the Courts from time to time and diverse views have been expressed on this issue. However, the judicial opinion is more in favour of the view that anticipatory bail can be granted even at a stage when the charge sheet has already been filed or cognizance of the case has already been taken by the Court.
In Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : AIR 2003 SC 4662, it was held by the Supreme Court that there is no restriction in Section 438 of Cr.P.C. in regard to exercise of the power of granting anticipatory bail in a suitable case either by the Court of Session, High Court or the Supreme Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. The courts, i.e., the Court of Session, High Court or the Supreme Court, have the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.
In the above case, the Supreme Court explained / clarified certain contrary observations in the case of Salauddin Abdulsamad Shaikh, Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042 : (1996) 1 SCC 667.
However, in some other cases, it was held by the Supreme Court that if the protective umbrella of Section 438 Cr.P.C. is extended beyond what was laid down in the above case of Salauddin Abdulsamad Shaikh, the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. [See: (1) Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558; (2) Sunita Devi v. State of Bihar, (2005) 1 SCC 608 : AIR 2005 SC 498.]
[Note: Some of the above contents have been taken from my book: Law of Bail, Bonds, Arrest and Custody (2009 Edition), by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0).]
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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