Anticipatory bail application pending in higher court and we got regular bail

[Prasanna Kumar]

Hello sir , greetings
“when Anticipatory bail application is pending ,Can Accused can get regular bail u/s 437 CrPC b/f trail court ?

Actually anticipatory bail application submitted in the higher court and subsequently after few days applied to withdraw the anticipatory bail but that day judge was not on bench so given to sirsdar..

Subsequently moved and surrendered the regular bail in lower court and filed a memo stating we have applied to withdrawn the anticipatory application and lower court judge granted regular bail stating anticipatory bail application withdrawn (Judge misundstood our statement and written as application withdrawn with judge consent ).

Judge is now furious on us stating we lied and misinterpreted and he warned of cancelling the regular bail !!

Question : Can a lower court judge has powers to give regular bail under crpc 437 ? Subject to the status of Anticipatory bail application at higher court (higher court judge was not present that day but now he says rejected to withdraw application)

Awaiting your guidelines to safeguard the innocent …we are with falsely made FIR as counter case . ..

[Dr. Ashok Dhamija]

Yes. The lower court has the power to grant bail under Section 437 Cr.P.C. if the person concerned surrenders or brought before him in custody, even if his application for anticipatory bail was pending in a higher court. There is no legal bar on this.

Seeking anticipatory bail is a sort of privilege that in the event of arrest, the applicant would be released on bail. When that person, on his own, surrenders before lower court without waiting for the decision in the anticipatory bail application, he is also surrendering or giving up his right to seek anticipatory bail.

In fact, the moment the person concerned surrenders before a court, his anticipatory bail application automatically becomes infructuous and meaningless. Anticipatory bail is relevant only till a person is apprehending arrest but has not actually been arrested. Anticipatory bail, when granted, implies that the person concerned will be released in the event of his arrest. But, when that person has already surrendered, then there is no question of his being arrested again, and also therefore, then there is no relevance of granting him anticipatory after his surrender. Therefore, anticipatory bail application becomes infructuous the moment the person concerned is arrested or he surrenders before the court on his own. So, it can be said that his application for anticipatory bail would not be processed or decided after his surrender since it has become meaningless.

In view of these reasons, I don’t think there is any irregularity if bail is granted by the lower court to him on his having surrendered before such court, at a time when his anticipatory bail application was pending consideration before a higher court, since such application for anticipatory bail became infructuous. In any case, you have mentioned that you had already moved an application to withdraw the anticipatory bail application from the higher court before surrendering before the lower court.

     

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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.

[Prasanna Kumar]

Hello sir ..

Thank you so much for your valuable suggestions and a detailed explanation for our query .. it will be well and good if you can guide us in finding any supportive material (judgements based on this or any reference sections or any reference sections in support of the views expressed above …

Awaiting your guidelines …

Thank you so much

[Prasanna Kumar]

Hello sir ..

Thank you so much for your valuable suggestions and a detailed explanation for our query .. it will be well and good if you can guide us in finding any supportive material (judgements based on this or any reference sections or any reference sections in support of the views expressed above …in order to convince honorable Judge in a polite submission .

Awaiting your guidelines …

Thank you so much

[Dr. Ashok Dhamija]

Section 438 Cr.P.C. itself makes it very clear. It is clear from the first principles, i.e., from the language of the section itself, since “anticipatory” bail is only in “anticipation” of arrest and not after that (though the words “anticipatory bail” are not used in this section, the section is understood as such). Language of section makes it clear that Section 438 can be used while apprehending arrest or anticipating arrest, but not after that.     

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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.

[Prasanna Kumar]

Hi sir …its matter of urgency …still the honerable judge cancelled the regular bail and ordered to take them into custody …even after we convinced by ur suggestions anticipatory bail application infructous once regular bail cancelled.

But

Sir we need any judgements based on this facts so as to better convince honorable court …we deliberately in need of your support to safecaurd justice for innocents …we are with countercase parties who were poor and one grandmother also will go in jail…

[Dr. Ashok Dhamija]

Once the court has already cancelled the regular bail, the only option left before you is to approach the higher court against such cancellation.

Please note that in addition to what I had mentioned earlier, the considerations for cancellation of bail are entirely different from the considerations for grant of bail. Normally, the bail can be cancelled when one or more of the bail conditions are violated by the person who had been granted bail, and/or if the person has absconded or is influencing the witnesses or destroying or concealing the evidence, etc.

The judgment requested for by you:

The provisions of S. 438 Cr.P.C. cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S. 437 or Section 439 of Cr.P.C., if he wants to be released on bail in respect of the offence or offences for which he is arrested. [Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1648 : 1980 Cri LJ 1125 : (1980) 2 SCC 565 : 1980 SCC (Cri) 465. See also, Adri Dharan Das v. State of W.B., (2005) 4 SCC 303 at p. 312 : AIR 2005 SC 1057 : 2005 Cri LJ 1706 : 2005 SCC (Cri) 933; Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632; A. Kamalakar Rao v. State of A.P., 1983 Cri LJ 872 at p. 874 (AP) : (1983) 1 APLJ 97.]

[Note: Above case law is reproduced from my book on Law of Bail, Bonds, Arrests and Custody.]

     

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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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