The Allahabad High Court has dismissed an anticipatory bail application saying that if an accused has already been arrested in police or judicial custody in another case and is lodged in jail, then his anticipatory bail application in the second registered case is not maintainable.
A Single Bench of Justice Samit Gopal passed this order while hearing a Criminal Misc anticipatory bail application filed by Rajesh Kumar Sharma.
The anticipatory bail application under Section 438 CrPC has been filed by the applicant Rajesh Kumar Sharma, seeking anticipatory bail, in the event of arrest in Special Case registered at Police Station CBI, New Delhi, under Sections 120B r/w 420, 467, 468, 471 IPC and Section 13(2) r/w 13(1) (d) Prevention of Corruption Act, 1988.
Counsel for the CBI raises a preliminary objection regarding maintainability of the anticipatory bail application under Section 438 CrPC by arguing that on the own showing of the applicant as per supplementary affidavit dated 11.10.2022, it is stated that the applicant has been arrested in September 2022 in Case under Sections 384, 420, 468, 471, 509 and 120B IPC, Police Station-Cyber Crime, Chandigarh, and as such the anticipatory bail application is not maintainable in view of the judgement rendered by the Rajasthan High Court in the case of Sunil Kallani vs State of Rajasthan decided on 25.10.2021, wherein while dealing with the issue as to whether an application of anticipatory bail under Section 438 CrPC is maintainable if the said accused is in jail in connection with another criminal case for the similar offences or for different offences, it has been held that the same would not be maintainable.
In reply, Counsel for the applicant argued that although the applicant is in jail in another case in Chandigarh, the same would not bar grant of anticipatory bail to him as he apprehends that he would be taken into custody in the case also.
The facts of the case are that a First Information Report was lodged on 29.6.2019 by Ms Beena Vaheed, Dy General Manager & Zonal Head, Corporation Bank, Delhi (North) as Case Police Station CBI/EO-I, New Delhi, under Sections 120B r/w 420, 467, 468, 471 IPC and substantive offences thereof, against nine persons.
The case related to fraud committed by M/s Naftogaz India Pvt Ltd in Noida-Mid Corporate Branch of the bank.
The matter was investigated and a charge sheet dated 31.12.2021 was filed against 16 persons.
On the said charge sheet cognizance was taken by the Special Judge (Prevention of Corruption) CBI, Ghaziabad order 17.2.2022 against the accused persons named therein and they were summoned to face trial. In so far as the accused no 15/Ramesha JS in the charge sheet is concerned, sanction for prosecution under Section 19 (1) (c) of Prevention of Corruption Act, 1988, was taken since he was a public servant and he was also summoned to face trial.
The Court observed that,
From perusal of the supplementary affidavit it is clear that the applicant has been arrested in a case in Chandigarh in September 2022 and is in jail.
The issue as to whether an application for anticipatory bail under Section 438 CrPC of an accused who has already been arrested, is maintainable or not came up in the case of Sunil Kallani (supra).
Analysing Section 46 CrPC read with Section 438 of CrPC, the Court held, “…the essential part of arrest is placing the corpus, body of the person in custody of the police authorities whether of a police station or before him or in a concerned jail. The natural corollary is therefore that a person who is already in custody cannot have reasons to believe that he shall be arrested as he stands already arrested. In view thereof, the precondition of bail application to be moved under Section 438 CrPC i.e “reasons to believe that he may be arrested” do not survive since a person is already arrested in another case and is in custody whether before the police or in jail.”
“The Court in view of the law laid down in the case of Sunil Kallani (supra) upholds the preliminary objection taken by the counsels for the CBI and holds that since the applicant is in custody in connection with another case, the anticipatory bail application under Section 438 CrPC would not lie and would not be maintainable”, the Court further observed while dismissing the anticipatory bail application.