DATE OF JUDGEMENT:
21/01/2022
BENCH:
JUSTICE Mr. H.P. SANDESH
PARTIES:
PETITIONER: Mr. RAMESH
RESPONDENT: STATE THROUGH D.Y. RFO
SUBJECT
The Karnataka High Court on 21st January 2022 passed a judgement stating that if an accused has appeared in the court premises once either personally or through that person’s lawyer then the accused will not be allowed to seek an anticipatory bail under section 438 of the CrPC.
OVERVIEW
- According to the prosecutor, the Gauribidanur Area Deputy Range Forest Officer discovered three monitor lizards and three grey francolins in the plaintiff's home.
- He immediately lodged a petition with the appropriate Magistrate court under Section 55(b) along with Section 51 of the Wild Life (Protection) Act, 1972.
- The Trial Court took cognizance of the crime, filed a complaint, and served notices on the defendant, who attended on October 5, 2020, with his attorney, and requested an exclusion by making an application per Section 205 of the Cr.P.C., which had been granted by the Trial Court.
- The defendant, nevertheless, stayed missing after that, and NBW was filed upon him. He subsequently applied to the session court for anticipatory bail, which was denied.
- After that, he went to the High Court where the plaintiff's lawyer, Advocate Dhiraj A.K, argued that there was no prima facie case against him or that the investigating officer's investigation was not in compliance with Section 50(8) of the Wild Life (Protection) Act, 1972.
- It was argued that the complainant reportedly examined the plaintiff's residence irrespective of not having a search warrant and executed a confiscation under Mahazar depending on certain facts of the case, and due to this the confiscation conducted was itself deemed to be a suspect.
- It was argued by the Prosecution side that the plea was not maintainable because, after the accused/petitioner had come before the Trial Court via his lawyer, he should have applied to the Trial Court for a review of the judgment rather than invoking Section 438 of the Cr.PC.
LEGAL PROVISION
Section 438 of the C.r.P.C, SR Nagaraj v State of Karnataka, K Somashekhar v State of Karnataka, Sections 205 and 317 of the C.r.P.c, Section 55(b) and Section 51 of the Wild Life (Protection) Act, 1972.
ISSUES
- • Whether anticipatory bail is provided to the accused if he/she makes an appearance in the court once either personally or through a counsel thus making the petition maintainable?
JUDGEMENT ANALYSIS
- The High court cited the Karnataka High Court's decisions in the cases of S.R. Nagaraj v. State of Karnataka and K. Somasekhar v. State of Karnataka and stated that in all these judgments, it was decided that once the accused came to the Court and submitted a notice for intentional absenteeism which was granted by the Court on behalf of his disappearance on a subsequent date, the alternative of anticipatory bail under Section 438 Cr.P.C. was not accessible to him.
- The court noted that the plaintiff had attended the session at the Trial Court through an attorney and had already submitted a request for an exemption for the day under Section 205 of the Cr.P.C., rather than Section 317 of the Cr.P.C.
- The court considering this then stated that once an accused has entered the court and acquired an anticipatory bail, he cannot do so the second time under section 438 of the CrPc.
- The court then ruled that the petition was thus not maintainable under section 438 of CrPC as person once allowed the anticipatory bail after appearing in the trial court cannot be provided the same the second time as an appearance in the court will always be recorded.
CONCLUSION
As a result, on 21st January 2022, Justice H P Sandesh denied the petitioner’s (Ramesh) anticipatory bail motion and allowed him to attend the Trial Court by submitting the appropriate application to review and re-evaluate the court order against him.
Click here to download the original copy of the judgement
