RETNAMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) Can anticipatory bail be granted in a case in which summons is issued to the accused

(2.) According to prosecution, 750 ml of arrack were found in the kitchen of the house of petitioner on 21/12/2002 (more than 6 years back) at about 5.30 p.m and a case was registered against petitioner under S.55(a) of the Abkari Act. Charge sheet was filed on 12/03/2007 and summons was issued to petitioner. Hence, petitioner has filed this petition for anticipatory bail, under S.438 of the Code of Criminal Procedure ('CrPC', for short).

(3.) Learned counsel for petitioner submitted that summons was issued to petitioner from the Magistrate Court and hence, this petition is filed. It is needless to say that in a case where summons is issued by the Court, there can be no apprehension of any arrest by police. Going by the language of S.438 CrPC, only if a person has reason to believe that he will be arrested, direction under the said section can be issued. The provision under S.438 CrPC can be invoked only if a person has reason to believe that he will be arrested on accusation of having committed a non bailable offence. This requirement is lacking in this case. Hence, anticipatory bail cannot be granted to petitioner under S.438 CrPC.