RAJ NARAYAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The order dated 27.5.2004 is an order of the court of Sessions Judge, Kaimur at Bhabua in bail petition no. 119A of 2004. The aforesaid order goes to show that the application for anticipatory bail of the petitioner has been rejected as not maintainable as the summons had been issued by the trial court under Section 319 of the Code of Criminal Procedure. Section 319 of the Code of Criminal Procedure reads as follows:-

(2.) From bare perusal of the same it would transpire that during the course of trial or inquiry or otherwise if the court is satisfied that any other person who is not facing trial is required to face the trial with the other accused persons, it can summon such a person to face the trial or direct for his arrest for the said purpose, that will mean that it is this order which has led the apprehension of the petitioner of his arrest in the aforesaid case. Section 438 of the Code of Criminal Procedure does not bar any such person for availing the benefit under the aforesaid provision for his release on bail in anticipation of his arrest. The aforesaid Section is quoted hereinbelow; 438. Direction for grant of bail to person apprehending arrest.-(1) When any person has reason to believe that he may be arrested on an accusation of having committed non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(3.) From bare reading of the same it will be clear that there is no bar under the aforesaid Section i.e. 438 of the Code of Criminal Procedure and as for the first time the petitioner now apprehends his arrest as he has reasons to believe that he may be arrested in view of the summons issued by the trial court, where he is required to face the trial and in which case he may be remanded to judicial custody, he is entitled to move the court under the provision of Section 438 of the Code of Criminal Procedure. As such, the rejection of anticipatory bail application on the ground that the same is not maintainable is bad.