This Case Commentary is written by Sweety Kumari, a Fifth-Year law student of ICFAI Law School, ICFAI University, Dehradun

Case Details:-

Court- High Court of Judicature at Allahabad, Lucknow Bench

Equivalent citations- Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No. - 5334 of 2021

Bench- Rajeev Singh

Decided on- 11.06.2021

Parties-

Applicant- Mohammad Azam Khan

Respondent- State of U.P. & Another

ABSTRACT-

A warrant is a writ that is issued by a competent officer of the court, like a judge or a magistrate that leads to a violation of individual rights which is not an illegal act.

A B-Warrant is issued for further investigation and is generally claimed by an Investigating officer for recording the statements of an accused detained in a jail in the same state or outside the state for any other offense. Such a warrant is sought to be issued for investigation in the offense which the investigating officer is controlling and only after the competent court is satisfied after sufficient evidence is present against the offender in the particular case. (Manoj v. State of M.P[1].)

In the present case, an FIR was logged on 25.04.2018 against the applicant for the offenses of giving some persons indefinitely unjust enrichment, forgery by disappearing the evidence of the offense, destroying the documents that were to be used as evidence and criminal conspiracy to appoint 1300 persons on the post of clerk, stenographer, junior engineer, and assistant engineer. In the present FIR, the applicant and with other four persons were being investigated by the Investigating Officer.

However, he was at the same time being taken into custody for another case in FIR No. 980 of 2019 and was confined in Sitapur District Jail. A B-warrant was issued on 18.11.2020 by a competent court.

The applicant has filed an application for anticipatory bail under section 438 Cr.P.C. for the FIR/ Case Crime No. 02 of 2018 filed under section 409, 420, 120 B, 201 IPC and under section 13(1)(d) of the Police Act.

The Court has to decide regarding the issuance of his anticipatory bail.

FACTS OF THE CASE

In the case, an application has been filed by the applicant under section 438 Cr.P.C. for anticipatory bail in connection with an offense under section 409,420, 120-B, 201 IPC and section 13(1)(d) of the PC Act, Police Act, Police Station SIT, District Lucknow.

But an FIR was logged on 25.04.2018 against the applicant based on an inquiry done by the Special Investigating Team U.P., Lucknow for the offenses of giving some persons indefinitely unjust enrichment, forgery by disappearing the evidence of the offense, destroying the documents that were to be used as evidences and criminal conspiracy to appoint 1300 persons on the post of clerk, stenographer, junior engineer and assistant engineer. In the present FIR, the applicant and with other four persons were being investigated by the Investigating Officer.

At the same time, he was taken under custody about FIR No. 980 of 2019 under section 120-B, 420, 467, 468,471 IPC, P.S. Civil Lines, District Rampur and under Sections 420, 467, 468, 471, 447, 201, 120-B IPC and Section 3 of Prevention of Damage to Public Property Act, P.S. Azeem Nagar, District Rampur. He was detained in the District Jail of Sitapur District. On 18.11.2020 a B-warrant was issued against him and was communicated to him by the Authorities of the jail of Sitapur District on 19.11.2020.

ISSUES

1. it can be deemed that the applicant is under the custody of FIR No .02 of 2018.

2. Whether the anticipatory bail application is maintainable here or not?

CONTENTIONS ON BEHALF OF THE APPLICANT

Learned counsel for the applicant argued that the mere issuance of a B-warrant does not imply that the applicant is taken into custody in the present case and so his bail application is maintainable. He also argued that even if the applicant is believed to be under custody since 19.11.2020, then also he is entitled to default bail because the chargesheet dated 24.05.2021 has not been filed from 90 days from 19.11.2020

CONTENTIONS ON BEHALF OF THE RESPONDENT

Respondent’s learned counsel argued that the present bail application is not maintainable under Section 438 Cr.P.C. because a B-warrant has been issued against the applicant which was communicated to him by the concerned District Jail Authorities implying that the applicant is in custody in the present case. So, an anticipatory bail application is not maintainable.

JUDGEMENT

The Court held that the applicant is deemed to be under custody in connection with the present FIR No 02 of 2018 after the issuance of the B-warrant under the provisions of Section 267(1) Cr. P.C..

The Court stated the case of Bobby@ Premveer and Anr. Vs. State of U.P[2]. When a B-warrant is issued by the court under section 267 Cr.P.C., the court has to be satisfied with the justification for issuance of the warrant. The B-warrant being sought by the prosecutor/investigating officer itself amounts to the fact that the prisoner is in custody. The following para was stated from the judgment-

If an action is a practical impossibility, no Court would be justified in insisting upon that action formally. The Criminal Court, when issuing B Warrant has to satisfy itself on the justification for issuance of such warrant. The fact that the prosecutor/Investigating Officer is seeking a B Warrant regarding the prisoner from the Criminal Court, itself amounts to showing the prisoner to be under custody. Whether or not on merits a B Warrant will be issued is a different matter, which has to be settled by that Court when it orders the issuance of the warrant. The Investigating Officer requesting the B Warrant and the Court issuing the B Warrant must have been informed of the prisoner's arrest as a well- fact.[3].

It was thus held that the anticipatory bail under Section 438 Cr.P.C. cannot be granted and the plea for default bail made by the learned counsel of the applicant also cannot be taken into consideration.

CONCLUSION

Through this case, the court ruled out that anticipatory bail cannot be issued under Section 438 Cr.P.C. as he is deemed to be under custody after the issuance of a B-warrant by the Court. For the issuance of a B-warrant, the pre-requisite is that the applicant must have been arrested and should be under the custody of the court and this fact must be known to the court issuing it and the investigating officer who is seeking such warrant.

REFERENCES-

Mohammad Azam Khan v. State of U.P. & Another Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No. - 5334 of 2021

[1] AIR 1999 SC 1403

[2] AIR 2000 CriLJ 4125

[3] ibid