No blanket order should be passed under Section 438 Cr.P.C.: Kerala HC

The Court held that No blanket order should be passed under Section 438 Cr.P.C. to prevent the accused from being arrested when there is no crime registered against him.

Facts of the Court

  • Ansar M.C. was granted the anticipatory bail granted under Section 438 Cr.P.C. by the learned Sessions Judge.
  • The State Government came up challenging the said order in the High Court on the simple reason that no crime was registered against the accused/first respondent till that time.
  • The State Government also argued before the High Court that after more or less one month, the first respondent was impleaded in the array of accused. The crime was earlier registered on the allegation of the offence under Section 307, 324 r/w Section 34 IPC. Subsequently, Section 326 IPC was incorporated.
  • The present application is submitted both under Section 482 and 439(2) Cr.P.C. on the allegation that the earlier order granting anticipatory bail was used by the first respondent to avoid his arrest in connection with his impleadment subsequently as an accused in the existing crime.

Observation made by the Court

  • Going by the order granting anticipatory bail, prima facie, it appears that a fatal mistake crept in the order. When no crime was registered against the first respondent, it is not permissible to grant anticipatory bail, on the reason that it would act as a blanket as against all sort of accusations which may arise in future against the said person.
  • The procedure to be adopted is to direct the investigation to comply with the requirement under Section 41 A Cr.P.C., before effecting the arrest of accused so as to enable him to exhaust the remedy under Section 438 Cr.P.C.
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  • The Court significantly noted that when no crime is registered against a person, it is not permissible to grant him/her anticipatory bail, on the reason that it would act as a  blanket as against all sort of accusations which may arise in future against the said person.
  • Crucially, the Court held that the defect crept in the order (of the Sessions Court) cannot be cured under Section 439(2) Cr.P.C. because of the reason that the accused will get a right to exhaust the remedy under Section 438 Cr.P.C. based on the subsequent accusation and it cannot be curtailed by invoking the jurisdiction under Section 439(2) Cr.P.C.
  • By reserving the right of the first respondent to exhaust the remedy under Section 438 Cr.P.C. based on the present accusation, it is fit and proper to set aside the order granting anticipatory bail on the ground of non-registration of crime. Hence, the inherent power under Section 482 Cr.P.C. was invoked by the High Court and the order granting anticipatory bail was thereby quashed.

Case Name: State of Kerala v. Ansar M.C. & others.

Case no.: Crl.MC.No.4051 OF 2020(F)

Coram: HONOURABLE MR. JUSTICE P.SOMARAJAN

Also Read: Capital Punishment for the Offence of ‘gangrape’, Recommended the Karnataka HC

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