Dismissed¶30

Aman Agrawal v. State of Chhattisgarh

Chhattisgarh HC18 Jan 2024MCRCA/1491/2023

Case brief

AI extract

What is this about?

MCRCA No. 1491 of 2023, High Court of Chhattisgarh, Bilaspur; Justice Rakesh Mohan Pandey; decided 19.01.2024. Second anticipatory bail application under Section 438 Cr.P.C. rejected as not maintainable; first application dismissed on merits on 13.10.2023 in M.Cr.C.(A) No.1248 of 2023; offences under Sections 420, 409, 34 IPC in Crime No. 302 of 2023, Police Station Ambikapur, District Sarguja; no change of circumstances; refund/settlement claimed; relies on Mohd. Shamim Khan Vs. State of Jharkhand (SLP (Crl.) No.9449/2021) and Rajbahadur Singh Vs. State of U.P. (2022 LiveLaw (AB) 493).

What did the court decide?

Where the first anticipatory bail application was dismissed on merits and there is no change of circumstance, a successive (second) application under Section 438 Cr.P.C. is not maintainable and is liable to be dismissed.

Aman Agrawal Vs State of Chhattisgarh — Cheating and Forgery | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MCRCA No. 1491 of 2023

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Aman Agrawal S/o Deshraj Agrawal Aged About 38 Years R/o 12/c, Khadiya Bazar, Sakti Nagar, District Sonbhadra (U.P.)

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---- Applicant

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Versus

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State Of Chhattisgarh Through Police Station Ambikapur, District Sarguja (C.G.)

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Pankaj Agrawal S/o Shri Laxmichand Agrawal, Udit Nagar, Narayan Complex Garidion Tower, 504, Rourkela (Odisa)

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		---- Respondents
For Applicant	:	Mr. Sanjay Agrawal, Advocate
For State/respondent No.1	:	Mr. Dilman Rati Minj, G.A.
For Respondent No.2/
Complainant	:	Mr. Neeraj Kumar Mehta, Advocate.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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19.01.2024

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This is the second bail application of the applicant. The first bail application has been dismissed on merits in M.Cr.C.(A) No.1248 of 2023 vide order dated 13.10.2023. The applicant who is apprehending arrest in connection with Crime No. 302 of 2023, registered at Police Station – Ambikapur, District – Sarguja, Chhattisgarh for the offences punishable under Sections 420 & 409, 34 of the Indian Penal Code.

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Learned counsel for the applicant would submit that the amount has already been refunded to the complainant and thus, they have amicably settled their dispute. Hence, the present applicant may be granted anticipatory bail.

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Learned counsel for respondent No.2/ complainant would submit that the applicant has refunded the amount.

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On the other hand, learned counsel for the State would submit that the bail application of the applicant was dismissed on merits and the very order was challenged by one of the accused persons before the Hon'ble Supreme Court and the bail application was dismissed. He would further submit that anticipatory bail is not a statutory right linked with Article 21 of the Constitution of India, therefore, successive pleas are not maintainable.

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He has placed reliance upon the judgment passed by the Hon’ble Supreme Court in the matter of Mohd. Shamim Khan Vs. State of Jharkhand, Special Leave to Appeal (Crl.) No.9449/2021 and the judgment passed by the High Court of Allahabad in the matter of Raj Bahadur Singh Vs. State of U.P., reported in 2022 LiveLaw (AB) 493.

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First bail application was dismissed on merits by a detailed order and second bail application has been preferred by the applicant more or less on the same grounds.

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In the matter of Mohd. Shamim Khan (supra) , the Hon’ble Supreme Court has deprecated the practice of filing second anticipatory bail application under Section 438 of Cr.P.C. and held as under :-

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“The first application under Section 438 of the Cr.P.C. filed by the petitioner was rejected by the High Court by an order dated 10.11.2020. There was no substantial change of circumstances placed on record while filing the second application seeking pre-arrest bail under Section 438 of the Code and that came to be rejected by the High Court under the order impugned dated 02.08.2021.

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Even before us, the learned Counsel for the petitioner is unable to show any change of circumstances to invoke

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the jurisdiction of filing second application under Section 438 of the Code before the High Court.

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We deprecate such practice of filing second application under Section 438 of the Code after the first being rejected.

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We have heard learned Counsel for the petitioner and find no reason to interfere in our jurisdiction under Article 136 of the Constitution.

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The Special Leave Petition is, accordingly, dismissed. Pending application(s), if any, shall stand disposed of.”

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In the matter of Rajbahadur Singh (supra), the High Court of Allahabad held that the power to grant anticipatory bail does not flow from Article 21 of the Constitution but it has been conferred by the Statute enacted by the Parliament whereas provisions contained in Section 439 flow from Article 21 of the Constitution of India. The observation made in para 8 as under :

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“8. Considering the aforesaid facts and circumstances of the case, I am of the view that there is no substantial difference between Sections 438 CrPC (Anticipatory bail) and 439 CrPC (Regular bail), as regards the appreciation of the case as to whether or not a bail is to be granted. The only distinction is that in a case under Section 438, the person who approaches the Court apprehends that he may be arrested without any basis whereas under Section 439, such person approaches the Court after his arrest. Evidently the power to grant anticipatory bail does not flow from Article 21 of the Constitution but it has been conferred by the Statute enacted by the Parliament whereas provisions contained in Section 439 flow from Article 21 of the Constitution of India. If bail application of the accused under Section 439 is dismissed once, he can move second and successive bail application on the ground of substantial change in factual situation between the earlier bail application and the subsequent one, but filing of second and successive bail applications on the basis of new argument and new twists on the same facts cannot be encouraged. Speedy trial is a Constitutional right of the accused provided to him by Article 21 of the Constitution. If first application of the accused who is in custody is dismissed on merits and the trial is delayed, the accused has a right to make second bail application on the ground of delayed trial. Section 439 relates to Constitutional right of the accused whereas Section 438 to his statutory right. The provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused.”

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Taking into consideration the facts of the present case and law laid down by the Hon’ble Supreme Court and the High Court of Allahabad, I am of the view that there is no change of circumstance and the first anticipatory bail application was dismissed on merits vide order dated 13.10.2023 and thus, this successive application is not maintainable and the same is hereby dismissed.

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Accordingly, the second bail application filed by the applicant under Section 438 of Cr.P.C. is rejected . The observations made in the course of this order are only for considering the case of the applicant on the application for grant of anticipatory bail. The concerned trial Court shall not be influenced or bound by the observations made in the course of this order.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Nimmi

Aman Agrawal v. State of Chhattisgarh

Case brief

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Aman Agrawal v. State of Chhattisgarh

Case brief

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