Accused cannot apply for anticipatory bail once he has appeared before trial court: Karnataka HC

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The Karnataka High Court recently dismissed an application for anticipatory bail after noting that the accused had already appeared before the trial court through a lawyer with an application to do away with his personal attendance in a matter [Ramesh v. State].

Justice HP Sandesh observed that the main question was whether Section 438 of the Criminal Procedure Code (CrPC) could be invoked once the petitioner appeared through counsel and sought exemption that was allowed.

” …once he appeared through the Court, whether it is through Counsel or personally, he cannot seek again anticipatory bail… once permitted to appear through counsel he cannot contend that he had not appeared physically…once he has been permitted to appear legally he cannot contend that he was not appeared before the Trial Court and hence petition under Section 438 of Cr.P.C., is not maintainable,” the single-judge ruled.

The Court noted that after the petitioner’s exemption from personal appearance was allowed, the trial court issued a non-bailable warrant against him. Instead of filing an application for recalling the warrant of the trial court issued for non-appearance, the petitioner had approached the High Court instead.

The High Court was hearing an anticipatory bail in relation to a case lodged against the accused by the Deputy Range Forest Officer, Gauribidanur Range, for offences punishable under Sections 2 (definition clause), 9 (prohibition of hunting) 50 (power of entry, search, detention) read with 51 (penalties) of the Wild Life (Protection) Act.

The prosecution alleged that the Deputy Forest Officer found three monitor lizards and three gray francolins in the petitioner’s home.

The trial court took cognisance of the offence, registered a case and issued summons to the accused. The lawyer for the accused sought for exemption of the presence of the accused on October 5, 2020, which was granted by the Court. However, as the accused continued to remain absent, the trial court issued a non-bailable warrant against him.

Before the High Court, counsel for the petitioner, Advocate Dhiraj AK, argued that there is no prima facie case against his client, and that the search conducted by the complainant was not in accordance with Section 50(8) (Power of entry, search, arrest and detention) of the Wild Life (Protection) Act, as it was a private complaint based on a seizure without any independent witness, creating a doubt on its veracity.

High Court Government Pleader Advocate Vinayaka contended that the petition itself was not maintainable, as the petitioner had appeared through his counsel before the trial court.

After hearing the arguments, the Court held that the petition under Section 438 CrPC was not maintainable. Liberty was given to the petitioner to approach before the trial court by filing an application to recall the warrant issued against him.

Read Order here:

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