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Rajeev Gupta (Advocate)     24 September 2022

Bail matter

Regular Bail grant 2 person  in false fir u/s 302, 504/34 ipc in 319 crpc then 1 person bail in 438 crpc can be granted in U. P. And maintinable in U. P. in 319 crpc. 

Reason for bail apply in 438 crpc applicant medical ground. 


If any judgement, case law of HC and Apex court for the above case pls send 


 2 Replies

Dr J C Vashista (Advocate)     25 September 2022

Please be clear whether your query is qua grant of anticipatory bail u/s 438 Cr PC or trail u/s 319 Cr PC since both the provisions are provided for different purposes which read as under: 

Section 438(1) in The Code Of Criminal Procedure, 1973

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a 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.

Section 319 in The Code Of Criminal Procedure, 1973

319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

Case Laws and Judgments related to Anticipatory Bail under Section 438 of CrPC

Gurbaksh Singh Sibbia & Ors., Vs. State of Punjab Supreme Court Of India Constitution Bench Judgment dated 09.04.1980 in Criminal Appeals Nos.335 Of 1978- (1980) 2 SCC 565 1980 AIR 1632. Anticipatory Bail- Judicial Balancing of Personal Liberty of Investigational Powers  Judgment.

D. K. Basu Vs. State of West Bengal Supreme Court Of India Judgment dated  18.12.1996, 01.08.1997,  24.07.2015, 1997 (1) SCC 416- 2015 (8) SCC 744. Arrest, Detention, Custodial Death & Torture-Damages & Compensation.

Anil Sharma - State Rep. By The C.B.I. Vs. Anil Sharma Supreme Court Of India Judgment dated 03.09.1997- 1997 (7) SCC 187. K T Thomas, J - Cancellation of Anticipatory Bail.

 Sidhartha Vashisht @ Manu Sharma, Criminal Appeal No. 179 Of 2007- Supreme Court Of India Judgment dated 12.05.2008, Bench: Justice P. Sathasivam and Justice Swatanter Kumar. Post Conviction Bail U/S-389 Cr.P.C.

Sidharam Satlingappa Mhetre vs. State of Maharashtra Supreme Court Of India Judgment dated 02.12.2010, 2011-1 SCC 694, AIR-2011-SC 312. Anticipatory Bail- Bail Laws Internationally- Factors And Parameters.

Sanjay Chandra v. Central Bureau of Investigation Criminal Appeal No.2178 of 2011. Supreme Court Of India Judgment dated 23.11.2011- (2012) 1 SCC 40, Bail in PMLA, ED, and Analogous Crimes.

Suresh Kalmadi Vs. CBI- Delhi High Court Judgment- 19.01.2012- Bail Application 1692 of 2011.

Arnesh Kumar Vs. State Of Bihar Supreme Court Of India Judgment dated 02.07.2014. Criminal Appeal No. 1277 of 2014 - (2014) 8 SCC 273. Anticipatory Bail- U/S-438 CrPC- Offence- IPC-S-498A- S-4 of the Dowry Prohibition Act, 1961.

Gautam Kundu Vs. Directorate of Enforcement (Prevention of Money Laundering Act), Government of India- Criminal Appeal No. 1706 OF 2015. Supreme Court Of India Judgment dated 16.12.2015, (2015) 16 SCC 1. Bail in PMLA, ED, and Analogous Crimes.

Rajesh Sharma Vs. State of U.P Criminal Appeal No. 1265 OF 2017. Supreme Court Of India Judgment dated 27.07.2017. 498A Bail Guidelines Qua Welfare Committee Family Members Personal Appearance .

Rohit Tandon Vs. The Enforcement Directorate, Criminal Appeal Nos.1878-1879-3JB-Supreme Court Of India Judgment dated 10.11.2017-Bail in PMLA, ED, and Analogous Crimes- Prevention of Money Laundering Act, 2012 (PMLA).


N.K.Assumi (Advocate)     25 September 2022

That section 438 CrPc was not extended to U.P. for may years and Lawyers and Courts in U.P., were employing Section 482 CrPc in stead of 438, but now it is also applicable in U.P.. There is no formula or rules for the court as to how anticipatory bail should be granted by the court, and it all depends on the facts and circumstances of the case and the materials that can influence the judge to grant or not to grant the same, The above expert has catalouge almost all the landmark judgment on the subject, and you can make the best use of  it.

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