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Applications Under Sections 438 And 439 CRPC Not Maintainable For Offences Under Karnataka Protection Of Interest Of Depositors Act: High Court

Raashi Saxena ,
  29 November 2022       Share Bookmark

Court :
Hon’ble High Court of Karnataka
Brief :

Citation :
2022 Live Law (Kar) 481

Case title:
Shreesha Sasithota Prabhakaran Vs The State Of Karnataka

Date of Order:
10th November 2022

Justice Rajendra Badamikar



According to the Karnataka High Court, where offences under the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (KPIDFE) are included in the FIR, a plea under Section 438 (anticipatory bail) or 439 (bail) of the CrPC cannot be maintained.


Section 438 of the CrPC

  • Pre-arrest bail, usually referred to as anticipatory bail, is provided for in Section 438. Granting bail before an arrest occurs is referred to as anticipatory bail.
  • The features of Section 438 are based on specific terminology used in the provision that express the legislative intent and have helped the courts interpret the Section.
  • The practise of courts granting anticipatory bail has developed over time as a result of numerous cases. However, Gurbaksh Singh Sibbia v. State of Punjab [1980 AIR 1632] was the first case of this kind in which the Supreme Court meticulously outlined the guiding principles for the granting of anticipatory relief.
  • The Court ruled that the power granted by Section 438 is exceptional and should only be used in rare circumstances.

Section 439 of the CrPC

  • Any person who is in custody and has been charged with an offence may be directed to be released on bail under Section 439 (1) (a), and if the crime is one of the types described in subsection (3) of Section 437, the court may impose any appropriate restrictions for the purposes listed in that subsection.
  • A condition imposed by a magistrate while releasing an accused on bail may be set aside or modified by the High Court or the Court of Sessions under Section 439(1) (b).
  • The High Court or Court of Session may order that any person who has been released on bail under this Chapter be arrested and committed to custody, in accordance with Section 439 (2).


  • The petitioner in this case was the Director of a firm that has been charged with violating Sections 4 and 9 of the 2004 Act, Sections 420, 419, 406, 403, and 120-B of the IPC.
  • After the complainant, who had invested in the company, received neither a share nor a refund, a FIR was filed.
  • The FIR was initially filed under Section 420 of the IPC. However, the Sessions Court denied the petitioner's request for standard bail.
  • Charges under the 2004 Act were later added.
  • When the offence was initially solely claimed under Section 420 of the IPC, the High Court stated that the bail petition under Section 439 of the CrPC was not precluded. However, the incorporation of the KPIDFE Act's requirements brought the current issue to light.


Whether the petition filed under Section 438 and 439 of the CrPC maintainable when offences under the KPIDFE Act are integrated.


  • The petitioner has contested the learned Special Judge's decision to reject his bail plea. According to the petitioner's learned counsel, the KPIDFE Act does not prohibit the filing of any petitions under Section 439 of the Cr.P.C.
  • The knowledgeable attorney further argued that under Section 16 of the Act, the right to liberty under Article 21 of the Indian Constitution cannot be violated.
  • Therefore, he argues that the bar under Section 16 is not relevant and that the Court has concurrent jurisdiction under the provisions of 439 of the Cr.P.C. to consider this case.


  • Contrarily, the opposing counsel has vigorously resisted the bail petition on the grounds that it cannot be upheld and has drawn the court's attention to Section 16 of the KPID Act.
  • He argued that because the KPID Act is a special enactment, its provisions will take precedence over those of regular enactments.
  • The attorney also drew the court's attention to the purpose of the law in creating the Special Act as well as its breadth and structure, and he would go on to claim that the law's goal is to safeguard depositors' interests.
  • Additionally, he argued that Section 18 of the KPIDFE Act has precedential force and that the provisions of Section 439 of the Cr.P.C. cannot be used to issue bail when an alternative remedy is offered by the Act.
  • Therefore, he continued, the petitioners must file an appeal because the current petition cannot be maintained.


  • The bench observed that the 2004 Act provides the petitioner with an appellate procedure. However, the petitioner stated that he is not disputing the Special Court's ruling. This argument was rejected by the court.
  • The Court ruled that because bail is now being requested for offences both under the IPC and the KPIDFE Act of 2004, any ruling pertaining to the KPIDFE Act must be made by the Special Court and must be appealable under Section 439 of the CrPC.
  • The petitioner's claim that Section 439 of the Cr.P.C.'s is not affected by the legislative restriction under the KPIDFE Act is rejected.
  • It was noted that Section 19 of the Act had an overriding effect and stated that if any provisions of any other Act conflicted with those of this Act, the provisions of this Act would take precedence.
  • Additionally, it made reference to section 18 (2) of the Act, which holds that the requirements of section 438 of the Criminal Procedure Code do not apply to the provisions under this Act and prohibit the relief of anticipatory bail.


  • After a thorough consideration of all the facts, the court was of the opinion that when offences recognised by the KPIDFE Act are included, the petition under Section 438 or 439 of the Cr.P.C. cannot be maintained; the only available remedy is to file an appeal under Section 16 of the KPIDFE Act.
  • The petition was therefore dismissed with the petitioners free to pursue an appeal in accordance with Section 16 of the KPIDFE Act.

Click here to download the original copy of the judgement

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

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