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  • In a case titled Ramesh vs State Through Dy RFO the Karnataka HC has said that once an accused appears before the Court either personally or through his pleader, he cannot seek an anticipatory bail under section 438 of CrPC.
  • In the instant case the Deputy Range Forest Officer seized three monitor lizards and three gray francolin from the house of the petitioner. Then a complaint was filed under Section 55(b) read with 51 of the Wildlife Protection Act in the lower Court.
  • The trial Court took cognizance of the offence and issued summons for the attendance of the accused. He appeared through his counsel and sought for an exemption under 205 of CrPC. The same was allowed by the Court. But he remained absent in the later stages, due to which a non- bailable warrant was issued against him.
  • He then sought an anticipatory bail by filing an application before the Sessions Court which was rejected. Aggrieved, he moved the HC.
  • The petitioner’s counsel submitted that no prima facie case was made against the petitioner and the search that was conducted was not in compliance with section 50(8) of CPC and hence the recovery was in itself doubtful.
  • The Karnataka HC, relying upon the judgement of the Court in S.R. Nagaraj vs. State of Karnataka (2011) and K. Somasekhar vs. State of Karnataka (2015) and held that if once, the accused appeared before the Trial Court and later could not appear before the Court and due to this, a warrant has been issued for his arrest, the remedy of anticipatory bail is not available to that person.
  • The Court observed that the accused had appeared before the trial court and had also made an application under 205 CrPC seeking an exemption from appearance for that day, the Court held that once an application for exemption has been allowed, the petitioner cannot invoke section 438 of CrPC. The Court said that the petitioner should have filed an application for recalling the warrant issued by the lower Court.
  • Thus, the Court held that the petitioner was allowed to legally appear before the trial Court and that once this has been allowed, he cannot plead that he was not allowed to attend legally, and hence the application under section 438 CrPC is not maintainable.
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