Allahabad High Court
Yusuf Miyan vs State Of U.P. And Anr on 20 January, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2168 of 2020 Applicant :- Yusuf Miyan Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Ashutosh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Counter affidavit filed by learned AGA today in the Court, is taken on record. Office is directed to register the same.
List revised. No one has appeared on behalf of the applicant to press this application.
Mr. K.P. Pathak, learned AGA for the State is present.
The present application has been moved seeking anticipatory bail in Case Crime No. 222 of 2017, under Sections 419, 420, 181, 205, 467, 468, 471, 120B IPC, P.S.-Kagarole, District-Agra, with the prayer that in the event of arrest, applicant may be released on bail.
Earlier, by order dated 08.09.2020, an interim protection was granted to the applicant.
Learned AGA submits that after investigation, the charge sheet has been submitted against the applicant being Charge sheet No.67 of 2020, dated 18.08.2020. In para 8 of the counter affidavit, it has been stated that the applicant is no co-operating with the investigation and the proceedings under Section 82&83 Cr.P.C. have also been initiated against the applicant, therefore, no case for anticipatory bail is made out.
Before considering the case on merit with regard to prayer for anticipatory bail, I have to consider that since there are proceedings initiated against applicant under Sections 82 and 83 Cr.P.C., whether in the facts and circumstances of present case, the applicant is entitled for anticipatory bail or not?
In this regard it is relevant to rely upon the judgment passed by the Apex Court in Prem Shankar Prasad vs. State of Bihar and another, AIR 2021 SC 5125 wherein similar facts since proceedings under Sections 82 and 83 Cr.P.C. were initiated, the Apex Court has held that if anyone has been declared as absconder/ proclaimed offender under Section 82/83 Cr.P.C., he is not entitled for relief of anticipatory bail. The relevant paragraphs of the judgement in Prem Shankar Prasad (supra) are reproduced as under:
"7.2. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that Respondent No. 2-Accused is absconding and even the proceedings Under Sections 82-83 of Code of Criminal Procedure have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to Respondent No. 2-Accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings Under Sections 82-83 of Code of Criminal Procedure by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.
7.3. In the case of State of Madhya Pradesh v. Pradeep Sharma (Supra), it is observed and held by this Court that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of Code of Criminal Procedure, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under:
14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under:
438. Direction for grant of bail to person apprehending arrest.--(1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
The above provision makes it clear that the power exercisable Under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person Accused of an offence is not likely to otherwise misuse his liberty.
15. In Adri Dharan Das v. State of W.B. (2005) 4 SCC 303 this Court considered the scope of Section 438 of the Code as under: (SCC pp. 311-12, para 16)
16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power Under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has 'reason to believe' that he may be arrested in a non-bailable offence. Use of the expression 'reason to believe' shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the Accused. A blanket order should not be generally passed. It flows from the very language of the Section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail 'whenever arrested for whichever offence whatsoever'. Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order Under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.
16. Recently, in Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730, this Court (of which both of us were parties) considered the scope of granting relief Under Section 438 vis-a-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under: (SCC p. 733)
12. From these materials and information, it is clear that the present Appellant was not available for interrogation and investigation and was declared as 'absconder'. Normally, when the Accused is 'absconding' and declared as a 'proclaimed offender', there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
Thus the High court has committed an error in granting anticipatory bail to Respondent No. 2-Accused ignoring the proceedings Under Section 82-83 of Code of Criminal Procedure."
(emphasis supplied)"
From these materials and information, it is clear that the present applicant was not available for interrogation and investigation and the proceedings under Sections 82/83 Cr.P.C. have also been initiated against him.
In view of the above, the applicant is not entitled for anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also issued under Section 83 Cr.P.C. and, therefore, as held in Prem Shankar Prasad (supra), the applicant is not entitled for anticipatory bail.
Accordingly, this anticipatory bail application is dismissed.
Order Date :- 20.1.2023 Jitendra/-