Uttarakhand High Court
Kuldeep Singh Bhullar And Another ... vs State Of Uttarakhand on 13 July, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Anticipatory Bail Application No. 146 of 2022
Kuldeep Singh Bhullar and Another ...Applicants
Versus
State of Uttarakhand ....Respondent
Present:-
Mr. R.S. Sammal, Advocate for the applicants.
Mr. Lalit Miglani, A.G.A. for the State of Uttarakhand.
Hon'ble Ravindra Maithani, J. (Oral)
Applicants Kuldeep Singh Bhullar and Baljinder Singh seek anticipatory bail, in FIR No. 033 of 2014, under Sections 388, 195, 177 IPC, Police Station- Chorgaliya, District Nainital.
2. Heard learned counsel for the parties and perused the record.
3. Based on the FIR, chargesheet under Sections 388, 195, 177 IPC was submitted in the court in the year 2014 and cognizance was taken on 28.10.2014. It is the basis of Criminal Case No. 2613 of 2014, State Vs. Kuldeep Singh Bhullar & others, in the court of Additional Chief Judicial Magistrate, Haldwani, District Nainital ("the case"). It appears that the prosecutor moved an application in the case for withdrawal from the prosecution under Section 321 of the Code of Criminal 2 Procedure, 1973 ("the Code"). That application was rejected by an order dated 04.11.2016, passed in the case. In fact, the FIR was filed against the applicant on the ground that he had lodged a false FIR. In the FIR, lodged by the applicants, final report was submitted but after protest petition having been filed, it was treated as a complaint and by the order dated 30.08.2019, passed in Complaint Case No.341 of 2016, Baljinder Singh Vs. State and Others, cognizance was taken against the informant of the instant case and the others by the court of Civil Judge, Junior Division/Judicial Magistrate, Haldwani, District-Nainital, which order has been stayed by this Court in C482 No. 2263 of 2019, on 16.10.2019.
4. Learned counsel for the applicant would argue that, in fact, the report lodged by the applicant no.2 has not been correctly investigated. The final report was defective, on which cognizance has finally been taken by the Court and the proceeding of that case has been stayed. It is argued that the applicants are willing to face the trial. The case of applicant no.2 has found favour by the Court when the cognizance was taken on the protest petition. Hence, it is argued that it is a case for anticipatory bail.
5. On the other hand, learned State Counsel would submit that the applicants are absconders. Chargesheet in the 3 case was filed long back in the year 2014. Thereafter, the applicants have not been apprehended and warrants have been issued against them, which has been recorded in the order rejecting anticipatory bail by the court below on 30.06.2022. Hence, it is not a case fit for bail.
6. Learned State Counsel referred to the principles of law as laid down in the case of Prem Shankar Prasad Vs. State of Bihar and Another, 2021 SCC Online SC 955. In the case of Prem Shankar Prasad (supra), the Hon'ble Supreme Court observed about the conduct of an accused in the matters of grant of anticipatory bail is relevant. In Para 19 & 20, the Hon'ble Supreme Court has observed as hereunder:
"19. 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 Cr.PC 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 Cr.PC 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.
20. 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 Cr.PC, 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--4
(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 subsection 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 nonbailable 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-à-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) 5 "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."
7. The cognizance has been taken in the case on 28.10.2014. The applicants have yet not appeared in the case. As stated, an application under Section 321 of the Code, filed by the prosecutor, have also been rejected in the Year 2016. During the course of argument, it is argued that cognizance order taken in the case was challenged by the applicants in C482 Petition in this Court in the Year 2021, which is still pending.
8. These facts established one thing, that the applicants are aware that the case is pending against them and they have been summoned to appear. But they did not appear. The anticipatory bail application of the applicants has been rejected by the court below and in its order, the court has recorded that after cognizance has been taken, summon, bailable warrants and non-bailable warrants have already been issued against the applicants. It categorically establishes that the applicants are fleeing from justice. They are avoiding to face the trial and this ground alone is sufficient to deny the anticipatory bail to them.
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9. Therefore, having considered the submissions, this Court is of the view that the applicants are not entitled for anticipatory bail. The instant anticipatory bail application deserves to be dismissed.
10. The anticipatory bail application is accordingly dismissed.
(Ravindra Maithani, J.) 13.07.2022 Ravi Bisht