Naorem Priyobarta Singh vs Officer In Charge on 7 January, 2025

[Cites 63, Cited by 0]

Manipur High Court

Naorem Priyobarta Singh vs Officer In Charge on 7 January, 2025

Digitally signed by
KHOIROM KHOIROM IN THE HIGH COURT OF MANIPUR
BIPINCHAND BIPINCHANDRA SINGH
RA SINGH
Date: 2025.01.07
12:26:28 +05'30'
AT IMPHAL

AB No. 52 of 2024

Naorem Priyobarta Singh, aged about 36 years, S/o
Naorem Purniam Singh of Kakching Wairi Sabal Leikai,
P.O. & P.S. Kakching, Kakching District, Manipur -
795103.
...Petitioner
- Versus -

Officer in Charge, Kakching Police Station, Kakching
District, Manipur.

...Respondent

BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU

For the petitioner : Md. Ajmal Hussain, Advocate
For the respondent : Mr. M. Rarry, Senior Advocate
Date of hearing : 27.12.2024.
Date of judgment
& order : 07.01.2025

JUDGMENT & ORDER
(CAV)

[1] Heard Md. Ajmal Hussain, learned counsel appearing for the

petitioner and Mr. M. Rarry, learned Sr. counsel appearing for the

respondent at length.

[2] The present case has been filed under section 482 of the

Bharatiya Nagarik Suraksha Sanhita, 2023, [in the synopsis, the present

application is filed under Section 438 of Cr.P.C. But, in the first page of the

application, it was mentioned that the present application is filed under

Page 1
Section 482 of BNSS. But, at Para no. 2 of the application, it was

mentioned that the AB application is filed under Section 438 of the Cr.P.C.]

praying for;

i) To admit the present application;

ii) Call for the records;

iii) After hearing the parties grant pre-arrest bail or

anticipatory bail to the applicant u/s 482 of Cr.P.C. in

connection with FIR No. 66(07)2023 KCG PS U/s

147/148/149/152/188/307/332/341/342/427/506/511/

34 IPC for the ends of justice.

AND

IN THE INTERIM,

Pass an interim order directing the respondent/the

arresting authority to release the applicant forthwith on

bail in the event of his arrest in connection with the

above referred FIR No. 66(07)2023 KCG PS U/s

147/148/149/152/188/307/332/341/342/

427/506/511/34 IPC during the pendency of this

application for the ends of justice and to protect the

rule of law.

[3] The case of the petitioner is that on 19.07.2023, group of

bikers organized a bike rally from Kakching towards Moirang in violations of

the District Magistrate Kakching thereby causing damage to the property.

The said bike rally was organized by a group called Langsai Thouna, a

Page 2
group based in Kakching. In connection with the said incident, the Kakching

Police Station registered FIR No. 66(07)2023 KCG PS U/s

147/148/149/152/188/307/332/341/342/ 427/506/511/34 IPC and section

3 of Prevention of Damage of Public Property Act, 1984 against the

volunteers of Langsai Thouna. However, the name of the petitioner is not

mentioned anywhere in the said FIR and the same was not being

investigated for the last more than 1 and half year.

[4] It is further submitted that the personnel of Kakching Police

Station have been regularly visiting the residence of the petitioner with an

intention to cause harassment to the petitioner and arrest him in

connection with the said FIR case without issuing any summons or warrant.

It is also submitted that under section 35(3) of BNSS, 2023 notice of

appearance before a police officer is to be given to a person against whom

a reasonable complaint has been made but the act of the personnel of

Kakching Police Station clearly violate the relevant provisions of the Act i.e.

BNSS, 2023. It is also submitted that due to the peculiar situation in the

State of Manipur for the last more than one and half years, public protest

against the State Government and Central Government were frequently

organized where almost all the public are involved including the present

applicant but Kakching Police selectively target the applicant and his family.

Further, it is submitted that the action of the police amounts to abuse of

power since there is no material evidence or any incriminating material

against the petitioner.

Page 3
[5] It is submitted that the report was with distorted facts since

the route for bikers rally was upon the agreed routes wherein the

Superintendent of Police, Kakching himself contributed a handsome amount

of fuel charges for the said bikers. However, the police personnel acted

indifferently when they returned from Bishnupur wherein the Police denied

entry inside the local Deity for prayer which is a customary practice to pay

homage to the local Deity. It is also submitted that the cause of mob

escalation happened due to indiscriminate firing of tear gas shell by the

Police personnel wherein some bikers and local Ema's were injured. It is

further submitted that the said incident was amicably settled between the

police and the public with a condition that the injured bikers and Emas will

be treated by the Police by bearing all the expenses by the police. Further,

it is specifically submitted that though Langsai Thouna was leading the said

organization of Bikers rally amongst other but it was a peaceful event and

the same was organized with the help of police, the present petitioner was

not responsible for the mob nor he led the mob under any circumstances.

[6] Being aggrieved, the applicant/petitioner filed Cril. Misc (AB)

Case No. 66 of 2024 before the Court of Sessions Judge, Thoubal whereby

the Ld. Court of Sessions Judge, Thoubal passed interim order dated

13.12.2024 thereby granting interim relief to the applicant/petitioner.

Relevant portion of the order dated 13.12.2024 reads as follows:

"Perused the application. Considering the facts as disclosed
in the application, the matter will be considered only after a detail
report is furnished by the OC, Kakching PS.
Hence, the OC Kakching PS is directed to furnish a detailed
report regarding the application.

Page 4
In the meantime, interim pre-arrest bail is granted to the
petitioner till 16.12.2024. Thus, it is directed that in the event of
arrest in connection with the matter, the petitioner be released on
interim ball on his furnishing PR bond of Rs1,00,000/- (Rupees one
lak only) with a surety of like amount on the conditions that:
(i) The petitioner shall co-operate with the investigation;
(ii) The petitioner shall make himself available before the
investigation authority on or before 15.12.2024;
(iii) The petitioner shall not influence prosecution witnesses; and
(iv) The petitioner shall not leave the State of Manipur without
prior permission of the Court."

Accordingly, the I.O. of the Case has submitted his Bail

objection report before the Ld. Sessions Judge, Thoubal in connection with

the above referred FIR and the Bail Objection report reads as follows:

"Subject:- Submission of prayer for rejecting/cancel the Anticipatory
Bail in r/o Naorem Priyobarta Singh (36 yrs) s/o, N. Purnima Singh
of Kakching Wairi Sabal Leikai in c/w FIR No. 66(7)2023 KCG-PS,
u/s, 147/148/149/152/188/307/332/341/342/427/506/511/34 IPC
& section 3 of Prevention of Damage to Public Property Act, 1984.

Reference: Cril. MC No. 48 of 2024
Ref: AB No. 52 of 2024.

The brief fact of the case is that on 19/07/2023 at about
05:00 am received an information that a bike rally was being
organized by Langsai Thouna, a group based in Kakching, from
Kakching towards Moirang. On receipt of the information, police
control room informed to OC/KCG-PS. Thereafter, a large team of
District Police, Kakching under the supervision of Shri Th. Vikramjit
Singh, MPS, Superintendent of Police, Kakching took up preventive
measures so that curfew could be enforced effectively. However, at
about 07:30 am, learnt that a large number of people riding two-
wheeler vehicle had gathered at Kakching Lamkhai to carry out the
bike rally in complete violation of the order of the District
Magistrate, Kakching vide order no. 07/01/2017-DC-KCG dated
18th July, 2023. As soon as that information was received a large
police team of District Police, Kakching led by Shri Th. Vikramjit
Singh, MPS, Superintendent of Police, Kakching, Shri A. Romendro
Singh, i/c. Addl. SP(L/O), Kakching, Shri K. Gitchandra Singh,
SDPO-Kakching, OC/CDO Kakching, OC/Hiyanglam P.S, OC/Paliel
P.S along with their escort parties, team of CDOs from CDO unit
Kakching, Thoubal, WPCs of PS and Women Reserve Line and his
team rushed towards Kakching Lamkhai to impose curfew. On
arrival a large member of Langsai Thouna, including womenfolk of
Kakching who were planning to take part in the bike rally was
informed to disperse themselves. After proper discussion and
convincing the organizers of the bike rally the group dispersed

Page 5
themselves from the spot, at about 08:30 am, and went towards
the direction of Thoubal District. However, the large number of
District Police, Kakching under the supervision of Superintendent of
Police, Kakching remained alert at Kakching Bazar to further impose
curfew. At about 03:30 pm received information from sources that
some bikers crossed Wangoo area from the side of Bishnupur
District. On further verification it was confirmed that the said bikers
could be the same individuals who were dispersed from Kakching
Lamkhai area by the District Police in the same morning. Learning
that District Police further took stricter security measures in
Kakching Municipal area so that the curfew could be imposed. After
reaching Kakching area the bikers tried to forcibly break the
security barricade at Kakching Bridge which was manned by the
District Police headed by the District SP himself. The District Police
team prevented the bikers from causing security breach and
informed them to take different route as they were in complete
violation of curfew order. However, the bikers, which was part of
the rally organized by Langsai Thouna remained adamant and
formed unlawful assembly and openly confronted and obstructed
the police team on duty. After sometime the assembly turned
unruly mob, used abusive language and, little later, attacked the
police heavily from all sides by throwing stones and bricks. As the
situation was becoming vulnerable for the police team on duty, with
due permission from Executive Magistrate, police team had to
resort to firing of tear gas shells to disperse the unruly mob.
However, the mob became more violent and grew in numbers too.
Therefore, the police team had to resort to firing of some live
rounds apart from the tear gas shells. But the mob became more
violent and they chased and attacked the police officers and men
on duty causing bodily injuries. The mob also damaged 12 (Twelve)
number of police vehicles, including the vehicles of SP/Kakching
and Addl. SP, by using sticks and stones/bricks. The mob also broke
the police sentry booth of Kakching P.S and burnt it in front of the
P.S gate with an intention to cause damage the gate of Kakching
Police Station, thereby restraining and confining some police
officers and men inside the police station as well as posing threat to
their lives. Later the mob was dispersed with the intervention of
district administration and local leaders. These acts of Langsai
Thouna and its volunteers (bikers) are highly unlawful and
tantamount to serious threat to the lawful discharge of District
Police.
Hence, a suo-mottu case under FIR No. 66(07)2023 KCG-PS
u/s 147/148/149/152/188/307/332/341/342/427/506/511/34 IPC
and section 3 of Prevention of Damage to Public Property Act, 1984
has been registered for investigation. Hence the case.
During the course of investigation of the case, the examined
the complainant thoroughly who fully corroborated with the OE
lodged by him and recorded his detail statement u/s-161 CrPC in
c/w the case. The PO was visited and inspected, the spot falls at
Kakching bazaar bridge area, Kakching Phousupati area Kakching
PS gate and others were drawn with indices.

Page 6
As part of investigation many prosecution witnesses, who
were present on the day of the incident, were examined and the
fact of the case was ascertained one after another. From the
examination of Shri Th Vikram Singh, MPS, Superintendent of Police
Kakching statement that on 19/07/2024 bike rally was organized
from Kakching Lamkhai to Trongloubi by Langsai Thouna led
by..........................................................................................................
..............................................................................................................

............................................................................................................

At this stage, the investigation is going on in full swing efforts are on for cause of arrest all the main functionaries of Langai Thouna including Naorem Priyobarta Singh PRO of Langsai Thouna who also orchestrated the entire incident by taking undue advantage of the prevailing law and order situation in the state particularly in Kakching district for vested interest. From the investigation of the case and examination of the Kshetrimayum Rajiv Singh (Convenor of Langsai Thouna) & Naorem Jotish Singh (active member) presently in judicial custody at Sajiwa jail in c/w the present case stated that the Langsai Thouna led by the Kshetrimayum Rajiv Singh (Convenor) & Naorem Priyobarta Singh (PRO of Langsai Thouna), Naorem Jotish Singh and others vested groups had organised bike rally even though there was curfew imposed by DM/Kakching. The Langsai Thouna led by Ksh. Rajiv Singh, Naorem Priyobarta Singh & Naorem Jotish Singh and its functionaries had formed unlawful assembly in blatant defiance of curfew order issued by the DM Kakching and carried out the crime with clear knowledge and intention had been creating bad law and order situation in Kakching area for the past many months by taking undue advantage of the prevailing ethnic violence in Manipur. This was witnesses by various rank and files of the district police including SP/Kakching, Addl. SP (L&O) Kakching, OC/CDO- Unit Kakching and many more police personnel etc who were deployed for law and order from time to time.

The bike rally which came back from Moirang, Bishnupur district via Wangoo side to Kakching again and are planning to hold a public meeting at Naohalailampak, Kakching bazaar, thereby breaking prohibitory order issued by DC/Kakching. The curfew Imposed by the DM/Kakching was very strict at Kakching bazaar area by proper barricading at strategic location. However, the Bikers have forcefully crossed Keirak area towards Kakching bazaar area (by overpowering police teams). The bikers approached at bridge of Kakching bazar near the barricade and told to remove barricade & concertina wire as the bikers led by Langsai Thouna particularly led Ksh. Rajiv Singh, Naorem Priyobarta Singh & Naorem Jotish Singh and others including the bikers want to pass through Kakching bazaar as the rally want to assemble at Naoholailaikon, Kakching bazar. The bikers were told to disperse from the area and to return back to their respective houses as there is prohibitory order issued by DC/Kakching. However, the bikers grew in numbers and there were lots of noise from the bikes too. Some bikers grew hostile and starting hurling various abuses Page 7 to district police and the Manipur police department as a whole. Later some of them started pulling away the barricade and the Concertina wire but the district police led by SP/Kakching and Addl. SP(L&O) Kakching requested the bikers/Langsai Thouna led to not conduct in such violent manners and take the municipal route and leave the place peacefully. By then Rajiv, Priyobarta, Jotish and others had also joined amongst the bikers. The mike announcement team on the vehicle also arrived. The bikers became unruly and out of nowhere stones were pelted to the police by the bikers and the situation took a different direction.

As the police teams were less in numbers the unruly bikers took advantage and pelted many stones towards with intention to hurt the police personnel. As a result, to disperse the unruly bikers the police personnel started firing some tear gas shells. But the bikers tried to dominate the police personnel further by progressing forward. Even the SP/Kakching himself was personally bombarded with many stones/bricks and had to flee back towards bazaar area. Besides the bikers more people also came out at bazaar area and started chasing the police personnel towards the police station area. Meantime some womenfolk came in between and requested both the parties to talk peacefully. The womenfolk also assured that they would control the mob so that police can go back safely towards the police station area. So, the police personnel including SP/Kalkching, Addl. Sp (L&O) Kakching and other officers walked back with their vehicles following. Behind them were the womenfolk and the unruly mob. There was lots of shouting from behind and more people had joined the mob. When the district police crossed the Kakching Supermarket area (Phousupat Leikai) the mob led by Langsai Thouna members started breaking the police vehicles including SP/Kakching & Addl. SP(L&O) Kakching vehicles and started pelting stones with an intention to hurt and cause serious injuries to them and other police personnel. Some of the police were even pushed and hit physically. After reaching near the fire brigade office, the district police halted and asked the unruly mob including the women folk to not approach further and requested people to disperse from there. But the unruly mob protected by the womenfolk In the front again approached towards police direction. So, the police again retreated back. More womenfolk had joined in the front and the large unruly mob followed them behind.

As the womenfolk were in the front the police teams, including SP/Kakching & Addl. SP(L&O) kakching showed immense restraint and tried to talk to womenfolk repeatedly by requested them to take away the unruly mob to avoid further violence. Many Langsai members including Rajiv Singh, Priyobarta, Jotish, Raju and others were asked for the same thing but none of them cooperated with the police. Instead, the unruly mob pelted some more stones using womenfolk as their shield. The unruly mob then reached till the gate of Kakching police station and burnt the police sentry post near the main gate and also tried to barge in to the campus of police station with an intention to cause more violent activities.

Page 8 While some womenfolk were trying to calm the situation, many unruly members hurled abuses against SP/Kakching and other officers Including Addl. SP(L&O) Kakching. The unruly mob were instigated by Langsai Thouna led by Ksh. Rajiv Singh & Naorem Priyobarta Singh including Naorem Jotish Singh and functionaries threatened that they would burn the houses of the police personnel etc. However, with the help of some sensible leaders, the crowd was pacific and eventually dispersed. Furthermore, the mob warned that police should not intervene in any of the activities done by Langsai Thouna.

Langsai Thouna led by Kshetrimayum Rajiv Singh, Naorem Priyobarta Singh, Naorem Jotish Singh and others had openly defied the prohibitory order issued by DC/Kakching and damaged government properties, threatened police personnel on duty with dire consequence.

In the course of further investigation, on 22/12/2024 received an extract copy under Cril. MC No. 48 of 2024 (Ref: AB No. 52 of 2024 for submitting of prayer for rejecting/cancel the Anticipatory Bail in r/o the accused Naorem Priyobarta Singh (36 yrs) s/o, N. Purnima Singh of Kakching Wairi Sabal Leikai for report and hearing.

Therefore, considering the above fact and circumstances, the under noted accused person is highly required custodial interrogation to extract the detailsof his involvement in the case, and at the remaining co-associates and their motives/intentions in the case. Smooth and fair investigation could not be done without custodial interrogation.

In the view of the above facts and circumstances, Hon'ble Judge is, therefore, prayed kindly to cancel the Anticipatory Ball of the accused person by the Hon'ble court in the interest of the smooth investigation of the case.

Particulars of the accused person:-

Naorem Priyobarta Singh (36) yrs s/o, N. Pumima Singh of Kakching Wairi Sabal Leikai, PO&PS-kakching, Kakching district, Manpir Yours faithfully, Sd-

(Inspt. Ph. Priyobarta Singh) Officer-in-Charge, Kakching Police Station."

[7] Accordingly, after perusal of the bail report the Ld. Sessions Judge, Thoubal rejected the Anticipatory Bail application on 16.12.2024 on the ground that the petitioner never turned up before the investigating authority and do not follow the direction of the Court by not cooperating Page 9 with the investigating authority. Relevant portion of the order dated 16.12.2024 reads as under:

"The petitioner was granted pre-arrest bail on 13.12.2024 and was directed to appear before the investigating authority not later than 15.12.2024 and the investigating authority was directed to furnish report before this Court on 16.12.2024 for hearing.

The IO of the case has submitted his report today, i.e. 16.12.2024 stating that the petitioner never turned up before the investigating authority and not follow the direction of the Court by not co-operating with the investigating authority.

Ld. Addl. PP for the State prays for rejecting the present application as the petitioner do not comply with the Court's direction.

On being heard and after having perused, it is evident that the petitioner did not comply with the Court's directions. Hence, the interim bail granted to the petitioner on 13.12.2024 is hereby rejected."

It is admitted by the learned counsel for the petitioner that the petitioner did not appear before the investigating authority at all.

Hence, the present AB is filed by the petitioner/applicant.

[8] Learned counsel for the petitioner contended that the interim protection may be granted to the petitioner till the Hon'ble High Court disposed the pending Anticipatory Bail application with respect to other FIRs but the same was not considered and the petitioner was compelled to evade arrest wherein the Anticipatory bail application being AB No. 45 of 2024 with Cril. Misc. Case No. 41 of 2024, AB No. 46 of 2024 with Cril.

Misc. Case No. 42 of 2024, AB No. 47 of 2024 with Cril. Misc. Case No. 43 of 2024 in connection with (i) FIR No. 80(11)2024 KCG PS; (ii) FIR No. 81(11)2024 KCG PS; & (iii) FIR No. 85(11)2024 KCG PS pending before the Hon'ble High Court of Manipur but no application is pending with respect to the above referred FIR.

Page 10 [9] Mr. M. Rarry, learned Sr. counsel for the respondent has submitted his affidavit-in-opposition stating that the case of the petitioner for grant of Anticipatory Bail was earlier considered by the Ld. Sessions Judge, Thoubal in Cril. Misc(AB) Case No. 66 of 2024 and grant interim bail vide order dated 13.12.2024 while calling for Bail Objection Report had given an opportunity to the petitioner/accused person to cooperate with the Investigating Authority as one of the conditions in the interim bail order.

[10] It is further submitted that the petitioner is not entitled to the relief sought for in the present application keeping in mind the parameters laid down by the Hon'ble Apex Court and relied upon the following judgment in support of his case:

Mayanglambam Prabha Devi v. State of Manipur and others, 2022 SCC Online Mani 449- para 28 "28. In so far as the grant of refusal of the anticipatory bail, the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 has laid down the parameters as under:

"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused 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;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

Page 11

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

Srikant Upadhyay and others v. State of Bihar and another, 2024 SCC Online SC 282- para 16, 21, 24.

"16. The core contention of the appellants is that the rejection of the application for anticipatory bail without considering the application on merits for the reason of issuance of proclamation under Section 82, Cr.P.C., is unsustainable. It is the further contended that at no stage, the appellants were "evading the arrest" or "absconding" but were only exercising their legal right to seek anticipatory bail. It is in the aforesaid circumstances that the learned Senior Counsel appearing for the appellants raised the contention that when an application for anticipatory bail is pending, the issuance of proclamation, following issuance of non-bailable warrant could not be a reason for non-considering the application for anticipatory bail on merits.

21. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person Page 12 concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. P.C. which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail-

cum-surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. P.C. an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law.

24. There can be no room for raising a contention that when an application is filed for anticipatory ball, it cannot be adjourned- without passing an order of Interim protection. A bare perusal of Section 438 (1), Cr. P.C., would reveal that taking into consideration the factors enumerated thereunder the Court may either reject the application forthwith or issue an interim order for the grant of anticipatory ball. The proviso thereunder would reveal that if the High Court or, the Court of Sessions, as the case may be, did not pass an interim order under this Section or has rejected the application for grant of anticipatory ball, it shall be open to an officer in-charge of a police station to arrest the person concerned without warrant, on the basis of the accusation apprehended in such application. In view of the proviso under Section 438(1), Cr. P.C., it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail. In short, nothing prevents the court from adjourning such an application without passing an interim order. This question was considered in detail by a Single Bench of the High Court of Bombay, in the decision in Shrenik Jayantilal Jain v. State of Maharashtra Through EOW Unit II, Mumbai and answered as above and we are in agreement with the view that in such cases, there will be no statutory inhibition for arrest. Hence, the appellants cannot be heard to contend that the application for anticipatory bail filed in November, 2022 could not have been adjourned without passing interim order. At any rate, the said application was rejected on 04.04.2023. Pending the application for anticipatory ball, in the Page 13 absence of an interim protection, if a police officer can arrest the accused concerned how can it be contented that the court which issued summons on account of non-obedience to comply with its order for appearance and then issuing warrant of arrest cannot proceed further in terms of the provisions under Section 82, Cr. P.C., merely because of the pendency of an application for anticipatory bail. If the said position is accepted the same would be adopted as a ruse to escape from the impact and consequences of issuance of warrant for arrest and also from the issuance of proclamation under Section 82, Cr. P.C., by filing successive applications for anticipatory bail. In such circumstances, and in the absence of any statutory prohibition and further, taking note of the position of law which enables a police officer to arrest the applicant for anticipatory bail if pending an application for anticipatory bail the matter is adjourned but no interim order was passed. We have no hesitation to answer the question posed for consideration in the negative. In other words, it is made clear that in the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr. P.C., In accordance with law."

Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694- para 112 "112. The validity of the restrictions imposed by the Apex Court, namely that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the 57 Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty."

Jai Prakash Singh v. State of Bihar and another, (2012) 4 SCC 379- para 19 "19. The case at hand, if considered in the light of the aforesaid settled legal proposition, we reach an inescapable conclusion that the High Court did not apply any of the aforesaid parameters, rather dealt with a very serious matter in a most casual and cavalier manner and showed underserving and unwarranted sympathy towards the accused."

Shri Gurbaksh Singh Sibbia & Ors vs. State of Punjab , (1980) 2 SCC 565 - para 12 "12. We find ourselves unable to accept, in their totality, the submissions Full Bench of the High Court has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down s to read into the language so as of the statute Page 14 restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non-bailable cases and Section 439 which deals with the "special powers" of the High Court and the Court of Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail. That section reads thus:

437. When bail may be taken in case of non-bailable offence.-

(1) When any person accused of or suspected of the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:

Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on with such directions ball and gives an as may undertaking that he be given by the court.

(2) If it appears to such officer or court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on ball, or, at the discretion of such officer or court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on ball under sub. section (1), Page 15 the court may impose any condition which the court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice. (4) An officer or a court releasing any person on bail under sub- section (1) or sub-section (.), shall record in writing his or its reasons for so doing.

(5) Any court which has released a person on bail under sub- section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

Section 439(1)(a) incorporates the conditions mentioned in Section 437(3) if the offence in respect of which the bail is sought is of the nature specified in that sub-section. Section 439 reads thus:

439. Special powers of High Court or Court of Session regarding bail.- (1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) which it of Section 437, may Impose any condition which it considers necessary for the purposes mentioned that sub-section.

(b) that any condition Imposed by a Magistrate when reloading any person on ball be set aside or modified :

Provided that the High Court or the Court of Beaton shall, before granting ball in a person who is accused of an offence which i exclusively by or which, thought not to triable, punishable with imprisonment for life, give notice of the application Public Page 16 Prosecutor unless it is for reasons to be recorded in writing, of opinion that it is not practicable to give such notice, (2) A High Court or Court of Session may direct that say person who has been released on ball under this Chapter be arrested and commit him to custody.

The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 490. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure in our opinion, was made advisedly and purposefully Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of Introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory ball, said in paragraph 39.9 that it had "considered carefully the question of laying down in the stature certain conditions under which alone anticipatory ball could be granted" but had come to the conclusion that the question of granting such ball should be left "to the discretion of the court" and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, If it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative Intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory ball, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in clauses (i) to

(iv) of sub-section. (2).The proof of legislative Intent Can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory ball is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non- bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, Page 17 and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.

[11] Learned counsel appearing for the petitioner has also filed his rejoinder affidavit on behalf of the petitioner and with the rejoinder application, the petitioner annexed the order dated 13.12.2024 and relied upon the following judgments of the Hon'ble Apex Court:

Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694- para 85, 88, 91.

"85. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 CrPC has not been allowed its full play. The Constitution Bench in Sibbia case clearly mentioned that Section 438 CrPC is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439 CrPC. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some Courts of smaller strength have erroneously observed that Section 438 CrPC should be invoked only in exception or rare case. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia case.

88. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

91. The question which arises for consideration is whether the powers under Section 438 CrPC are unguided or uncanalised or are subject to all the limitations of Section 437 CrPC? The Constitution Bench in Sibbia case has clearly observed that there is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case"

for the exercise of the power to grant anticipatory bail. This Page 18 virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. The Court observed that (SCC p. 584, para 21) "21. .............We do not see why the provisions of Section 438 CrPC should be suspected as containing something volatile or incendiary which needs to be handled with the greatest carte and caution imaginable."

The learned counsel appearing for the petitioner also relied on the decision of 3(three) Judges Bench of the Hon'ble Apex Court passed in Writ Petition (Criminal) No. 279 of 2022 [Mohammed Zubair v. State of NCT of Delhi & Ors.] And

1. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 - Para 59 "59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

2. Priya Indoria v. State of Karnataka and others, (2024) 4 SCC 749- para 39,44, 46, 50 "39. In Gurbaksh Singh Sibbia v. State of Punjab ("Gurbaksh Singh Sebia"), a Constitution Bench of this Court speaking through Chandrachud, CJ., observed that society has a vital stake in preserving personal liberty as well as investigational powers of the police and their relative importance at any given time depends upon the complexion and restraints of political conditions. How best to balance these interests while determining the scope of Section 438 CrPC was the focus of the said case while dealing with the historical background of the said provision.

44. The concept of "anticipatory bail" was clearly explicated vide the 41st Law Commission Report year 1969, whereby the Law Commission observed as such:

"39.9. Anticipatory ball. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for Page 19 some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter."

emphasis added by us)

46. Observing that the crimes, the criminals and even the complainants can occasionally possess s extraordinary features, in Gurbaksh Singh Sibbia it was stated that "[w]hen the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism" The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere harassment and humiliation that of duty, is a great amount of inconvenience, can even take the form of the parading of a respectable person in handcuffs, apparently on way to a court of justice. The d foul deed is done when an adversary is exposed osed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.

50. Thereafter, the law anticipatory bail was further crystallised by on the Constitution Bench of this Court in Gurbaksh Singh Sibbia 16, where it disagreed with the reasoning of the Full Bench19 of the Punjab and Haryana High Court. It was observed that since the denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438 CrPC, especially when not imposed by the legislature in terms of the Section. It was observed that Section 438 CrPC is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion c of constraints and conditions which are not to be found in Section 438 CrPC can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 CrPC must be saved, not jettisoned."

However, the learned counsel for the respondent contradicts the reliance made by the petitioner in support of his case saying that in the facts and circumstance of the case preserving personal Page 20 liberty and restraining the investigational powers of the police does not arise at all.

3. Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1- para 7.2 "7.2. While considering the issues referred to a larger Bench, referred to hereinabove, the decision of the Constitution Bench of this Court in Gurbaksh Singh Sibbia is required to be referred to and considered in detail. The matter before the Constitution Bench in Gurbaksh Singh Sibbia arose out of the decision of the Full Bench of the Punjab and Haryana High Court. The High Court rejected the application for bail after summarising, what according to it was the true legal position, thus: (Gurbaksh Singh Sibbia case, SCC pp. 576- 77, para 11) "(1) The power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised sparingly in exceptional cases only;

(2) Neither Section 438 nor any other provision of the Code authorises 9 the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.

(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437, are implicit therein and must be read into Section 438. (4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.

(5) Where a legitimate case for the remand of the offender to the police custody under Section 167(2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.

(7) The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and (8) Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless."

Page 21 The learned counsel for the respondent contradicts the reliance made by the learned counsel for the petitioner.

4. Satish v. State of Haryana, (2012) 4 SCC 509- para 1 - 3.

"1. Application for impleadment/intervention is rejected. Leave granted.

2. This appeal is filed against the judgment and order dated 16-9- 2011 passed in the anticipatory bail application by the High Court of Punjab and Haryana at Chandigarh in Satish v. State of Haryana. The High Court has rejected the application for anticipatory bail.

3. This Court, on 31-10-20112, while issuing notice, has ordered for the release of the appellant on his furnishing the personal bond of Rs 20,000 with one surety in the like amount to the satisfaction of the investigating officer, subject to the condition that he will join the investigation as and when required and shall abide by the provisions of Section 438(2) of the Code of Criminal Procedure, 1973. In our opinion, the aforesaid order should be made absolute and is made absolute. The appeal is disposed of accordingly."

5. Shri Gurbaksh Singh Sibbia & Ors vs State of Punjab , (1980) 2 SCC 565 - para 10, 11 "10. Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while supporting the contentions of the other appellants, said that since the denial of bail amounts to deprivation of personal liberty, courts should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are imposed by the legislature in the terms of that section. The learned counsel added a new dimension to the argument by invoking Article 21 of the Constitution. He urged that Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must therefore be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article

21. Therefore, while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.

11. The Full Bench of the Punjab and Haryana High Court rejected the appellants' applications for bail after summarising, what according to it is the true legal position, thus:

Page 22 (1) The power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised sparingly in exceptional cases only;

(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet com- mitred or with regard to accusations not so far levelled.

(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437. are implicit therein and must be read into Section 438. (4) In addition to the limitations mentioned in Section 137, the petitioner must make out a special case for the exercise of the power to grant anticipatory ball.

(5) Where a legitimate case for the remand of the offender to the police custody under Section 167 (2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.

(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless, (7) The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and (8) Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless. It was urged before the Full Bench that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial. This argument was rejected with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the concept of equality before the law and that it could hardly be contended that every man of status, who was intended to be charged with serious crimes, including the one under Section 409, IPC which was punishable with life imprisonment, "was entitled to knock at the door of the court for anticipatory bail". The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail but is, if anything, an aggravating circumstance."

6. Arnesh Kumar vs State of Bihar &Anr (2014) 8 SCC 273 - para 5 "5. Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police Page 23 has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of independence, it is largely considered Cas a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then d proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive."

7. Mohammed Zubair vs State of NCT of Delhi &Ors in Writ Petition (Criminal) No. 279 of 2022 observed that;

"25 As evident from the facts narrated above, the machinery of criminal justice has been relentlessly employed against the petitioner. Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, the petitioner was subjected to multiple investigations across the country. Consequently, he would be required to hire multiple advocates across districts, file multiple applications for bail, travel to multiple districts spanning two states for the purposes of investigation, and defend himself before multiple courts, all with respect to substantially the same alleged cause of action. Resultantly, he is trapped in a vicious cycle of the criminal process where the process has itself become the punishment. It also appears that certain dormant FIRs from 2021 were activated as certain new FIRs were registered, thereby compounding the difficulties faced by the petitioner.

29 The counsel for the State of Uttar Pradesh attempted to persuade this Court that the petitioner must be barred from tweeting when he is on bail. Section 438(2) stipulates that the High Court or the Court of Sessions can direct a person to be released on conditional bail. The provision provides that the Court shall impose conditions in the context of the facts of a particular case. The list of illustrative ball conditions stipulated in Sections 437 and 438 relate to the need to ensure a proper investigation and fair trial or to prevent the accused from committing an offence similar to the one he is suspected of", or in the interest of Justice". The phrase 'Interest of justice' has been interpreted in prior judgments of this Court where it has been held that the discretion of the Court in imposing conditions on bail must be exercised judiciously and to advance a fair trial. The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed. In the decision in Parvez Noordin Lokhandwalla v. State of Maharashtra", a two-Judge Bench of this Court, of which one of Page 24 us (Dr DY Chandrachud) was a part, it was observed that bail conditions must not be disproportionate to the purpose of Imposing them:

"21. [........] The conditions which a court imposes for the grant of ball in this case temporary ball have tobalance the public interest in the enforcement of criminal Justice with the rights of the accused. The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of Investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case."

30 Merely because the complaints filed against the petitioner arise from posts that were made by him on a social media platform, a blanket anticipatory order preventing him from tweeting cannot be made. A blanket order directing the petitioner to not express his opinion an opinion that he is rightfully entitled to hold as an active participating citizen would be disproportionate to the purpose of imposing conditions on ball. The imposition of such a condition would tantamount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech. According to the petitioner, he is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos. Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession.

31 For the above reasons, we allow the petition in part in terms of the following directions:

(i) The petitioner shall stand enlarged on interim bail, subject to his filing a personal release bond in the amount of Rs 20,000 in connection with the following FIRs:

a) FIR No. 602/2021, dated 15.00.2021, PS Loni Border, district Ghaziabad u/s 153, 153-A, 206-A, 506, 120-0 and 34 IPC.

b) FIR No. 103/2021 dated 27.00.2021 registered at PS Chandauli for offences punishable under Section 67 of IT Act.

c) FIR No. 511/2021, dated 18.09.2021, PS Mohamadi district Lakhimpur, u/s 153-A, 1538/505(1)8 and 505(2) IPC.

d) FIR No. 220/2022 dated 01.06.2022, PS Khairabad, district Sitapur, u/Sec 205-A(2) IPC and Section 67 of IT Act.

Page 25

e) FIR No. 206/2022 dated 10.06.2022, PS Sikandrarao, Hathras, u/s 147, 149, 153A, 353, 188, 120-B of IPC and u/s 7 of the CLA Act; and

f) FIR No. 237/2022, dated 04.07.2022, PS HathrasKotwali on a complaint dated 14.06.2022 u/Sec 153-A. 205-A, 298 IPC and section 67 of the IT Act:

(ii) As regards Crime No 199 of 2021 dated 24 July 2021 registered at PS Charthawal, Muzaffarnagar, the charge-sheet under Section 173 of CrPC has been filed. The proceedings in respect of the said CaseCrime shall stand transferred to the Chief Judicial Magistrate, Patiala. House Courts and shall be taken up from the stage that has been reached before the earlier Court. The petitioner has been enlarged on bail. The order enlarging the petitioner on ball shall continue to remain in force;

(iii) The investigation into the FIRs set out in paragraph (1) above shall stand transferred from the Uttar Pradesh Police to the Special Cell of the Delhi Police. As a consequence, the SIT which was constituted by the Director General of Police, Uttar Pradesh on 10 July 2022, shall stand disbanded;

(iv) The directions contained in (i) and (iii) above shall stand extended to any other FIR which may be registered against the petitioner hereafter in respect of the same subject matter as the above FIRs in which event (a) the investigation of the FIR shall stand transferred to the Special Cell of the Delhi Police; (b) the petitioner shall be entitled to the order of interim bail, as set out above.

(v) The petitioner would be at liberty to pursue his rights and remedies in proceedings under Article 226 of the Constitution / Section 482 of CrPC before the High Court of Delhi in respect of the FIRs which have been or which may be registered against him, and in that event, nothing contained in this judgment shall amount to an expression of opinion on the merits of such proceedings; and

(vi) The bail bonds in compliance with the above direction shall be presented before the Chief Judicial Magistrate at the Patiala House Courts, Delhi. Immediately upon the presentation of the bail bonds, the Superintended at the Tihar Jail shall take necessary steps to ensure that the petitioner is released from judicial custody no later than by 6 pm today."

8. Criminal Major Acts.

9. Criminal Manual (2022).

10. The Constitution of India.

The facts and circumstances of the present case and the facts and circumstances as narrated in the Hon'ble Supreme Court's orders are not similar and not reliable in the present case.

Page 26 [12] Perused the observation made by the Hon'ble Supreme Court in the above citations made by the learned counsel for the petitioner and also the reliance made in the above mentioned Acts & Rules, this Court is of the view that considering the nature of case and the facts and circumstances as set out by the petitioner and respondents and discussion and observation made by this Court, this Court is of the view that the Hon'ble Supreme Court's observation made herein above are not maintainable/reliable in the petitioner's case.

[13] Mention is made here that due to apprehension of arrest, the petitioner filed AB before the Ld. Sessions Judge, Thoubal. The Ld. Sessions Judge, interim relief with the following conditions:

"Perused the application. Considering the facts as disclosed in the application, the matter will be considered only after a detail report is furnished by the OC, Kakching PS. Hence, the OC Kakching PS is directed to furnish a detailed report regarding the application.

In the meantime, interim pre-arrest bail is granted to the petitioner till 16.12.2024. Thus, it is directed that in the event of arrest in connection with the matter, the petitioner be released on interim ball on his furnishing PR bond of Rs 1,00,000/- (Rupees one lak only) with a surety of like amount on the conditions that:

(i) The petitioner shall co-operate with the investigation;

(ii) The petitioner shall make himself available before the investigation authority on or before 15.12.2024;

(iii) The petitioner shall not influence prosecution witnesses; and The petitioner shall not leave the State of Manipur without prior permission of the Court"

With condition to appear before the I.O. of the case on or before 15.12.2024.

[14] Thereafter, the Ld. Sessions Judge, after getting the bail objection report and after hearing both sides, rejected the earlier interim bail order was rejected with the following observations:

Page 27 "The petitioner was granted pre-arrest bail on 13.12.2024 and was directed to appear before the investigating authority not later than 15.12.2024 and the investigating authority was directed to furnish report before this Court on 16.12.2024 for hearing.

The IO of the case has submitted his report today, i.e. 16.12.2024 stating that the petitioner never turned up before the investigating authority and not follow the direction of the Court by not co-operating with the investigating authority.

Ld. Addl. PP for the State prays for rejecting the present application as the petitioner do not comply with the Court's direction.

On being heard and after having perused, it is evident that the petitioner did not comply with the Court's directions. Hence, the interim bail granted to the petitioner on 13.12.2024 is hereby rejected."

[15] The relevant sections in the present case are 147/148/149/152/188/307/332/341/342/427/506/511/34 IPC. As per the law laid down in the provisions, the alleged sections made in the present are serious in nature on top of that the nature of allegation set out in the prosecution as extracted above, the offence alleged against the accused/petitioner is of serious in nature. For this matter, this Court is relying on the guidelines set out in the above mentioned citations which were reproduced hereinabove.

Mayanglambam Prabha Devi v. State of Manipur and others, 2022 SCC Online Mani 449- para 28 "28. In so far as the grant of refusal of the anticipatory bail, the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 has laid down the parameters as under:

"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused 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;

Page 28

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

Srikant Upadhyay and others v. State of Bihar and another, 2024 SCC Online SC 282- para 16, 21, 24.

"16. The core contention of the appellants is that the rejection of the application for anticipatory bail without considering the application on merits for the reason of issuance of proclamation under Section 82, Cr.P.C., is unsustainable. It is the further contended that at no stage, the appellants were "evading the arrest" or "absconding" but were only exercising their legal right to seek anticipatory bail. It is in the aforesaid circumstances that the learned Senior Counsel appearing for the appellants raised the contention that when an application for anticipatory bail is pending, the issuance of proclamation, following issuance of non-bailable warrant could not be a reason for non-considering the application for anticipatory bail on merits.

21. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above Page 29 are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. P.C. which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail-

24. There can be no room for raising a contention that when an application is filed for anticipatory ball, it cannot be adjourned- without passing an order of Interim protection. A bare perusal of Section 438 (1), Cr. P.C., would reveal that taking into consideration the factors enumerated thereunder the Court may either reject the application forthwith or issue an interim order for the grant of anticipatory ball. The proviso thereunder would reveal that if the High Court or, the Court of Sessions, as the case may be, did not pass an interim order under this Section or has rejected the application for grant of anticipatory ball, it shall be open to an officer in-charge of a police station to arrest the person concerned without warrant, on the basis of the accusation apprehended in such application. In view of the proviso under Section 438(1), Cr. P.C., it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail. In short, nothing prevents the court from adjourning such an application without passing an interim order. This question was considered in detail by a Single Bench of the High Court of Bombay, in the decision in Shrenik Jayantilal Jain v. State of Maharashtra Through EOW Unit II, Mumbai and answered as above and we are in agreement with the view that in such cases, there will be no statutory inhibition for arrest. Hence, the appellants cannot be Page 30 heard to contend that the application for anticipatory bail filed in November, 2022 could not have been adjourned without passing interim order. At any rate, the said application was rejected on 04.04.2023. Pending the application for anticipatory ball, in the absence of an interim protection, if a police officer can arrest the accused concerned how can it be contented that the court which issued summons on account of non-obedience to comply with its order for appearance and then issuing warrant of arrest cannot proceed further in terms of the provisions under Section 82, Cr.. P.C., merely because of the pendency of an application for anticipatory bail. If the said position is accepted the same would be adopted as a ruse to escape from the impact and consequences of issuance of warrant for arrest and also from the issuance of proclamation under Section 82, Cr. P.C., by filing successive applications for anticipatory bail. In such circumstances, and in the absence of any statutory prohibition and further, taking note of the position of law which enables a police officer to arrest the applicant for anticipatory bail if pending an application for anticipatory bail the matter is adjourned but no interim order was passed. We have no hesitation to answer the question posed for consideration in the negative. In other words, it is made clear that in the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr. P.C., In accordance with law."

In Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, the Hon'ble Apex Court elucidated the principles for consideration of grant of anticipatory bail, which are as under:

"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Hussain, (2008) 1 SCC 213, and Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305)."

[16] Considering the guidelines set out in the above mentioned Hon'ble Supreme Court's judgments, this Court is of the view that the nature and allegations made in the present prosecution case alleged against the accused/petitioner is of such a serious offence that the present Page 31 case is squarely covered by the observation made herein above by the Hon'ble Supreme Court because:

(i) The alleged offences made in the FIR are serious in nature.

(ii) There are four FIR cases registered against the accused person.

(iii) After getting the interim order from the Sessions Judge, Thoubal, the present accused/petitioner failed to comply with the conditions imposed in the said bail order.

(iv) As per the accusation made in the FIR and nature of the facts mentioned therein does not seem that the object of the police for trying to arrest does not seem to be for injury or humiliating the accused/petitioner.

Considering the prayer of the petitioner, the balance is in favour of the prosecution.

[17] On over all analysis of the materials produced by both sides, this Court is of the view that considering the nature and gravity of the offence leveled against the petitioner, this Court is of the view that granting anticipatory bail to the petitioner who is not cooperating with the investigation is in-appropriate.

[18] As per the submission of the learned counsel for the petitioner, the petitioner did not go to the Kakching Police Station due to the pendency of the applications in respect of other FIRs which were registered against the present petitioner. Accordingly, the petitioner was compelled to evade arrest wherein, the anticipatory bail for the other FIRs pending before the High Court.

Page 32 But, it was admitted that the petitioner did not appear before the I.O. of the case on 15.12.2024 inspite of the direction of the Ld. Sessions Judge, Thoubal.

[19] As per the prosecution and as mentioned in the bail objection report and as reflected in the order of the Ld. Sessions Judge, Thoubal, the petitioner/accused did not/never appear before the I.O. of the case inspite of the conditions put forth in the bail order of the Ld. Sessions Judge, Thoubal. After going through the above mentioned development other than the facts and circumstances of the case and considering the conditions imposed on the petitioner/accused by the Ld. Sessions Judge, Thoubal while granting interim bail, this Court is of the considered view that the petitioner violated the direction of the Ld. Sessions Judge, Thoubal.

[20] Mention is also made here that there are 4(four) FIRs registered against the accused/petitioner including the present FIR and 3 others, one is registered in the year 2023.

[21] As discussed earlier and as reflected in the order of the Ld. Sessions Judge, Thoubal, the interim protection was granted till 16.12.2024, the accused/petitioner if at all desired to assist the investigation of the case he should have visit the police station in subsequent days. In these circumstances, this court is of the view that the accused/petitioner violate/disobeyed the condition put forth by the Ld. Sessions Judge, Thoubal in this regards the Hon'ble Supreme Court in the catena of judgment observed as thus;

Page 33 [22] In Srikant Upadhay and others vs. State of Bihar & Another, [(2024) SCC Online SC 282], the Hon'ble Supreme Court observed that:

"10. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hindrance to the normal flow of investigation method when called upon to exercise the power under section 438, Cr.P.C., courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. By saying so, we mean that a person, having subjected to investigation on a serious offence and upon making out a case, is included in a charge sheet or even after filing of a refer report, later, in accordance with law, the Court issues a summons to a person, he is bound to submit himself to the authority of law. It only mean that though he will still be at liberty, rather, in his right, to take recourse to the legal remedies available only in accordance with law, but not in its defiance. We will dilate this discussion with reference to the factual matrix of this case. However, we think that before dealing with the same, a small deviation to have a glance at the scope and application of the provisions under Section 82, Cr.P.C. will not be inappropriate.

16. The core contention of the appellants is that the rejection of the application for anticipatory bail without considering the application on merits for the reason of issuance of proclamation under Section 82, Cr.P.C., is unsustainable. It is the further contended that at no stage, the appellants were "evading the arrest" or "absconding" but were only exercising their legal right to seek anticipatory bail. It is in the aforesaid circumstances that the learned Senior Counsel appearing for the appellants raised the contention that when an application for anticipatory bail is pending, the issuance of proclamation, following issuance of non bailable warrant could not be a reason for non-considering the application for anticipatory bail on merits.

18. Section 70 (2), Cr.P.C. mandates that every warrant issued under Section 70(1), Cr.P.C. shall remain in force until it is cancelled by the Court which issued it, or until it is executed. In this case, as noticed hereinbefore, the bailable warrants and thereafter the non- bailable warrants, were issued against the appellants. They were neither cancelled by the Trial Court nor they were executed. It is not their case that they have successfully challenged them. Sections 19, 20, 21, 174 and 174 A, IPC assume relevance in this context. They insofar as relevant read thus:

19. "Judge". The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body or Page 34 persons, which body of persons is empowered by law to give such a judgment.

20. "Court of Justice". The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when a Judge or body of Judges is acting judicially. 21 "Public servant". The words "public servant denote a person falling under any of the descriptions hereinafter following, namely:-

[Third-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions:] 3/4. Non-attendance in obedience to an order from public servant. Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974. Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Criminal Procedure Code, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with Imprisonment for a term which may extend to seven years and shall also be liable to fine.

19. Taking note of the aforesaid facts with respect to the issuance of summons, warrants and subsequently the proclamation, a conjoint reading of Sections 19, 20 and 21, IPC containing the terms "Judge", "Court of Justice" and "Public Servant" and Sections 174 and 174A, IPC can make them liable even to face further proceedings. Same is the position in case of non-attendance in obedience to proclamation under Section 82, Cr. P.C.

20. Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel v. State of Gujarat, the High Court of Gujarat observed thus:-

"9. Filing of an Anticipatory Ball Application by the petitioners- accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is Page 35 concerned: otherwise each absconding accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding under Section 83 of the Code claiming that he cannot be termed as an absconder in the eve of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely."

(underline supplied)

21. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. P.C. which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail- cum-surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. P.C. an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law.

24. There can be no room for raising a contention that when an application is filed for anticipatory ball, it cannot be adjourned- without passing an order of Interim protection. A bare perusal of Section 438 (1), Cr. P.C., would reveal that taking into consideration the factors enumerated thereunder the Court may either reject the application forthwith or issue an interim order for the grant of anticipatory ball. The proviso thereunder would reveal that if the High Court or, the Court of Sessions, as the case may be, did not pass an interim order under this Section or has rejected the application for grant of anticipatory ball, it shall be open to an Page 36 officer in-charge of a police station to arrest the person concerned without warrant, on the basis of the accusation apprehended in such application. In view of the proviso under Section 438(1), Cr. P.C., it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail. In short, nothing prevents the court from adjourning such an application without passing an interim order. This question was considered in detall by a Single Bench of the High Court of Bombay, in the decision in ShrenikJ ayantilal Jain v. State of Maharashtra Through EOW Unit II, Mumbai and answered as above and we are in agreement with the view that in such cases, there will be no statutory inhibition forarrest. Hence, the appellants cannot be heard to contend that the application for anticipatory bail filed in November, 2022 could not have been adjourned without passing interim order. At any rate, the said application was rejected on 04.04.2023. Pending the application for anticipatory ball, in the absence of an interim protection, if a police officer can arrest the accused concerned how can it be contented that the court which issued summons on account of non-obedience to comply with its order for appearance and then issuing warrant of arrest cannot proceed further in terms of the provisions under Section 82, Cr.. P.C., merely because of the pendency of an application for anticipatory bail. If the said position is accepted the same would be adopted as a ruse to escape from the impact and consequences of issuance of warrant for arrest and also from the issuance of proclamation under Section 82, Cr. P.C., by filing successive applications for anticipatory bail. In such circumstances, and in the absence of any statutory prohibition and further, taking note of the position of law which enables a police officer to arrest the applicant for anticipatory bail if pending an application for anticipatory bail the matter is adjourned but no interim order was passed. We have no hesitation to answer the question posed for consideration in the negative. In other words, it is made clear that in the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr. P.C., In accordance with law.

25. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that ball is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the Page 37 freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to...."

[23] In Sushila Aggarwal v. State (NCT of Delhi), [(2020) 5 SCC 1] the Hon'ble Supreme Court observed that:

"34. It was argued that undoubtedly violation of a condition imposed in an order passed under Section 438 can lead to a direction of arrest under Section 439(2). However, the scope of Section 439(2) is not limited to only cancellation of bail. The counsel stated that this proposition of law was considered by this Court in Pradeep Ram v. State of Jharkhand, 2016 SCC Online Jhar 3254. In this case, this Court while considering an earlier judgment in Mithabhai Pashabhai Patel v. State of Gujarat, (2009) 6 SCC 332 held that by virtue of Sections 437(5) and 439(2), a direction to take a person into custody could be passed despite his being released on bail, by a previous order. The Court held that under Sections 437(5) and 439(2) a person could be directed to be taken into custody without necessarily cancelling his earlier bail. The difference between cancellation of bail and a direction to take a person into custody under Section 439(2) was recognised. It was also held in this case that if a graver offence is added to the FIR or to the case after the person has been granted bail, a direction under Section 439(2) or 437(5) is required before such person can be arrested again for the new offences added to the case. Therefore, this Court recognised the need for the court's supervision after the bail had been granted.

............................................................................................................ ............................................................................................................

68. The imposition of conditions under Section 438(2) with reference to Section 437(3), in the opinion of this Court, is enough safeguard for the authorities -- including the police and other investigating agencies, who have to investigate into crimes and the possible complicity of the applicants who seek such relief. Taking each concern i.e. the addition of more serious offences; presence of a large number of individuals or complainants; possibility of non- cooperation -- non-cooperation in the investigation or the requirement of the accused's statement to aid the recovery of articles and incriminating articles in the course of statements made during investigations -- it is noticeable, significantly, that each of these is contemplated as a condition and is invariably included in every order granting anticipatory bail. In the event of violation or alleged violation of these, the authority concerned is not remediless : recourse can be had to Section 438(2) read with Section 437(3). Any violation of these terms would attract a direction to arrest him.

Page 38 This power or direction to arrest is found in Section 437(5). However, that provision has no textual application to regular bail granted by the Court of Session or High Courts under Section 439 or directions not to arrest i.e. order of anticipatory bail under Section 438. Secondly, Section 439(2) which is cast in wide terms, adequately covers situations when an accused does not cooperate during the investigation or threatens to, or intimidates witness[es] or tries to tamper with other evidence.

............................................................................................................ ............................................................................................................ 77.4. At the same time, however, at any time during the investigation were any occasion to arise calling for intervention of the court for infraction of any of the conditions imposed under Section 437(3) read with Section 438(2) or the violation of any other condition imposed in the given facts of a case, recourse can always be had under Section 439(2).

............................................................................................................ .......................................................................................................... 85.8. It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non- cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court, in this context, is the court which grants anticipatory bail, in the first instance, according to prevailing authorities."

[24] In Himanshu Sharma v. State of M.P., [(2024) 4 SCC 222] the Hon'ble Supreme Court observed that:

"11. Law is well settled by a catena of judgments rendered by this Court that the considerations for grant of bail and cancellation thereof are entirely different. Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail:

(a) the accused has misused the liberty granted to him;

(b) flouted the conditions of bail order;

(c) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail;

(d) or that the bail was procured by misrepresentation or fraud."

[25] In Puran v. Rambilas, [(2001) 6 SCC 338] the Hon'ble Supreme Court observed that:

Page 39 "10. Mr Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram v. State of Haryana, (1995) 1 SCC 349. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society.

Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected."

[26] In 2023 Livelaw (SC) 731 : 2023 INSC 779 [Abhishekvs State of Madhya Pradesh], the Hon'ble Supreme Court observed that:

"17. In Bhajan Lal (Supra), this Court had set out, by way of illustration, the broad categories of cases in which the inherent power under section 482 Cr.P.C. could be exercised. Para 102 of the decision reads as follows:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

Page 40 (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding 9 against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

[27] In 2022 SCC Online Mani 449 : (2023) 1 GLT 187 in Mayanglambam Prabha Devi vs. State of Manipur, the High Court of Manipur observed as follows:

"28. In so far as the grant of refusal of the anticipatory bail, the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 has laid down the parameters as under:

Page 41 "112.The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused 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;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

Page 42

29. In Jai Prakash Singh vs State of Bihar, (2012) 4 SCC 379, the Hon'ble Apex Court elucidated the principles for consider of grant of anticipatory bail, which are as under:

"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu Vs. P.T. Monokaran, (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Susain, (2008) 1 SCC 213, and Union of India v Padam Narain Aggarwal, (2008) 13 SCC 305).""

[28] The factual narration made herein before revealed the consistence disobedience of the accused/petitioner to comply with the orders of the Ld. Sessions Judge, Thoubal as even knowing about that the protection was given till 16.12.2024, the accused/petitioner did not try to appear before the IO of the case on the above mentioned date as well as on subsequent dates. Such conduct of the accused/petitioner in the light of the aforesaid circumstance leaves this Court with no hesitation to hold that the accused/petitioner is not entitled to seek the benefit of pre-arrest bail.

[29] As the guidelines relied by the Hon'ble Supreme Court made in Gurbaksh Singh Sibbia case are totally against the petitioner to get his relief as considering the nature of power given under Section 438 which is of an extraordinary character and the same must be exercised sparingly in exceptional cases, the present case as set out by the petitioner for getting relief does not come under exceptional cases, the limitation imposed in the preceding Section 437, limits the exercise of Section 438, the petitioner failed to make out a special case for exercise of the power to grant anticipatory bail, considering the serious nature of the case, the Page 43 discretion under Section 438 of the Code should not be exercised, the investigating authority as well as the orders of Ld. Sessions Judge, Thoubal did not commit malafide in their investigation as well as in the order.

[30] The present application for anticipatory bail is filed under Section 482 of BNSS, 2023. The legal principles applicable apropos Section 482 therein, it was observed that an accused comes before the High Court, invoking the inherent power under Section 482 Cr.P.C. The submission of the learned counsel for the petitioner is that similarly situated incumbents were already released by the Judicial Magistrate First Class, Kakching, this Court considered the grounds taken herein above by the accused/petitioner, but as per the available facts and circumstances of the case and submissions made herein above by the learned counsel for the petitioner, this Court is of the view that the grounds taken herein above by the accused/petitioner are not acceptable.

In this regard, this Court is relying on the categories of cases in which, the inherent power under Section 482 of Cr.P.C. could be exercised by the High Court as set out in Bhajan Lal's case made at Para No. 102 and the same is reproduced herein below:

"17. In Bhajan Lal (supra), this Court had set out, by way of illustration, the broad categories of cases in which the inherent power under Section 482 Cr.P.C. could be exercised. Para 102 of the decision reads as follows:

'102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to Page 44 prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever each a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

[31] On over all analysis of the materials produced by both sides and the reliance made by both parties on the cited Hon'ble Supreme Court's cases and discussion and observation in this regard made by this Court, this Page 45 Court is of the view that the present application for granting anticipatory bail is liable to be dismissed.

[32] Accordingly, this Court finds the accused/petitioner commits violation of the condition imposed in the anticipatory bail orders passed by the Ld. Sessions Judge, Thoubal. This Court is of the view that the above extracted observation made in the Supreme Court Judgments are wholly sufficient for this Court to come to the conclusion that the present application filed by the accused/petitioner for anticipatory bail liable to be dismissed.

[33] Accordingly, the present anticipatory bail application filed by the accused/petitioner is rejected.

JUDGE FR/NFR Lucy/Bipin Page 46

Legal Document View

Unlock Advanced Research with PRISMAI

Manipur High Court

Naorem Priyobarta Singh vs Officer In Charge on 7 January, 2025