Madhya Pradesh High Court
Hakeekat Ray Somani vs The State Of Madhya Pradesh on 27 December, 2021
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 MCRC-64261-2021
The High Court Of Madhya Pradesh
MCRC No. 64261 of 2021
(HAKEEKAT RAY SOMANI Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 27-12-2021
Shri Maneesh Kholiya, learned counsel for the applicant.
Shri Vijay Kumar Shukla, learned Panel Lawyer for the
respondent/State.
This application under Section 438 of the Code of Criminal Procedure has been filed in regard to registration of Crime No. 326/2021 at Police Station Baihar, District Balaghat under Section 3/7 of the Essential Commodities Act 1955.
Learned counsel for the applicant has placed reliance on the decision of co-ordinate Bench of this High Court at Indore in M.Cr.C. No. 26957/2020 (Rakesh Kumar Vs. State of M.P. ) dated 05/09/2020 wherein though a co-ordinate Bench has noted that offence under Section 3/7 of the Essential Commodities Act is a bailable offence but has proceeded to extend benefit of grant of anticipatory bail only on the ground that Investigating agencies may not be aware of the correct legal position.
Shri Kholiya, learned counsel has also placed reliance on the decision of co-ordinate Benches of this Court namely in M.Cr.C. No. 51616/2021 dated 26/11/2021, M.Cr.C. No. 25022/2021 dated 22/07/2021 and M.Cr.C. No. 57521/2021 dated 25/11/2021 (Gwalior Bench) wherein the co-ordinate Benches of this Court have followed the order passed by a co-ordinate Bench at Indore in the case of Rakesh Kumar (supra).
However, looking to the fact that language of Section 438 Cr.P.C. is unambiguous and Section 438 (1) provides that "where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the court of sessions for a direction under this section that in the event of such arrest, he shall be released on bail, and that the Court may after taking into consideration inter alia the following factors".
Signature Not Verified SAN Digitally signed by VAIBHAV YEOLEKAR Date: 2021.12.27 17:06:04 IST2 MCRC-64261-2021 The fact of the matter is that anticipatory bail is admissible only when accusation of commission of non-bailable offence is made. Admittedly, once a co-ordinate Bench has held that offence under Section 3/7 of the Essential Commodities Act is a bailable offence, then there is no application of Section 438 of the Cr.P.C., in case of a bailable offence.
Since, there is no application to Section 438, in bailable offences, therefore, merely to clear the doubts of the Investigating agency, orders cannot be passed dehors the intent of the legislature as legislative intent being supreme it cannot be supplanted by court orders. These orders passed by co-ordinate Benches, cannot be treated to be a binding precedent inasmuch as they fail to consider the provisions contained in Section 438(1) Cr.P.C. and merely to clear the doubts in the mind of Investigating agency if orders are passed, then that would amount to violence be done to the substantial provisions of law. That being impermissible, the application fails and is dismissed.
(VIVEK AGARWAL) V. JUDGE vy Signature Not Verified SAN Digitally signed by VAIBHAV YEOLEKAR Date: 2021.12.27 17:06:04 IST