Allahabad High Court
Pradeep Kumar Tyagi vs State Of U.P. on 25 January, 2023
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 77
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10774 of 2021
Applicant :- Pradeep Kumar Tyagi
Opposite Party :- State of U.P.
Counsel for Applicant :- Prateek Rai,Devid Kumar Singh,Rakesh Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Counter affidavit filed by learned A.G.A. in Court today, is taken on record. Office is directed to register the same.
List revised. No one has appeared on behalf of the applicant to press this application. Mr. Pankaj Srivastava, learned A.G.A. for the State is present.
The present application has been moved seeking anticipatory bail in Case Crime No.0097 of 2021, under Sections 313, 336, 420, 120-B I.P.C. & Sections 3, 4, 5, 6, 23, 29 of P.C.P.N.D.T. Act, 1994, and Sections 15(2) of I.M.C. Act, 1956 and Section 18 of Drugs and Cosmetics Act, 1948 and Sections 3, 4, 5 of M.T.P. Act, Police Station-Loni Border, District-Ghaziabad with the prayer that in the event of arrest, applicant may be released on bail.
On 21.06.2021, interim anticipatory bail was granted to the applicant. After which the matter has not been argued till date. Today, also no one has appeared on behalf of the applicant to press this application even in revised call.
On the basis of instructions, learned A.G.A. submits that investigation is pending. He further submits that applicant is not co-operating with the investigation and is absconding. The charges levelled against the applicant are serious in nature. He further submits that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
From the material and information, it is clear that applicant was not available to interrogation and investigation and is not co-operating in the trial. The applicant is absconding, therefore, a person who is absconding or concealing himself in order to avoid execution of warrants and proceedings under Section 82 of the Code, is not entitled to the relief of anticipatory bail. The aforesaid has been held by the Apex Court in the case of Prem Shankar Prasad vs. The State of Bihar and another reported in AIR (2021) SC 5125. Relevant paragraph no.16 of the afroresaid judgment is as under:-
"16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under : (SCC p. 733) "12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as 'absconder'. Normally, when the accused is 'absconding' and declared as a 'proclaimed offender', there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."
Thus the High court has committed an error in granting anticipatory bail to respondent No.2 accused ignoring the proceedings under Section 8283 of Cr.PC."
In order to make disposal of this application, it is relevant to mention Section 438 Cr.P.C., which is reproduced herein below:-
"438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)."
After the close scrutiny of Section 438 Cr.P.C.(U.P. Act No.4 of 2019) and its relevant clauses, the Court finds that there is nothing on record to show apprehension of arrest of the applicant.
In view of the above, this anticipatory bail application is, accordingly, dismissed. Interim order, if any, stands discharged.
It is open to the Court/authority concerned to proceed in accordance with law.
Registrar (Compliance) is directed to communicate this order to the concerned Court/authority for necessary information and compliance, forthwith.
Order Date :- 25.1.2023
Rahul.
