Allahabad High Court
Brahmanand vs State Of U.P. on 9 May, 2024
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:83560
Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4389 of 2024
Applicant :- Brahmanand
Opposite Party :- State of U.P.
Counsel for Applicant :- Sanjay Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
1. Heard Mr. Sanjay Yadav, learned counsel for the applicant and learned Additional Government Advocate for the State.
2. This anticipatory bail application (under Section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.299 of 2023, under Sections 419, 420, 467, 468, 471, 477-A IPC, Police Station Kotwali, District Mainpuri.
3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. The applicant is the bonafide purchaser of the land in question from its recorded owner whose name has been recorded in the revenue record. The applicant has purchased the aforesaid land through registered sale deed after payment of sale consideration before appropriate witnesses. The name of the applicant has already been recorded in the Khatauni and other revenue records. The applicant has never committed any forgery nor participated in the alleged forgery but the investigating officer without considering all aspects has submitted charge sheet against the applicant and the court below has taken cognizance and summoned the applicant in a routine manner. He further submits that on the same set of facts the co-accused Kelan Shree has obtained anticipatory bail from this Court vide order dated 06.11.2023 passed in Criminal Misc. Anticipatory Bail Application No.12153 of 2023, copy of order has been annexed as Annexure No.7 to the affidavit. He further submits that there is apprehension of imminent arrest of the applicant and in case, the applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial. The applicant is having no previous criminal history as has been mentioned in paragraph 4 of the supplementary affidavit.
4. Per contra, learned A.G.A. opposed the prayer for grant of anticipatory bail to the applicant and has stated that the court below has already issued NBW against the applicant and the accused applicant is absconding and concealing himself to avoid service of warrant of arrest. Proceedings under Sections 82 and 83 Cr.P.C. have already been initiated against the applicant. He has further submitted that a proclaimed person, who has been absconding from the process of law, is not entitled to the extra-ordinary discretionary relief of anticipatory bail. Reliance in this regard has been placed on Lavesh vs. State (NCT of Delhi) - (2012) 8 SCC 730, State of Madhya Pradesh vs. Pradeep Sharma (2014) 2 SCC 171, Prem Shankar Prasad vs. State of Bihar and another 2021 SCC Online SC 955 and Suresh Babu vs. State of UP and another - 2022 SCC Online ALL 679.
5. I have heard the submissions advanced by learned counsel for the parties and perused the material available on record.
6. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.
7. The Hon'ble Apex Court in Lavesh Vs. State (NCT of Delhi)(2012) 8 SCC 730 has held that "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."
8. Further, the judgment passed in Lavesh (supra) was referred by the Hon'ble Apex Court in State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 Supreme Court Cases 171 and referring to paragraph 12 of the judgment of Lavesh (supra), in paragraph 16 of the said judgment, it was observed as under :
"16.........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."
9. From the aforesaid case laws it is evident that as per normal rule, anticipatory bail cannot be granted to an accused who is absconding or concealing himself in order to avoid execution of the process of the Court without offering any legal or plausible justification for his abscondence and has been declared a proclaimed offender.
10. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant, all attending facts and circumstances of the case and the fact that allegations are serious in nature, without expressing any opinion on the merits of the case, in my view, it is not a fit case for anticipatory bail to the applicant. Prayer made in the application is refused.
11. The anticipatory bail application is rejected.
Order Date :- 9.5.2024
Ajeet
