Sunil Khandelwal vs The State Of Madhya Pradesh
2021 Latest Caselaw 2207 MP

1      HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                       MCRC No.21367/2021
                 Sunil Khandelwal Vs. State of MP

Indore: Dated:-09/06/2021:-
Heard through Video Conferencing.
     Shri Vinayak Balchandani, learned counsel for the applicant.
      Shri Ayushman Choudhary, learned Panel Lawyer for the State.
      With the consent, finally heard.
      This is second bail application under Section 438 of Cr.P.C. for
grant of anticipatory bail. Applicant is apprehending his arrest in
connection with Crime No.25/2021 registered at Police Station-
Neemuch City, District-Neemuch for the offence punishable under
Section 270, 272, 273, 420, 468, 465 of IPC.
2)    The first application was dismissed as withdrawn on
23.03.2021

.

3) Learned counsel for the applicant submits that the applicant has no criminal record. Co-accused Amit has been granted regular bail by this Court in MCRC No.21355/2021. The applicant will cooperate with the investigation and trial (if any). He will not tamper the evidence or material. The applicant may be given benefit of anticipatory bail because conclusion of trial etc. will take time in this pandemic era.

4) Shri Ayushman Choudhary, learned Panel Lawyer opposed the application mainly on the ground that applicant is absconding and in view of judgment of Supreme Court reported in 2021 SCC Online 176 (Nagendra Tiwari vs. State of MP), no anticipatory bail can be granted.

5)    I have heard the parties at length.
6)    The Apex Court in Siddharam Satlingappa Mhetre v. State of

Maharashtra, (2011) 1 SCC 694 has laid down the broad factors and parameters for the purpose of deciding an anticipatory bail. The same are as under:-

2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE MCRC No.21367/2021 Sunil Khandelwal Vs. State of MP

" 112. (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."

113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE MCRC No.21367/2021 Sunil Khandelwal Vs. State of MP

that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."

(emphasis supplied)

7) So far the question of maintainability of his anticipatory bail as per objection of learned Panel Lawyer is concerned, the point involve is no more res integra. In a recent judgment of this Court in Arif Masood vs. State of MP passed in MCRC No.45501/2020 reported in 2021 (1) JLJ 158, a Division Bench of this Court held as under:-

"21. In the case of Pradeep Sharma (supra), the principle laid down in Lavesh (supra) was followed. In the said case, it was brought to the notice of Supreme Court that a proclamation under Section 82 of Code was already issued on 29.11.2012. We are unable to persuade ourselves with the argument of Shri Kaurav that in Pradeep Sharma (supra), the Apex Court has taken a different view than the view taken in Lavesh (supra). In other words, it is not the ratio decidendi of Pradeep Sharma (supra) that anticipatory bail is not available to an absconder against whom a proclamation under Section 82 of the Code has not been issued. In MCRC. No.9567/14, this Court declined anticipatory bail in the peculiar facts of the said case and by taking note of the fact that in spite of direction issued by High Court under Section 438(1-B) of the Code, the applicant remained absent, which shows lack of bonafides on his part. Similarly, in MCRC. No.13420/14, in the peculiar factual backdrops of the said case, anticipatory bail was declined. In Muna Singh (supra), although learned Single Judge held that judgment of Supreme Court made it clear that an absconder against whom proceeding under Section 82 of the Code has been instituted is not eligible for the grace of the Court under Section 438 of Cr.P.C., we are unable to agree with this view taken by learned Single Judge. At the cost of repetition, in Lavesh (supra) and Pradeep Sharma (supra), it was made clear that when the accused is absconding and also declared as a 'proclaimed offender', question of granting anticipatory bail does not arise. As a rule of thumb, it 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE MCRC No.21367/2021 Sunil Khandelwal Vs. State of MP

cannot be said that an absconder against whom a proclamation under Section 82 of Cr.P.C. is not issued, is not entitled to get anticipatory bail."

8) In view of this judgment, I am unable to hold that this anticipatory bail application is not maintainable because admittedly applicant has not been declared as a "proclaimed offender".

9) If applicant's case is examined on the anvil of principles laid down in Siddharam Satlingappa Mhetre (supra), it will be clear that

1) applicant has no criminal record. 2) There exists no material to suggest that he may commit similar/same offence. 3) There is nothing to suggest that applicant can flee from justice.

10) Nature of accusation, in absence of criminal record is not that grave which may lead to a conclusion that sending him to custody is imperative and the only option. Applicant has given undertaking to cooperate with the investigation.

11) Considering the aforesaid and without expressing any opinion on the merits of the case, I deem it proper to allow the bail application. Accordingly, the bail application for anticipatory bail is allowed.

12) Accordingly, in the event of arrest, the applicant-Sunil Khandelwal S/o Kedarmal Khandelwal be released on anticipatory bail on furnishing personal bond in the sum of Rs.1,00,000/- (Rs.One Lac) along with one surety in the like amount to the satisfaction of arresting officer for his appearance before the Investigating Officer during the course of investigation as and when directed. Conditions of Section 438(2) Cr.P.C. shall also apply on the applicant during currency of bail.

13) With the aforesaid, the application stands disposed of.

Certified copy, as per rules.

                                                               (SUJOY PAUL)
                                                                  JUDGE
soumya        Digitally signed by
              SOUMYA RANJAN
              DALAI
              Date: 2021.06.10
              14:00:46 +05'30'