Amit Kumar Upadhyay vs State Of M.P.
2022 Latest Caselaw 1385 MP

                                                       1
                           IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 31st OF JANUARY, 2022

                                     MISC. CRIMINAL CASE No. 3425 of 2022

                               Between:-
                      1.       AMIT KUMAR UPADHYAY S/O RAVINDRA
                               UPADHYAY , AGED ABOUT 38 YEARS,
                               OCCUPATION: PRIVATE JOB R/O HIMANSHU
                               MEGA          CITY MANDIDEEP   TEHSIL
                               GOUHARGANJ DISTRICT RAISEN (M.P)
                               PERMANENT R/O HOUSE NO. 134 VILLAGE
                               BARKA      MANJHA    DISTRICT  SIWAN
                               (BIHAR)PIN   CODE NO. 841243 (MADHYA
                               PRADESH)

                      2.       JYOTI UPADHYAY W/O SHRI AMIT KUMAR ,
                               AGED ABOUT 28 YEARS, OCCUPATION:
                               HOUSEWIFE       HIMANSHU MEGA    CITY,
                               MANDIDEEP,          TEHSIL-GOHARGANJ,
                               DISTRICT-RAISEN, PERMANENT- R/O H.NO-
                               134, VILLAGE-BARKA MANJHA, DISTRICT-
                               SIWAN(BIHAR)    PIN  841243  (MADHYA
                               PRADESH)

                      3.       LALBABU S/O SHRI RAMDAS SINGH , AGED
                               ABOUT 49 YEARS, OCCUPATION: PRIVATE
                               JOB   R/O D-18, HIMANSHU MEGA CITY
                               MANDIDEEP       TEHSIL     GOUHARGANJ
                               DISTRICT RAISEN (M.P) (MADHYA PRADESH)

                                                                                  .....PETITIONER
                               (BY SHRI KULDEEP SINGH RAJPOOT, ADVOCATE)

                               AND

                               STATE OF M.P. THROUGH P.S. MANDIDEEP
                               DISTRICT RAISEN (M.P) (MADHYA PRADESH)

                                                                                .....RESPONDENTS
                               (BY SHRI YOGENDRA DAS YADAV, GOVERNMENT ADVOCATE)
                                           (Heard through Video Conferencing)
                             This first anticipatory bail application coming on for admission this
                      day, Hon'ble Shri Justice Vivek Agarwal passed the following:
                                                        ORDER

This is first application under Section 438 of the Cr.P.C. for grant of anticipatory bail to the applicants, who are apprehending their arrest in connection with Crime No. 448/2021 registered at Police Signature SAN Not Verified

Digitally signed by APARNA TIWARI Date: 2022.02.01 18:46:33 IST

Station Mandideep, District Raisen (M.P.) for the offence punishable under Sections 456, 427, 294, 323, 506 and 34 of the Indian Penal Code.

Learned counsel for the applicants after arguing for some time submits that since all the offences are punishable with less than seven

years of imprisonment, therefore, ratio of law laid down by Supreme Court in case of Arnesh Kumar should have been invoked and if there was any requirement of the applicants during the course of the investigation then notice under Section 41-A of Cr.P.C. should have been issued to them. But Police is hand in glove with the complainants and they have not issued any notice.

Learned Government Advocate for the respondent/State submits that charge-sheet is already filed and this Court relying on the judgment of Supreme Court in case of Satender Kumar Antil Vs. Central Bureau of Investigation and Others in Special Leave to Appeal (Criminal) No.5191/2021 decided on 7.10.2021 directed t he applicants to appear before the trial Court upon filing of the charge sheet and to move application for bail and the trial Court shall consider such application in terms of the direction issued by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation (supra).

On going through the judgment passed by the Supreme Court in the case of Satender Kumar Antil versus Central Bureau of Investigation (supra), it is apparent that the applicant has been charged for the offence punishable with imprisonment of seven years or less not falling in category B&D. It is held that if applicant is not arrested during investigation and has cooperated throughout in the

investigation including appearing before the Investigating Officer whenever called then after filing of charge sheet/complaint, following courses should be adopted, namely, (a) ordinary summons at the first instance/including permitting appearance through lawyer; (b) if such an accused does not appear despite service of summons then bailable warrant for physical appearance may be issued; (c) Non-bailable warrant on failure to appear despite issuance of bailable warrant; (d) non-bailable warrant may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of accused, if such an application is moved on behalf of the applicant before

execution of the non-bailable warrant on an undertaking of the accused to appear physically on the next date(s) of hearing; and (e) bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.

I n the same terms, the present anticipatory application is disposed of directing the applicants to appear before the trial Court and move bail application which trial Court shall consider in the light of Satender Kumar Antil Vs. Central Bureau of Investigation and Others (supra).

In above terms, this anticipatory bail application is disposed of.

(VIVEK AGARWAL) JUDGE AT