Madhya Pradesh High Court
Manishankar vs The State Of Madhya Pradesh on 17 June, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:14370
IN THE HIGH COURT OF MADHYA PRADESH
AT I n d o r e
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 17th OF JUNE, 2025
MISC. CRIMINAL CASE No. 16469 of 2025
MANISHANKAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vivek Singh - Sr. Advocate with Shri Akash Rathi - Advocate
for the applicant.
Shri K. K. Tiwari - Govt. Advocate for respondent/State.
ORDER
This second application has been filed by applicant under Section
438 of Cr.P.C./482 of Bharatiya Nagarik Suraksha Sanhita 2023 for grant of
anticipatory bail in connection with Crime No. 124/2025 registered at Police
Station- Industrial Area, District- Dewas, (M.P.) for offence punishable
under Sections 34(2) of M.P. Excise Act. The first anticipatory bail
application was disposed off vide order dated 20.03.2025 passed in M.Cr.C.
no. 10918/2025 with the direction that the Investigation Officer/Trial Court
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shall ensure compliance with the guidelines and directions laid down in
cases of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273 and
Satender Kumar Antil Vs. Central Bureau of investigation (2022) 10
SCC 51, Siddharth vs. State of Uttar Pradesh & Another, reported in
(2022) 1 SCC 676 and Amanpreet Singh Vs. CBI 2022 (13) SCC 764.
2. As per the case of prosecution, the police force of P.S. Industrial
Area, Dewas conducted a raid for verification of secret information at the
godown of Ajay Vilas Bar of Dewas on 31.01.2025. Ajay, Pawan and
Neeraj were found at the godown. The country made foreign liquor beer -
total quantity 406.56 Litres was found in the godown. The liquor was seized
from the joint possession of Ajay, Pawan and Neeraj. Ajay informed that
Sunny had provided him contact of Rahul Jaiswal. He approached Rahul
Jaiswal for providing the liquor. Rahul Jaiswal had brought the illicit liquor
in the night of 31.01.2025 which was kept in the godown. The police has
seized such liquor. On such information, Sunny and Rahul Jaiswal were also
apprehended. Rahul Jaiswal in his statement recorded under Section 23(2)
of Bhartiya Sakshya Adhiniyam informed that he had purchased the illicit
liquor from Manishankar Tiwari, Manager of Wine Shop at Hatpipaliya.
Applicant - Manishankar is apprehending arrest in the matter.
3. Learned Counsel for the applicant in addition to the grounds
mentioned in the application, submits that applicant has been falsely
implicated in this matter merely on the basis of statement of co-accused in
police custody, which is not admissible in evidence against the applicant.
No incriminating material connecting the applicant with the alleged offence
was seized during investigation. The applicant has not committed the crime.
The custodial interrogation of the applicant would not be required in the
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matter, as co-accused have been arrested and released on regular bail.
Applicant would suffer severe prejudice by incarceration in custody. He was
working as Manager at a Wine Shop and has a family to look after. There is
no likelihood of his absconsion. He is ready to cooperate in investigation.
Therefore, applicant may be extended the benefit of anticipatory bail.
4. Per contra, learned Counsel for the State opposes the bail application
on the ground of gravity of alleged offence and contends that the applicant
has not co-operated in the investigation. He is absconding since registration
of FIR. The Superintendent of Police, Dewas had offered prize money for
information regarding his whereabouts. Learned counsel cites criminal
history of another case for offence punishable u/S 34(2) of M.P. Excise Act
registered at Crime No. 424/2007 at P.S. Nishatpura Bhopal.
5. In reply, learned counsel for the applicant submits that applicant has
never been convicted for any offence.
6. Heard the argument. Perused the grounds stated in the application for
grant of anticipatory bail and the case diary.
7. Section 34(2) of M.P. Excise Act provides as under:
34. Penalty for unlawful manufacture, transport, possession, sale etc.
(1) ........
(2) Notwithstanding anything contained in sub-section (1), if a person is
convicted for an offence covered by clause (a) or clause (b) of sub-section (1) and
the quantity of the intoxicant being liquor found at the time or in the course of
detection of the offence exceeds fifty bulk liter, he shall be punishable with
imprisonment for a term which shall not be less than one year but which may
extend to three years and with fine which shall not be less than twenty five
thousand rupees but may extend to one lac rupees :Provided that when any person
is convicted under this section for an offence for second or subsequent time, he
shall be punishable for every such offence with imprisonment for a term which
shall not be less than two years but which may extend to five years and with fine
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which shall not be less than fifty thousand rupees but may extend to two lac
rupees.
8. Section 59A of M.P. Excise Act lays down an interdict with regard to
maintainability of the application for grant of anticipatory bail as under:
59A. Certain offence under the Act to be non-bailable.
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973
(No. 2 of 1974) or Section 59 of the Act,-
(i) no application for an anticipatory bail shall be entertained by any Court in
respect of a person accused of an offence punishable under Section 49-A or in
respect of a person not being a person holding a licence under the Act or rules
made thereunder who is accused of an offence covered by clause (a) or clause
(b) of sub-section (1) of Section 34 with quantity of liquor found at the time or
in the course of detection of such offence exceeding fifty bulk litres.
(ii) .........
(iii) ........
9. A Division Bench of the High Court of Madhya Pradesh, in case of
Naresh Kumar Lahriya Vs. State of M.P. & Others reported in 2004(4)
MPHT 205, while dealing with constitutional validity of Section 59A of the
M.P. Excise Act, held as under:
24. Before we part with the case we think it appropriate to state though Section
59-A of the Act provides that the Court shall not grant anticipatory bail to a
person accused of offence under Section 49-A of the Act or to accused under
Section 34 (a) and (b) of the Act in respect of a person who docs not hold the
licence under the Act or Rules or has been found in possession at the time of
detection more than 50 bulks of liquor, yet the accused always in a positive
manner, before the Competent Court, putforth that there no offence has been
made out under Section 49-A or 34 (a) and 34 (b) of the Act. It is worthnoting
here that though in the case of Ram Krishna (supra) the Apex Court has held that
the Section 18 of the SC & ST (Prevention of Atrocities) Act. 1989, whereby the
applicability of the Section 438 of the Code has been taken away, as intra vires,
many decisions have been rendered granting anticipatory bail on the foundation
that the basic ingredients of the offence is not made out. Similarly, we have no
hesitation in holding that it would be open to a accused to show that no offence
inviting frown of Section 59-A (i) of the Act is made out as the basic ingredients
are absent. It needs no emphasis that it would be dependent of the fact of each
case. We may hasten to state here that merely because Section 438 is not
applicable to certain categories of offences, the Court is not bereft of power only
because in the FIR the said offences are mentioned. It can not be stated with
certitude that if the accused can putforth a case or make out of a case, though the
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offences which have been mentioned under Section 59-A (i) of the Act do find
mention in the FIR, but essentially and factually the case docs not fall under the
said provision, irrefragably the Court can entertain the application for grant of
anticipatory bail because it is not the nomenclature which should govern the
scenario but the real essence. We may repeat at the cost of repetition that our
observations do not clothe the Court with the power to grant anticipatory bail
under Section of the Code and transgress the enacted provision inasmuch as we
have held it to be intra vires but we only say that if the accused can, by
clarificatory means with substantial material putforth and bring it to the notice of
the Court that the offences which are encapsuled under Section 59-A (i) of the
Act are really not in respect of which the accused has been roped in and sought to
be arrested are actually not within its ambit or sweep and not covered by it then
the eclipse created by the provision gets lifted and the accused can seek the ambit
of umbrellas of Section 438 of the Code.
10. The Supreme Court while dealing with similar provisions contained
under Section 18A of the Scheduled Castes and Scheduled
Tribes(Prevention of Atrocities) Act, 1989 in the case of Prathvi Raj
Chauhan Vs. Union of India and Others reported in (2020) 4 SCC 727
held as under:
28. In Subhash Kashinath Mahajan v. State of Maharashtra & Ors reported in
2018 (4) SCC 454, a two judge bench of this court held that the exclusion of
anticipatory bail provisions of the Code of Criminal Procedure (by Section 18 of
the Act) did not constitute an absolute bar for the grant of bail, where it was
discernable to the court that the allegations about atrocities or violation of the
provisions of the Act were false. It was also held, more crucially, that public
servants could be arrested only after approval by the appointing authority (of such
public servant) and in other cases, after approval by the Senior Superintendent of
Police. It was also directed that cases under the Act could be registered only after
a preliminary enquiry into the complaint. These directions were seen to be
contrary to the spirit of the Act and received considerable comment in the public
domain; the Union of India too moved this court for their review. In the review
proceedings, a three judge bench of this court, in Union of India v. State of
Maharastra reported in (2020) 4 SCC 761 recalled and overruled those directions.
32. As far as the provision of Section 18A and anticipatory bail is concerned, the
judgment of Mishra, J, has stated that in cases where no prima facie materials
exist warranting arrest in a complaint, the court has the inherent power to direct a
pre-arrest bail.
33. I would only add a caveat with the observation and emphasize that while
considering any application seeking pre-arrest bail, the High Court has to balance
the two interests: i.e. that the power is not so used as to convert the jurisdiction
into that under Section 438 of the Criminal Procedure Code, but that it is used
sparingly and such orders made in very exceptional cases where no prima facie
offence is made out as shown in the FIR, and further also that if such orders are
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not made in those classes of cases, the result would inevitably be a miscarriage of
justice or abuse of process of law. I consider such stringent terms, otherwise
contrary to the philosophy of bail, absolutely essential, because a liberal use of
the power to grant pre-arrest bail would defeat the intention of Parliament.
11. The Supreme Court in case of Shri Gurbaksh Singh Sibbia and
Others Vs. State of Punjab reported in (1980) 2 SCC 565 while dealing
with the law relating to grant of anticipatory bail observed as under:
19. A great deal has been said by the High Court on the fifth proposition
framed by it, according to which, inter alia, the power under Section 438 should
not be exercised if the investigating agency can make a reasonable claim that it
can secure incriminating material from information likely to be received from the
offender under Section 27 of the Evidence Act. According to the High Court, it is
the right and the duty of the police to investigate into offences brought to their
notice and therefore, courts should be careful not to exercise their powers in a
manner which is calculated to cause interference therewith. It is true that the
functions of the Judiciary and the police are in a sense complementary and not
overlapping. And, as observed by the Privy Council in King Emperor v. Khwaja
Nasir Ahmed :
"Just as it is essential that every one accused of a crime should have free
access to a court of justice so that he may be duly acquitted if found not
guilty of the offence with which he is charged, so it is of the utmost
importance that the judiciary should not interfere with the police in
matters which are within their province and into which the law imposes on
them the duty of inquiry. The functions of the Judiciary and the Police are
complementary, not overlapping, and the combination of the individual
liberty with a due observance of law and order is only to be obtained by
leaving each to exercise its own function...."
But, these remarks, may it be remembered, were made by the Privy Council while
rejecting the view of the Lahore High Court that it had inherent jurisdiction under
the old Section 561A, Criminal Procedure Code, to quash all proceedings taken
by the police in pursuance of two First Information Reports made to them. An
order quashing such proceedings puts an end to the proceedings with the
inevitable result that all investigation into the accusation comes to a halt.
Therefore, it was held that the Court cannot, in the exercise of its inherent
powers, virtually direct that the police shall not investigate into the charges
contained in the F.I.R. We are concerned here with a situation of an altogether
different kind. An order of anticipatory bail does not in any way, directly or
indirectly, take away from the police their right to investigate into charges made
or to be made against the person released on bail. In fact, two of the usual
conditions incorporated in a direction issued under Section 438 (1) are those
recommended in Sub-section (2) (i) and (ii) which require the applicant to co-
operate with the police and to assure that he shall not tamper with the witnesses
during and after the investigation. While granting relief under Section 438 (1),
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appropriate conditions can be imposed under Section 438 (2) so as to ensure an
uninterrupted investigation. One of such conditions can even be that in the event
of the police making out a case of a likely discovery under Section 27 of the
Evidence Act, the person released on bail shall be liable to be taken in police
custody for facilitating the discovery. Besides, if and when the occasion arises, it
may be possible for the prosecution to claim the benefit of Section 27 of the
Evidence Act in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle stated by this
Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not
in custody approaches a police officer investigating an offence and offers to give
information leading to the discovery of a fact, having a bearing on the charge
which may be made against him, he may appropriately be deemed to have
surrendered himself to the police. The broad foundation of this rule is stated to be
that Section 46 of the Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody: submission to the
custody by word or action by a person is sufficient. For similar reasons, we are
unable to agree that anticipatory bail should be refused if a legitimate case for the
remand of the offender to the police custody under Section 167 (2) of the Code is
made out by the investigating agency.
21. The High Court says in its fourth proposition that in addition to the
limitations mentioned in Section 437, the petitioner must make out a "special
case" for the exercise of the power to grant anticipatory bail. This, virtually,
reduces the salutary power conferred by Section 438 to a dead letter. In its
anxiety, otherwise just, to show that the power conferred by Section 438 is not
"unguided or uncanalised", the High Court has subjected that power to a restraint
which will have the effect of making the power utterly unguided. To say that the
applicant must make out a "special case" for the exercise of the power to grant
anticipatory bail is really to say nothing. The applicant has undoubtedly to make
out a case for the grant of anticipatory bail. But one cannot go further and say that
he must make out a "special case". We do not see why the provisions of Section
438 should be suspected as containing something volatile or incendiary, which
needs to be handled with the greatest care and caution imaginable. A wise
exercise of judicial power inevitably takes care of the evil consequences which
are likely to flow out of its intemperate use. Every kind of judicial discretion,
whatever may be the nature of the matter in regard to which it is required to be
exercised, has to be used with due care and caution. In fact, an awareness of the
context in which the discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is the hall mark of a prudent exercise of
judicial discretion. One ought not to make a bugbear of the power to grant
anticipatory bail.
12. The factual scenario of the case on hand, as reflected from the
material on case diary, is examined in the light of aforestated propositions of
law.
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13. The applicant is implicated on information given by co-accused in
police custody. The statement under Sec. 23(2) of Bhartiya Sakshya
Adhiniyam of co-accused Rahul S/o Biharilal Jaiswal was recorded on
04.02.2025. Despite receiving this information, no incriminating material
was seized by the Investigation Officer showing prima-facie complicity of
the applicant in the alleged transaction resulting in the offence punishable
u/Ss. 34(2) or 42 of the M.P. Excise Act except verification of the spot
where the liquor was allegedly delivered to Rahul. Thus, the material
available on the case diary, at present, does not reveal prima-facie
complicity of the applicant in the alleged offence. Sufficient time has
elapsed since the Investigation Officer was informed by co-accused with
regard to the applicant. Presently, at the most, the applicant is a suspect. If
further investigation makes out his complicity in the alleged offence, the
applicant may be taken into custody, however, in compliance with the
guidelines laid down in the case of Arnesh Kumar Vs. State of Bihar and
Satender Kumar Antil Vs. Central Bureau of investigation (supra). In view
of above discussion, this Court is of considered opinion that the interdict
contained under Section 59A of the M.P. Excise Act would not apply to
present case. The veracity of the prosecution will be considered on merit
after evidence.
14. As informed, applicant is aged 59 years. He is working as Manager at
Wine Shop and has a family to look after. Considering the age, profession
and status of the applicant, there appears to be no likelihood of fleeing from
justice or involving in any criminal activity. In absence of criminal
antecedents, considering the socio-economic status of the applicant, there
appears to be no likelihood of tampering with the evidence, influencing the
witness or interfering in the investigation by the applicant. The grant of
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anticipatory bail to the applicant will cause no prejudice to free, fair and full
investigation.
15. Considering his age and family status, the applicant may suffer
hardship and prejudice due to incarceration entailing social disrepute and
humiliation. Considering the overall circumstances of the case, but without
commenting on merits of the accusation, this Court is inclined to grant
anticipatory bail to the applicant. Thus, the application is allowed.
16. Accordingly, it is directed that in the event of arrest, applicant -
Manishankar shall be released on bail in connection with Crime No.
124/2025 registered at Police Station - Industrial Area District Dewas
(M.P.) for offence punishable under Section(s) 34(2) of M.P. Excise Act,
upon furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty
Thousand Only) with separate solvent surety of the like amount to the
satisfaction of the officer making arrest/Trial Court for compliance with the
following conditions:(For the convenience of understanding by accused and
surety, the conditions of bail are also reproduced in Hindi as under):-
1) Applicant shall make himself available for investigation as may be
directed by the Investigation Officer.
(2) Applicant shall not commit or get involved in any offence of similar
nature;
(3) Applicant 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 them/him/her from disclosing such facts to the Court or to the
police officer;
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(4) Applicant shall not directly or indirectly attempt to tamper with the
evidence or allure, pressurize or threaten the witness;
(5) During trial, the applicant shall ensure due compliance of provisions of
Section 309 of Cr.P.C/346 of the BNSS. regarding examination of
witnesses in attendance;
(6) If further investigation reveals complicity of applicant in the alleged
offence and prima facie offence, as alleged, is made out against him, he
may be taken into custody in compliance with the guidelines laid down in
the case of Arnesh Kumar Vs. State of Bihar and Satender Kumar Antil
Vs. Central Bureau of investigation (supra).
The Investigation Officer/trial Court shall get these conditions
reproduced on the personal bond by the accused and on surety bond by the
surety concerned. If any of them is unable to write, the scribe shall certify
that he had explained the conditions to the concerned accused or the surety.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
SEHAR Digitally signed by SEHAR HASEEN
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH INDORE,
ou=BENCH AT INDORE,
HASEE
2.5.4.20=900ec6fc757798eaeb3df7a3
2860bd3298415a4d1c2d91436213f2
568c8f27da, postalCode=452001,
st=Madhya Pradesh,
serialNumber=E7DBBA955B262C04B
8413251CE7FB6F0B7DBA610C57F15
N
59C08BF6C6F5DD40D4, cn=SEHAR
HASEEN
Date: 2025.06.18 17:51:47 +05'30'
