Madhya Pradesh High Court
Rahul vs The State Of Madhya Pradesh on 19 September, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 19 th OF SEPTEMBER, 2025
MISC. CRIMINAL CASE No. 41473 of 2025
RAHUL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Chandan Kumar Gera- Advocate through V.C. along with Shri Aditya
Choudhary - Advocate for the applicant.
Shri Amit Raval GA for the State.
ORDER
1. This second bail 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. 322/2025 registered at Police
Station- Nanakheda, Ujjain, District- Ujjain (M.P.) for offence punishable under
Section 34(2) of the M.P. Excise Act. The applicant is apprehending his arrest in
the matter.
2. Applicant's first anticipatory bail application was disposed of with the
direction that the Investigation Officer / trial Court shall ensure strict compliance
with the guidelines and directions laid down in cases of Arnesh Kumar and
Satender Kumar Antil (Supra), Siddharth vs. State of Uttar Pradesh & Another,
reported in (2022) 1 SCC 676 and Amanpreet Singh Vs. CBI 2022 (13) SCC 764
vide order dated 08/08/2025 passed in MCRC no. 31971/2025,
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
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merely on the basis of statement of co-accused in police custody, which is not
admissible in view of the law laid down in the case of Tofan Singh Vs State of
Tamil Nadu reported in (2021) 4 SCC 1 . The applicant co-operated in the
investigation in compliant with directions of this Court. He appeared before the
concerned police station on 26/08/2025. Later, on completion of investigation, the
final report was submitted. No incriminating material connecting the applicant
with the alleged offence was recovered during investigation. The applicant is
apprehending arrest in this matter for the reason of interdict contained under
section 59-A of the M.P. Excise Act. Learned counsel further submits that
applicant enjoys good character and social standing. The custodial interrogation of
the applicant is not needed in the matter. Jail incarceration on false accusation
would cause hardship to the applicant and the dependent family. 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. However, after going through the case
diary, he fairly states that no criminal antecedent is reported against the applicant
5. 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) ........ "
6. A Division Bench of the High Court of Madhya Pradesh, in case of
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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 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.
7. 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:
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"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 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.
8. 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
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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 cooperate
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), 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
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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.
9. 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.
10. The applicant is implicated on the information given by main accused,
who is child in conflict-with-law. No incriminating material connecting the
applicant with the alleged offence was seized during investigation showing
complicity of the applicant in the alleged transaction resulting in offence
punishable under section 34(2) of the M.P. Excise Act. Thus, the material
available on record does not reveal prima-facie complicity of the applicant in the
alleged offence. The investigation is complete. The applicant was informed about
filing of charge-sheet. The veracity of the prosecution will be considered on merit
after evidence.
11. As informed, applicant is aged 27 years. He is labourer by
profession. 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
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incarceration of applicant does not appear to be necessary for the purpose of
investigation. The grant of anticipatory bail to the applicant will not cause
prejudice to free, fair and full investigation. Considering his clean past, age, status
and profession, 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.
12. Accordingly, it is directed that in the event of arrest, applicant -
Rahul shall be released on bail in connection with Crime as mentioned in the first
paragraph of this order, 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/the Competent Court for
compliance with the following conditions: (For the convenience of understanding
by accused and surety, the conditions of bail are reproduced in Hindi as under):-
(1) Applicant shall remain present on every date of hearing as may be directed
by the concerned court;
(1) आवेदक संबंिधत यायालय के िनदशानुसार सुनवाई क येक ितिथ पर उप थत रहे गा ।
(2) Applicant shall not commit or get involved in any offence of similar nature;
(2) vkosnd leku izd`fr dk dksbZ vijk/k ugha djsxh ;k mlesa lfEefyr ugha gksxkA
(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;
(3) vkosnd izdj.k ds rF;ksa ls ifjfpr fdlh O;fDr dks izR;{k ;k vizR;{k :i ls izyksHku] /kedh
;k opu ugha nsxk] ftlls ,slk O;fDr ,sls rF;ksa dks U;k;ky; ;k iqfyl vf/kdkjh dks izdV djus
ls fuokfjr gksA
(4) Applicant shall not directly or indirectly attempt to tamper with the evidence
or allure, pressurize or threaten the witness;
(4) vkosnd izR;{k ;k vizR;{k :i ls lk{; ds lkFk NsMNkM djus dk ;k lk{kh ;k lkf{k;ksa dks
cgykus&Qqlykus] ncko Mkyus ;k /kedkus dk iz;kl ugha djsxkA
(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;
(5) fopkj.k ds nkSjku] mifLFkr xokgksa ls ijh{k.k ds laca/k esa vkosnd /kkjk 309 na-iz-la-@346
Hkkjrh; ukxfjd lqj{kk lafgrk ds izko/kkuksa dk mfpr vuqikyu lqfuf'pr djsxkA
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13. This order shall be effective till the end of trial. However, in case of
breach of any of the preconditions of bail, the Trial Court may consider on merit
cancellation of bail without any impediment from this order.
14.. 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/she had
explained the conditions to the concerned accused or the surety.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
amol
