Uttarakhand High Court
Hazi Mohd. Rafique vs State Of Uttarakhand on 21 September, 2023
IN THE HIGH COURT OF
UTTARAKHAND
AT NAINITAL
SRI JUSTICE RAKESH THAPLIYAL, J.
SEPTEMBER 21, 2023
Anticipatory Bail Application No. 836 OF 2023
Hazi Mohd. Rafique. .........Applicant.
Versus
State of Uttarakhand. .......Respondent.
Counsel for the applicant: Mr. Ghanshyam Joshi, learned
counsel for the applicant.
Counsel for the respondent: Mr. V.S. Pal, learned AGA for
the State of Uttarakhand.
Upon hearing the learned Counsel, the Court made the following
Order: (per Sri Rakesh Thapliyal, J.)
1. This is an application under Section 438 of the Code of
Criminal Procedure seeking anticipatory bail in Session Trial
No.433 of 2022 in respect of the offence cognizable under
Section 135 of the Electricity Act, 2003, pursuant to the FIR
No.70 of 2020, dated 02.03.2020, registered at P.S. - Jaspur,
District - Udham Singh Nagar.
2. The applicant submits that he is aged about 72 years
old. The Non Bailable Warrant has been issued by the Court
Below on 20.04.2023, but he has not been declared as an
absconder.
3. Apart from this, the learned counsel for the applicant
further submits that the entire action, which has been taken
by the Electricity Department, is totally illegal, and arbitrary
and before inspecting the meter of the applicant's Premises,
they should follow the procedure, as mentioned in the
Electricity Act, 2003, but unfortunately that procedure has
not been followed and arbitrarily the meter was inspected
without informing the applicant and in absence of any
independent witness.
4. The State Counsel has raised preliminary objection that
since in this case, the Non Bailable Warrant has been issued
against the applicant, and, therefore, the applicant is not
entitled to get anticipatory bail. In reference to this, the
counsel for the applicant placed reliance upon the judgment
rendered by the Apex Court in the case of Lavesh vs. State
(NCT of Delhi) (2012) 8 SCC 730.
5. In the case of Lavesh (Supra), the Apex Court has
observed that if any person has been declared absconder, by
issuing proclamation under Section 82 Cr.P.C., normally his
anticipatory bail application should not be entertained.
6. Here, in the present case, the learned counsel for the
applicant submits that the applicant has not been declared as
absconder and no proclamation has been issued under
Section 82 Cr.P.C., therefore, the preliminary objection, as
raised by the State Counsel, is not acceptable.
7. All these aspects are required to be considered after
inviting the objection(s) from the State.
8. Let the objection(s) be filed by the State within a period
of two weeks from today.
9. List this matter on 06.10.2023.
10. Having considered the submissions of the learned
counsel for the parties and without expressing any opinion
on the merit of this case, this Court directs that in the event
of arrest of the present applicant, he shall be released on
interim anticipatory bail on furnishing a personal bond by
him to the satisfaction of the arresting officer subject to the
following conditions:
(i) The applicant shall appear before the trial court
on each date fixed, unless personal presence is
exempted.
(ii) The 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 him from disclosing such facts to the
court or to any police officer or tamper with the
evidence.
(iii) He shall cooperate with the trial. He shall not
leave the country without permission of the
concerned court. The applicant shall not
pressurize/intimidate the prosecution witness.
(iv) If the applicant will not cooperate with the trial,
the State Counsel is free to move an application
for cancelling of this interim anticipatory bail.
(v) He shall deposit the passport, if any, with the
trial Court within a week. The passport may only
be returned by the order of the Court concerned.
In case the applicant does not have the passport,
he shall give an undertaking in respect of the
aforesaid conditions before the Court concerned.
__________________
RAKESH THAPLIYAL, J.
R.Bisht
