Sunday, November 27, 2022

Allahabad High Court grants anticipatory bail to man for not misusing regular bail in same case

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The Allahabad High Court has allowed the anticipatory bail application of an accused, while observing that the expression ‘bail,’ whether it was regular or anticipatory under Sections 437 to 439 of the Code, stated that a person accused of, or suspected of, the commissioning of offences related to the same crime, may be ‘released on bail’.

A Single Bench of Justice Krishan Pahal passed this order, while hearing a Criminal Misc anticipatory bail application of one Shahzad.

The anticipatory bail application has been filed on behalf of the applicant in case under Section 3/7 of The Essential Commodities Act, Police Station Sarsawa, District Saharanpur with a prayer to enlarge him on anticipatory bail.

Senior Counsel for the applicant has stated that the applicant was enlarged on bail by the Sessions Judge, Saharanpur vide order dated 28.02.2022, under Sections 379, 427 IPC, Sections 15, 16 of The Petroleum and Minerals Pipeline (Acquisition of Users in Land) Act, Section 3/4 of the Exclusive Substances Act and 3/4 of The Prevention of Damages to Public Property Act.

Senior Counsel has further stated that after investigation, a final report has been submitted in the added Sections 3/7 of Essential Commodities Act. The said sections have been added just to frustrate the case of the applicant, so that he may be sent behind the bars.

Senior Counsel also stated that once the applicant has been admitted to bail and there is nothing on record to suggest that he has misused it or he has committed any other offence, then he may be enlarged on bail under the added sections under the provisions of 438 CrPC. 

Counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail.

Senior Counsel has placed much reliance on the judgments of the Apex Court passed in case of Bhadresh Bipinbhai Sheth vs State of Gujarat & Another reported in 2016 (1) SCC (Cri) 240 and Manoj Suresh Jadhav & Ors vs The State of Maharashtra, reported in 2018 SCC OnLine SC 3428, wherein the applicant therein was enlarged on anticipatory bail in the added sections under Section 438 CrPC after being enlarged on regular bail under Section 439 CrPC.

He further stated that the applicant does not have any criminal antecedents to his credit.

Per contra, the prayer for anticipatory bail has been vehemently opposed by the AGA. However, he could not dispute the said facts advanced by the Senior Counsel for the applicant.

The Court said it was true that the applicant was enlarged on bail in the said FIR and he has not misused it during investigation and no apprehension of tampering with evidence has been raised by the AGA. Sending the applicant behind bars again in the added sections would be of no fruitful use.

“The expression ‘bail’ whether it is a regular bail or an anticipatory bail from Sections 437 to 439 of the Code states that a person accused of, or suspected of, commissioning offences of the type referred therein may be ‘released on bail’.

The only difference between Sections 437, 438 and 439 CrPC is that an order of anticipatory bail under Section 438 CrPC insulates a person arrested from custody, while an order of bail under Section 437 or 439 CrPC gets him released from custody.

Under all the three provisions, Sections 437 to 439 CrPC, the person is set at liberty on security being taken for his appearance on a bail and a place.

On due consideration to the arguments advanced by the counsel for the applicant as well as A.G.A and considering the nature of accusations and antecedents of the applicant and the case law produced by the Senior Counsel, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of “Sushila Agrawal vs State (NCT of Delhi), (2020) 5 SCC 1”.

The future contingencies regarding the anticipatory bail being granted to the applicant shall also be taken care of as per the aforesaid judgement of the Apex Court, the Court observed, while allowing the anticipatory bail application.

The Court ordered, “Let the accused-applicant- Shahzad be released forthwith in the aforesaid case crime (supra) on anticipatory bail on furnishing a personal bond of Rs 50,000 and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

1. that the applicant shall make himself available for interrogation by a police officer as and when required;

2. that 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;

3. that the applicant shall not leave India without the previous permission of the court;

4. that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

5. that the applicant shall not pressurise/ intimidate the prosecution witness;

6. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

7. that in case of breach of any of the above conditions, the court below shall have the liberty to cancel the bail.”

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