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Allahabad High Court says CrPC Section 438 to be used only in exceptional cases

According to the FIR dated September 12, 2021, the applicant was working with the informant from the last about 20 years and since the year 2013-14, looking after the Concrete Plant.

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The Allahabad High Court has observed that the extraordinary power under Section 438 of the Code of Criminal Procedure is to be used as an exceptional case with due care and caution while hearing an application for anticipatory bail.

A single-judge bench of Justice Manish Kumar passed this order while hearing a Criminal Misc anticipatory bail application under Section 438 CrPC filed by Shailendra Rai.

The anticipatory bail application under Section 438 CrPC has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with Case under Section 419, 420, 406 IPC, Police Station Khanpur, District Ghazipur.

According to the FIR dated September 12, 2021, the applicant was working with the informant for 20 years and since the year 2013-14, looking after the concrete plant. On the request of the applicant, on July 15, 2019, an agreement was executed between the applicant and the informant that the plant may be given to him on rent @ Rs 3,25,000 per month but the informant has not received any rent and the applicant by using the name of the firm started taking money from the suppliers and depositing it in the name of his firm and the other irregularities committed to be admitted from the WhatsApp messages received from mobile of the wife of the applicant.

Additional Government Advocate on the basis of instructions received as also Nirvikalp Pandey, counsel for the informant, have opposed the prayer for grant of interim anticipatory bail and have submitted that the allegations/accusations against the applicant are specific.

It has also been submitted that the applicant has neither enclosed the description of WhatsApp conversations nor the agreement entered into between the informant and the applicant, whereas the agreement is not a part of the charge-sheet.

After considering the rival submissions of the respective parties and looking into the circumstances as well as annexures with the application for anticipatory bail, the Court found that nature and gravity of the accusations and the exact role of the accused has properly been comprehended. The extraordinary power under Section 438 CrPC is to be used as an exceptional case with due care and caution.

From the facts and reasons discussed above, the case of the applicant does not fall under the law settled in the cases of Gurubaksh Singh Sibbia & Ors. vs. State of Punjab reported in (1980) AIR 1632 and Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in MANU/SC/0949/2015, the nature and gravity of the accusation and the exact role of the applicant has properly been comprehended, the Court observed.

In view of above, the Court does not find any good reason to interfere and hence, the court rejected the anticipatory bail application.

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