Aamir Raza and Another v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11323 of 2023 Applicant :- Aamir Raza And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sudarshan Singh,Anurag Pandey Counsel for Opposite Party :- G.A.,Ram Tiwari Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

¶2This application has been moved on behalf of the applicants 1. Aamir Raza and 2. Mohd. Raza are seeking anticipatory bail in Misc. Case No. 427 of 2022, Complaint Case No. 58 of 2023, under Sections 147, 148, 323, 504, 506, 376-D, 511 IPC, Police Station-Baniather, District-Sambhal.

¶3It has been submitted by the learned counsel for the applicants that applicants are innocent and they have apprehension of their arrest in the above-mentioned case, whereas there is no credible evidence against them. Allegations levelled against the applicants are false. The investigation of the case has been completed and charge-sheet has been filed and cognizance has been taken by the Court concerned. Process under Sections 82 and 83 CrPC have also been issued against the applicants. It has been submitted that in case applicants are granted anticipatory bail, they will not misuse the liberty of bail and would obey all conditions of bail.

¶4I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.

¶5From the perusal of the record it reflects that the anticipatory bail application moved by the applicant before the Sessions Court concerned was rejected after hearing on 21.9.2023. Process under section 82 Cr.P.C. had already been issued against the applicants. Learned A.G.A. has submitted that as per the case diary, process under section 82 Cr.P.C. was issued against the applicants on

7.7.2023 which means that when the application for anticipatory bail was moved by the applicant before the Sessions Court, he was already a proclaimed offender. The present anticipatory bail application has been moved on 7.10.2023 before this Court. In this matter after completion of investigation final report was submitted and against the said report a protest petition was filed which was allowed by the court concerned rejecting the final report and it summoned the accused applicants to face the trial for the offence under Sections 147, 148, 323, 504, 506, 376D/ 511 I.P.C. vide order dated 2.6.2022. It also appears that one application as Cr. Misc. 482 Cr.P.C. No. 32540 of 2022 was moved by the applicant, which is pending before this Court but no protection order was granted therein. It reveals that during investigation the applicants did not cooperate with the Investigating Officer and this fact finds support from the record.

¶6The conduct of the applicant falls within the ambit of the law promulgated by Hon'ble Apex Court in Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine Supreme Court 955. In the facts of the case, charge-sheet was filed under Sections 406, 420 IPC against the accused and thus it was explicit that a prima facie case against the accused was found. From the record, it reveals that the arrest warrant was issued by the Magistrate against the accused and thereafter proceedings under Sections 82, 83 Cr.P.C. had been initiated pursuant to the order passed by the Magistrate. Only thereafter the accused moved an application before the trial court for anticipatory bail, which was rejected by the Sessions Court. However, subsequently anticipatory bail was granted to the aforesaid accused by the High Court and when the matter came before the Hon'ble Apex Court, it was observed like this- "19. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that respondent No. 2 - accused is absconding and even the proceedings under sections 82-83 of Cr. P.C. have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to respondent No. 2 - accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under sections 82-83 of Cr. P.C. by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.

¶20In the case of State of Madhya Pradesh v. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr. P.C., he is not entitled to relief of anticipatory bail."

¶7The Hon'ble Apex Court in Lavesh Vs. State (NCT of Delhi)

(2012) 8 SCC 730 has held that "Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."

¶8Further, the judgment passed in Lavesh (supra) was referred by the Hon'ble Apex Court in State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 Supreme Court Cases 171 and referring to paragraph 12 of the judgment of Lavesh (supra), in paragraph 16 of the said judgment, it was observed, relevant portion of which is as

under

:

"16.........It is clear from the above decision that if anyone is declared as an absconder / proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."

¶9Hence, from the aforesaid case laws it is evident that as per normal rule, anticipatory bail cannot be granted to an accused who is absconding or concealing himself in order to avoid execution of the process of the Court and has been declared as proclaimed offender. Further, in view of the recent pronouncement of the Hon'ble Apex Court in State of Haryana vs. Dharamraj, 2023 SCC Online SC 1085, decided on 29.8.2023, wherein the legal position regarding maintainability of an application for grant of anticipatory bail to a proclaimed offender has been elucidated, the present application is not maintainable.

¶10In view of that, I deem it not a fit case to grant anticipatory bail to the present applicants. Such a person, who does not cooperate with the investigation at all, is not entitled to get any relief from this Court by way of anticipatory bail.

¶11The anticipatory bail application is, accordingly, rejected. Order Date :- 29.11.2023 Fhd High Court of Judicature at Allahabad High Court of Judicature at Allahabad