TMI Blog2021 (10) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... legations 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.PC 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. The High court has committed an error in granting anticipatory bail to respondent No.2 accused ignoring the proceedings under Section 82 83 of Cr.PC. - Appeal allowed. - Criminal Appeal No. 1209 of 2021 - - - Dated:- 21-10-2021 - M.R. Shah And A.S. Bopanna, JJ. For the Appellant : Mr. Rituraj Biswas, AOR, Mr. Rituraj Choudhary, Adv., Ms. Sujaya Bardhan, Adv. For the Respondent : Mr. Devashish Bharuka, AOR, Ms. Sarvshree, Adv., Mr. Justine George, Adv., Mr. Manas Syal, Adv., Mr. Abhishek, AOR. JUDGMENT M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.08.2019 passed by the High Court of Judicature at Patna in Crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent appeal. 4. Shri Rituraj Biswas, learned Advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in allowing the anticipatory bail application. 4.1 It is submitted that considering the fact that the accused was avoiding the arrest and even did not co operate with investigating agency and even after the arrest warrants were issued, the proceedings under sections 82 83 of Cr.PC were initiated, the High Court ought not to allow the anticipatory bail application. 4.2 It is submitted that though the factum of initiation of proceedings under Section 82 83 of Cr.PC was pointed out, the High Court has simply ignored the same. 4.3 It is further submitted that even the High Court has not at all considered the seriousness of the offences alleged namely the offences under sections 406, 420 of IPC, which were in detail considered by the learned Trial Court while rejecting the anticipatory bail application. 4.4 It is submitted that the High Court has granted the anticipatory bail to respondent No.2 solely observing that the nature of accusation arising out of a business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the learned counsel appearing on behalf of the appellant original informant complainant as well as learned counsel appearing on behalf of the State and the learned counsel appearing on behalf of respondent no.2 accused. 7.1 It is required to be noted that after investigation a charge sheet has been filed against respondent no.2 accused for the offences punishable under sections 406, 420 of IPC also. Thus it has been found that there is a prima facie case against the accused. It has come on record that the arrest warrant was issued by the learned Magistrate as far as back on 19.12.2018 and thereafter proceedings under sections 82 83 of Cr.PC have been initiated pursuant to the order passed by the learned Chief Judicial Magistrate dated 10.01.2019. Only thereafter respondent No.2 moved an application before the learned Trial Court for anticipatory bail which came to be dismissed by the learned Additional Sessions Judge, Saran, by a reasoned order. The relevant observations made by the learned Additional Sessions Judge, Saran, while rejecting the anticipatory bail application are as under: Perused the record. The prosecution case as alleged in the typed applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation in the case is still going on. From perusal of the case record I find that the informant has alleged to have given a sum of Rs. 36,00,000/ to this petitioner in order to supply certain medicines which was neither supplied nor the amount was ever refunded. Admittedly, the said amount was given to the petitioner on an oral undertaking as there is nothing on record to substantiate the aforesaid averments, but, the fact remains that the petitioner in order to refund the said amount has issued a cheque of Rs.10,00,000/ bearing cheque no. 137763 dated 25.11.2017 which was deposed by the informant in the bank, but, the same was dishonored with record I further find that the petitioner is in the habit of borrowing money from different persons and then used to make default in payment inasmuch as by issuing cheques without sufficient balance in his account which transpires form paras 38 and 39 of the case diary. 7.2 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.PC have been initiated as far as back on 10.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest, without warrant the applicant on the basis of the accusation apprehended in such application. The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. 15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC 303] this Court considered the scope of Section 438 of the Code as under : (SCC pp. 311 12, para 16) 16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has reason to believe that he may be arrested in a nonbailable offence. Use of the expression reason to believe shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere fear is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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. Thus the High court has committed an error in granting anticipatory bail to respondent No.2 accused ignoring the proceedings under Section 82 83 of Cr.PC. 8. Even the observations made by the High Court while granting the anticipatory bail to respondent No.2 accused that the nature of accusation is arising out of a business transaction and therefore the accused is entitled to the anticipatory bail is concerned, the same cannot be accepted. Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction. At this stage, it is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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