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TMI Blog2021 (10) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... ode, 1860. A warrant of arrest came to be issued by learned Chief Judicial Magistrate, Saran, Chapra on 19.12.2018. It appears that thereafter respondent No.2 - accused is absconding and concealing himself to avoid service of warrant of arrest. Thereafter learned Chief Judicial Magistrate issued a proclamation against respondent No.2 under section 82 Cr.PC. Only thereafter and issuance of proclamation under section 82 Cr.PC, respondent No.2 - accused filed anticipatory bail application before learned Trial Court. By a detailed order dated 29.01.2019 the learned Trial Court dismissed the said anticipatory bail application and rejected the prayer for anticipatory bail on merits as well as on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail. That thereafter the accused approached the High Court by way of present application and despite the fact that it was specifically pointed to the High Court that since the process of proclamation under section 82 & 83 Cr.PC have been issued, the accused should not be allowed the privilege of anticipatory bail, ignoring the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cr.PC have been initiated, is not entitled to the benefit of anticipatory bail. 4.6 It is further submitted that even subsequently a chargesheet has been filed against the accused - respondent No.2 for the offences punishable under sections 406 and 420 of IPC. 4.7 Making the above submissions and relying upon above decision of this court, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No.2 - accused. 5. Shri Devashish Bharuka, learned Advocate appearing on behalf of the State has supported the appellant and has submitted that on being found a prima facie case against respondent No.2 - accused, a chargesheet has been filed against the accused under sections 406 and 420 of IPC also. 6. Shri Abhishek, learned Advocate appearing on behalf of respondent No.2 has vehemently submitted that in the facts and circumstances of the case, the High Court has not committed any error in granting anticipatory bail to respondent No.2 - accused. 6.1 It is submitted that the High Court has rightly observed that the nature of accusation is arising out of a business tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded his Rs. 36,00,000/ then, the petitioner gave a cheque of Rs. 10,00,000/ bearing cheque no. 137763 dated 25.11.2017 which was in the Canara Bank of the petitioner which was dishonored by the bank with a note "insufficient fund". Thereafter the informant demanded his money in case. On 20.06.18 but, the brothers of the petitioner misbehaved with the informant. The brothers of the petitioner also threatened not to contact the police or the consequences will be worst: On this informant Chapra Town PS No. 453/2018 was registered and investigation proceeded. Perused the case diary from which it transpires that in para 4 there is a restatement of the informant in which he has supported the prosecution case. In para 8, 9, 10, and 11 witness Amit Kumar Sinha, Awadhesh Kumar, Dhannu Kumar and Uday Shankar Prasad has been examined under section 161 of Cr.PC in which they have supported the prosecution case. In para 16 there is supervision note of SDPO, Sadar in which prosecution case. In found true under sections 420, 406 of IPC and 138 of NI Act. In para 23 processes under sections 82 and 83 of Cr.PC have been issued against the petitioner in para 38 there is a statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 8283 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. 7.3 In the case of State of Madhya Pradesh vs. 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.PC, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under: "14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under: "438. Direction for grant of bail to person apprehending arrest. -- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely- (i) the nature and gravity of the accusation; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail 'whenever arrested for whichever offence whatsoever'. Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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