TMI Blog2023 (1) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... Article, the Apex Court stated that We are conscious of the fact that the legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. Coming back to the present case, it is observed that conduct of the petitioner shows that he has deliberately disobeyed the order of the Court and intentionally, willfully and purposely avoided his appearance before the trial Court. The reason assigned by him for his non-appearance lacks bona fide. His conduct speaks loudly and clearly that he is avoiding his presence and is not cooperating with the trial. He is trying to make the straight path crooked to achieve his object to somehow get bail under the cover of a petition under Section 482 of CrPC by avoiding the jurisdictional Bench which refused to accede to his similar prayer. Such practices malign the noble image of the great institution and spread an impression that by twisting and turning the law, a desired lousy and atrocious result can be obtained. It is further observed that even lenient view taken by the trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e current roster, the bail matters pertains to Single Bench and the Single Bench dealing with the bail matters has already dismissed his anticipatory bail application vide order dated 10.11.2022 passed in MCrC No.34361 of 2022. 5. The petitioner is being prosecuted for the offence punishable under Section 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act, 1988 (as amended) in Case No.(SC) CBI/2/2022 pending in the Court of Special Judge (for CBI cases), Bhopal; on the ground that while working as a public servant in the capacity of AG-1, Divisional Office, FCI Bhopal, during the check period from 02.12.2016 to 29.05.2021, he amassed property 900% disproportionate to his known sources of income. An FIR being RC No.0082021A006 was registered at P.S. CBI, Bhopal. Upon completion of investigation, charge-sheet has been filed against him on 22.11.2021. 6. Facts in chronological order would reveal that Bhopal Branch of CBI received complaint from Shivdayal Dwivedi, Field Manager of M/s Sandeep Kapoor Securities on 27.05.2021 regarding demand of illegal gratification by officials of Food Corporation of India, Divisional Office, Bhopal to clear his pending bills, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The ld. trial Court further observed that after service of summons, instead of appearing before the Court, the petitioner chose to file an application for anticipatory bail which was later dismissed. 11. Facts further show that after dismissal of his prayer for anticipatory bail by the trial Court, the petitioner approached this Court by filing a petition/application under Section 438 of CrPC as MCrC No.34361 of 2022 and during its pendency, he also filed present petition under Section 482 of CrPC with a similar prayer of seeking bail suppressing the fact that his petition for seeking anticipatory bail is pending before the Single Bench of this Court. Later, during pendency of the present petition, he withdrew his anticipatory bail petition; which was dismissed accordingly. 12. Thus, since more than a year even after having full knowledge, the petitioner is successfully avoiding his appearance before the trial Court and even after denial of his prayer to grant him anticipatory bail; he is still out of reach of the Court, which has halted the trial for no justifiable reason. 13. Through this petition, the petitioner has asked for two substantial reliefs; firstly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or before 23-8-2006 and if, on their appearance in the learned court below, the petitioners apply for bail they shall be allowed to go on bail of Rs 10,000 each with two local sureties, each of the like amount, subject to the satisfaction of the learned court below. This direction for bail is further subject to the condition that the petitioners shall keep appearing in the learned court below as may hereafter be directed by it. It is clear that the High Court has not considered the merits of the case. It completely overlooked the fact that Respondents 1 to 9 have filed a petition under Section 482 of the Code. Even if the High Court found that there was some lapse on the part of the learned SDJM in dealing with the matter, as noted by the High Court that could not have been a ground for directing release of the respondents on bail, that too in a petition under Section 482 of the Code. It was not even a case under Section 438. Even if it was so, the impugned directions could not have been given for releasing Respondents 1 to 9 in the manner done. The jurisdiction under Section 482 of the Code cannot be extended to grant of bail in the manner done. There was not even considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regular bail application appears to have been granted to Respondent 1 in view of the interim protection given by the High Court to the accused by the impugned order. 21. Years back in Hamida v. Rashid, (2008) 1 SCC 474, Hon'ble the Supreme Court denounced practice of granting bail in exercise of inherent powers. Expressing its agony and anguish, the Court observed that 'in spite of repeated pronouncements of this Court that inherent power under Section 482 CrPC should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done, the High Court entertained the petition under Section 482 CrPC, the ultimate result whereof was that the order of bail granted in favour of the accused for an offence under Sections 324, 352 and 506 IPC enured to their benefit even after the offence had been converted into one under Section 304 IPC and also subsequently when charge had been framed against them under Section 302 read with Section 34 IPC. The accused did not remain in custody even for a single day nor did they approach the Court of Chief Judicial Magistrate or Sessions Judge for being granted bail under Section 304 or 302 IPC, yet the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 CrPC in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the respondentsaccused had been passed by any court nor was there any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition under Section 482 CrPC and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail under Section 439 CrP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India, MCrC No.16142/2022, Ravindar Kumar Sharma v. Union of India, MCrC No.32074/2022 and Smt. Heera Jain v. Union of India, MCrC No.6621/2022 stating that the petitioner has cooperated with the investigation, therefore, arrest warrant should not have been issued against him and he would have been granted bail but these cases deal with different fact situation and are of no avail to the petitioner. 24. None of the cases cited viz. Dataram Singh, Siddharth, Aman Preet Singh and Satender Kumar Antil (supra) deals with the issue in question in this case. In Dataram Singh s case (supra), considering the prevailing facts, bail was allowed in a case of cheque dishonour. Siddharth and Amanpreet cases (supra) deal with the situation when magistrate insisted upon production of the accused in custody at the time of filing of the charge-sheet as a condition sine qua non to accept the same. They only interpret word custody occurred in Section 170 CrPC and state that it is not mandatory for the police to arrest the accused at the time of filing of the chargesheet and anticipatory bail cannot be denied only on the ground that at the time of filing charge-sheet, the arrest of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail to the applicant. Relevant para 15 16 of the judgment reads thus: 15. Be that as it may, even assuming it a case where Respondent No. 1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail. 16. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. [See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21, Prahlad Singh Bhati v. NCT of Delhi (2001) 4 SCC 280 and Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598. 27. Reference may also be made to para 112 of Siddharam Satlingappa Mhetre v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and there is no need for custodial interrogation of the petitioners or that the petitioners held a high office, does not ipso facto entitle them to anticipatory bail. 30. Citing several earlier judgments in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, the Supreme Court observed that power under Section 438 of CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind. Repelling the submission that anticipatory bail is a facet of Article 21 of the Constitution of India and its denial would amount to denial of the right conferred upon under the said Article, the Apex Court stated that We are conscious of the fact that the legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the Court must also keep in view that a criminal offence is not just an offence against an individual; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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