Gujarat High Court
Odedra Pratap Muru vs State Of Gujarat on 4 August, 2025
NEUTRAL CITATION
R/CR.MA/11563/2025 ORDER DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11563 of 2025
(FOR ANTICIPATORY BAIL)
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ODEDRA PRATAP MURU
Versus
STATE OF GUJARAT
=======================================================
Appearance:
MS TANAVEER K LOLADIA(9994) for the Applicant(s) No. 1
MS JYOTI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 04/08/2025
ORAL ORDER
1. By filing instant applications under Section 482 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (for
short “BNSS”), the applicants have prayed for
anticipatory bail in the event of arrest in
connection with the FIR being C.R. No. I-3 of 2017
registered with ATS Crime Police Station for the
alleged offences as mentioned in the FIR.
2. Heard learned advocate, Ms. Tanaveer Loladia for the
applicant and learned APP Ms. Jyoti Bhatt for the
respondent – State of Gujarat.
3. Learned advocate, Ms. Loladia has referred to FIR
and submitted that the applicant is falsely involved
in the commission of crime. She submitted that in
fact, in the said FIR, the wife of the applicant was
shown witness and at that relevant point of time,
the applicant was stationed at UK and he was not
available in India, therefore, there is no question
of committing any offence as alleged, which clearly
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goes on to show that the applicant is wrongly
arraigned as accused in the present FIR. She
submitted that after registration of the FIR, the
investigation was put into motion and on conclusion
of it, the chargesheet qua accused no.17 has been
submitted before the court concerned, wherein the
applicant is shown as absconding accused along with
other accused persons. She, however, submitted that
from the chargesheet papers filed qua other arrested
accused persons, nothing is fruitful found against
the applicant, therefore, the applicant may be
granted anticipatory bail.
4. Learned advocate submitted that in fact, the against
the applicant, in the year 2014, an FIR being C.R.
No.I-119/2014 has been registered with Kamalabaug
Police Station, Porbandar, however in connection
with the said FIR, the applicant has already been
granted bail by this Hon’ble Court. She submitted
that in fact, there is no direct or indirect
involvement of the applicant in the present
commission of crime and there is no material
available on record, which connect the applicant
with the commission of crime and in fact, the
applicant has not received any monetary gain from
the said transaction. She submitted that the
applicant is arraigned as accused in the present
offence only on the basis of one mobile number
alleging that the said mobile number is being used
by the applicant. She, however, submitted that in
fact, there are other accused persons, who are
stationed at UK and are still absconding, they might
have used the said mobile number but only on the
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ground of assumption and presumption, the applicant
is arraigned as accused and is shown absconding
accused while filing chargesheet against other
accused persons. She submitted that considering the
allegations leveled against the applicant, custodial
interrogation at this stage is not necessary and he
will keep himself available during the course of
investigation, trial also and will not flee from
justice. She on instructions submitted that he is
ready and willing to abide by all the conditions
including imposition of conditions while releasing
the applicant on anticipatory bail. It is, therefore
urged that considering the above facts, the
applicants may be granted anticipatory bail.
5. Learned Additional Public Prosecutor appearing on
behalf of the respondent – State has opposed grant
of anticipatory bail looking to the nature and
gravity of the offence. He referred to the contents
of the FIR and submitted that specific name and role
is attributed to the present applicant in the body
of FIR, which clearly goes on to show the
involvement of the applicant. He submitted that
after registration of the FIR, the investigation was
commenced and during the course of investigation,
other accused persons have been arrested and,
thereafter, they are being chargesheeted. He
submitted that yet the applicant and other accused
persons, who are stationed at UK, are still
absconding and evading their arrest. He submitted
that as stated above, the chargesheet has been filed
and if the Hon’ble Court would make cursory glance
upon those set of documents, in that event, it is
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found out the direct involvement of the applicant in
the commission of crime in connivance with other
accused persons.
6. Learned APP has drawn attention towards the order
dated 04.12.2015 passed by this Hon’ble Court in
Criminal Misc. Application No.23078/2015, whereby
the applicant has been granted regular bail in
connection with the offence registered the year
2014. He submitted that in fact, in connection with
the said offence, the statements of the applicant
have been recorded, copies of which are provided
during the course of hearing. He submitted that if
the Hon’ble Court would make cursory glance upon the
said statements, in that event, it is found out that
same modus operandi has been adopted by the
applicant in connivance with other accused to
execute the crime. He submitted that while passing
said order, one of the conditions imposed upon the
applicant was to surrender his passport, however, he
has not complied with the said condition and on the
contrary, he fled away from India. He submitted that
in fact, at the time of commission of crime, the
applicant was very much available in India and the
accused have arranged meeting as to how the crime is
to be executed and the said fact is supported by the
documents collected during the course of
investigation. He submitted that in fact, after
registration of the offence, the statements of the
co-accused, who have been apprehended by the police,
have been recorded, which clearly goes on to show
the presence and the involvement of the applicant in
the commission of crime. He submitted that in fact,
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to secure the presence of the applicant in
connection with the offence of the year 2014,
warrant has been issued upon the applicant by the
concerned court. It is, therefore, urged that the
present applications may be rejected as there is
prima facie case made out against the applicants.
7. Having heard the learned advocates appearing for the
parties and perusing the investigation papers, it is
equally incumbent upon the Court to exercise its
discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a
plethora of decisions of the Hon’ble Apex 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) the
nature and gravity of the accusation; (ii) the
antecedents of the applicants including the fact as
to whether he has previously undergone imprisonment
on conviction by a Court in respect of any
cognizable offence; (iii) the possibility of the
applicants to flee from justice; and (iv) where the
accusation has been made with the object of injuring
or humiliating the applicants by having him so
arrested. Though at the stage of granting bail an
elaborate examination of evidence and detailed
reasons touching the merit of the case, which may
prejudice the accused, should be avoided.
8. It is required to be noted that normal procedure
prescribed for curtailing the right to life &
liberty, is that the investigating officer can
arrest the accused even without warrant. No doubt
this Court has extraordinary power to protect an
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innocent person. However, this power has to be
exercised by the Courts with due circumspection.
9. It is well settled that an application preferred for
anticipatory bail is an exceptional remedy to be
granted in exception cases. The parameters and
considerations governing the grant of anticipatory
bail have been explained by the Hon’ble Supreme
Court in number of cases. At this stage, I would
like to rely upon the law laid down by the Hon’ble
Supreme Court in the case of (i) State Rep. by the
CBI V/s Anil Sharma reported in 1997 (7) SCC 187,
(ii) Adri Dharan Das V/s State of W.B. reported in
2005 (4) SCC 303 (iii) P. Chidambaram V/s
Directorate of Enforcement reported in AIR 2019 SC
4198, wherein the Hon’ble Supreme Court has held
held as follows:
“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 rather the larger societal
interest is at stake. Therefore, a delicate
balance is required to be established between
the two rights – safeguarding the personal
liberty of an individual and the societal
interest.
Ordinarily, arrest is a part of
procedure of the investigation to secure not
only the presence of the accused but several
other purposes. There may be circumstances in
which the accused may provide information
leading to discovery of material facts and
relevant information. Grant of anticipatoryPage 6 of 22
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bail may hamper the investigation. It may
frustrate the investigating agency in
interrogating the accused and in collecting
the useful information and also materials
which might have been concealed. Success in
such interrogation would elude if the accused
knows that he is protected by the order of
the court. Grant of anticipatory bail,
particularly in economic offences would
definitely hamper the effective
investigation. Pre-arrest bail is to strike a
balance between the individual’s right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which may
lead to recovery of relevant information. In
this view, it cannot be said that refusal to
grant anticipatory bail would amount to
denial of the rights conferred upon the
appellant/applicant under Article 21 of the
Constitution of India.
Consequently, power under Section 438
CrPC being an extraordinary remedy, has to be
exercised sparingly; more so, in cases of
economic offences. Economic offences stand as
a different class as they affect the economic
fabric of the society. 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 as to the
nature and gravity of the accusation;
possibility of the applicant fleeing justice
and other factors to decide whether it is a
fit case for grant of anticipatory bail.
Grant of anticipatory bail to some extent
interferes in the sphere of investigation of
an offence and hence, the court must be
circumspect while exercising such power for
grant of anticipatory bail. Section 438 CrPC
is to be invoked only in exceptional cases
where the case alleged is frivolous or
groundless. Anticipatory bail is to be
granted as a matter of rule and it has to be
granted only when the court is convinced thatPage 7 of 22
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exceptional circumstances exist to resort to
that extraordinary remedy”.
Having regard to nature of allegations
and stage of investigations, held
investigating agency must be given sufficient
freedom in process of investigation.
Appellant not entitled to anticipatory bail
as the same would hamper the investigation”.
10. In case of Pratibha Manchanda and another Vs. State
of Haryana and another reported in (2023) 8 SCC 181,
the Hon’ble Apex Court in Paragraph No.21, observed
as under:-
“21. The relief of anticipatory bail is aimed at
safeguarding individual rights. While it
serves as a crucial tool to prevent the
misuse of the power of arrest and protects
innocent individuals from harassment, it also
presents challenges in maintaining a delicate
balance between individual rights and the
interests of justice. The tight rope we must
walk lies in striking a balance between
safeguarding individual rights and protecting
public interest. While the right to liberty
and presumption of innocence are vital, the
court must also consider the gravity of the
offence, the impact on society, and the need
for a fair and free investigation. The
court’s discretion in weighing these
interests in the facts and circumstances of
each individual case becomes crucial to
ensure a just outcome.”
11. At this stage, it is required to be noted that as
this application has been preferred under the
provisions of Section 482 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 for grant of anticipatory
bail, I court would like to refer the decision of
the Hon’ble Supreme Court in the case of Siddharam
Satlingappa Mhetre Vs. State of Maharashtra & Ors.,,
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reported in (2011) 1 SCC 694, more particularly
Paragraph Nos.14 & 112, which read as under :-
“14. It is clear from the Statement of Objects and
Reasons that the purpose of incorporating
Section 438 in the Cr.P.C. was to recognize
the importance of personal liberty and
freedom in a free and democratic country.
When we carefully analyze this section, the
wisdom of the legislature becomes quite
evident and clear that the legislature was
keen to ensure respect for the personal
liberty and also pressed in service the age-
old principle that an individual is presumed
to be innocent till he is found guilty by the
court.
112. The following factors and parameters can be
taken into consideration while dealing with
the anticipatory bail: The nature and gravity
of the accusation and the exact role of the
accused must be properly comprehended before
arrest is made; the antecedents of the
applicant including the fact as to whether
the accused has previously undergone
imprisonment on conviction by a Court in
respect of any cognizable offence; The
possibility of the applicant to flee from
justice; The possibility of the accused’s
likelihood to repeat similar or the other
offences. Whereas the accusation have been
made only with the object to injuring or
humiliating the applicant by arresting him or
her. Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people. The
courts must evaluate the entire available
material against the accused very carefully.
The court must also clearly comprehend the
exact role of the accused in the case.”
12. Now coming back to the facts of the case, it is
found out that an FIR has been lodged in the year
2017, which specific name of the applicant is
mentioned at Sr. No.5, alleging inter alia that the
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accused have in connivance with each other have
prepared bogus Visa of Indonesia in the name of
victims and asked them to go there as all
arrangements have been made like air tickets, hotel
etc. but no such arrangement was made and on the
contrary, it was also found out that the Visa is
bogus and thus after having realized that the
accused have cheated them, the aforesaid FIR has
been lodged narrating all facts of the case
including the role played by each accused at the
time of commission of crime.
13. It is found out from the record that after
registration of the FIR, the investigation was put
into motion and, thereafter during the course of
investigation, some accused have been arrested and
against them, the chargesheet has been filed and so
far as the applicant and other accused persons, they
are shown absconding accused in the said chargesheet
and till date, they are evading their arrest at the
hands of the concerned Investigating Officer. I have
also considered the statements of the applicant
recorded in connection with the offence of the year
2014 as well as the statements of the co-accused
recorded in connection with the present FIR and
found that same modus operandi has been adopted by
the accused in connivance with each other just to
dupe the person and thereby they have collected huge
amount from them. It is also found out from the
statements of the co-accused that at the time of
commission of crime, the applicant was very much
available in India and he had attended the meeting
with other accused persons.
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14. At this stage, it is required to be noted that the
applicant is having antecedent of the year 2014 and
in connection with the same, the applicant was
arrested and, thereafter, released on bail by this
Hon’ble Court on certain terms and conditions and as
per one of the conditions of the said bail order,
the applicant has to surrender his passport before
the court concerned but it seems that instead of
surrendering his passport with the court concerned,
he fled away at UK with the help of it. Not only
that, despite having there at UK, he has indulged
into another offence i.e. the present offence and
his presence and the role is clearly spelt out from
the investigation papers, therefore, it cannot be
said that the applicant was not available at the
time of incident and he is not involved therein but
on the contrary, records suggest his active
participation in the commission of crime.
15. One of the contentions is raised by learned APP
with regard to issuance of warrant under Section
70 of the CrPC by the court concerned to secure
his presence in connection with the offence of the
year 2014 but despite the issuance of the said
warrant, the applicant is enjoying at UK instead
of appearing in trial. At this stage, I would like
to place reliance upon the decision of the Hon’ble
Supreme Court in case of Srikant Upadhyay Vs.
State of Bihar, reported in 2014 (0) AIR(SC) 1600,
wherein the Hon’ble Supreme Court has dealt with
similar issue. In the said decision, the applicant
concerned had approached the Hon’ble Supreme Court
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against the order rejecting an application for
anticipatory bail, wherein also, the proceedings
were initiated under Section 70 of the CrPC as
also under Section 82 of the CrPC and considering
the facts of the case, the Hon’ble Supreme Court
dismissed the said SLP. In the said decision, the
Hon’ble Supreme Court has observed in Paragraph
Nos.8 to 11 as under,
“8. It is thus obvious from the catena of
decisions dealing with bail that even while
clarifying that arrest should be the last
option and it should be restricted to cases
where arrest is imperative in the facts and
circumstances of a case, the consistent view
is that the grant of anticipatory bail shall
be restricted to exceptional circumstances.
In other words, the position is that the
power to grant anticipatory bail under
Section 438, Cr. PC is an exceptional power
and should be exercised only in exceptional
cases and not as a matter of course. Its
object is to ensure that a person should not
be harassed or humiliated in order to satisfy
the grudge or personal vendetta of the
complainant. (See the decision of this Court
in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010
(1) SCC 679.
9. When a Court grants anticipatory bail what it
actually does is only to make an order that
in the event of arrest, the arrestee shall be
released on bail, subject to the terms and
conditions. Taking note of the fact the said
power is to be exercised in exceptional
circumstances and that it may cause some
hinderance to the normal flow of
investigation method when called upon to
exercise the power under Section 438, Cr.PC,
courts must keep reminded of the position
that law aides only the abiding and certainly
not its resistant. By saying so, we mean that
a person, having subjected to investigation
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on a serious offence and upon making out a
case, is included in a charge sheet or even
after filing of a refer report, later, in
accordance with law, the Court issues a
summons to a person, he is bound to submit
himself to the authority of law. It only
means that though he will still be at
liberty, rather, in his right, to take
recourse to the legal remedies available only
in accordance with law, but not in its
defiance. We will dilate this discussion with
reference to the factual matrix of this case.
However, we think that before dealing with
the same, a small deviation to have a glance
at the scope and application of the
provisions under Section 82, Cr.PC will not
be inappropriate.
10. There can be little doubt with respect to the
position that the sine qua non for initiation
of an action under Section 82, Cr. PC is
prior issuance of warrant of arrest by the
Court concerned. In that regard it is
relevant to refer to Section 82 (1), Cr. PC,
which reads thus: –
“82. Proclamation for person absconding.
(1) If any Court has reason to believe
(whether after taking evidence or not)
that any person against whom a warrant
has been issued by it has absconded or
is concealing himself so that such
warrant cannot be executed, such Court
may publish a written proclamation
requiring him to appear at a specified
place and at a specified time not less
than thirty days from the date of
publishing such proclamation.”
11. The use of expression ‘reason to believe’
employed in Section 82 (1) Cr. PC would
suggest that the Magistrate concerned must be
subjectively satisfied that the person
concerned has absconded or has concealed
himself. In the context of Section 82, Cr.
PC, we will have to understand the importance
of the term ‘absconded’. Its etymological and
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ordinary sense is that one who is hiding
himself or concealing himself and avoiding
arrest. Since the legality of the proceedings
under Section 82, Cr. PC is not under
challenge, we need not go into that question.
As noticed above, the nub of the contentions
is that pending the application for pre-
arrest bail, proclamation under Section 82,
Cr.P.C., should not have been issued and at
any rate, its issuance shall not be a reason
for declining to consider such application on
merits. Bearing in mind the position of law
revealed from the decisions referred to
hereinbefore and the positions of law, we
will briefly refer to the factual background
of the case.”
16. In the aforesaid decision, the Hon’ble Supreme
Court has observed in Paragraph Nos.17 to 21 as
under,
“17. Section 70 (2), Cr. PC mandates that every
warrant issued under Section 70 (1), Cr. PC
shall remain in force until it is cancelled
by the Court which issued it, or until it is
executed. In this case, as noticed
hereinbefore, the bailable warrants and
thereafter the non-bailable warrants, were
issued against the appellants. They were
neither cancelled by the Trial Court nor they
were executed. It is not their case that they
have successfully challenged them. Sections
19, 20, 21, 174 and 174 A, IPC assume
relevance in this context. They, insofar as
relevant read thus:
19. “Judge”. The word “Judge” denotes not
only every person who is officially
designated as a Judge, but also every
person who is empowered by law to give,
in any legal proceeding, civil or
criminal, a definitive judgment, or a
judgment which, if not appealed against,
would be definitive, or a judgment
which, if confirmed by some otherPage 14 of 22
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authority, would be definitive, or who
is one of a body or persons, which body
of persons is empowered by law to give
such a judgment.
20. “Court of Justice”.The words “Court of
Justice” denote a Judge who is empowered
by law to act judicially alone, or a
body of Judges which is empowered by law
to act judicially as a body, when such
Judge or body of Judges is acting
judicially.
21. “Public servant”.The words “public
servant” denote a person falling under
any of the descriptions hereinafter
following, namely:
[Third. Every Judge including any person
empowered by law to discharge, whether
by himself or as a member of any body of
persons, any adjudicatory functions;]
174. Non-attendance in obedience to an order
from public servant.Whoever, being
legally bound to attend in person or by
an agent at a certain place and time in
obedience to a summons, notice, order,
or proclamation proceeding from any
public servant legally competent, as
such public servant, to issue the same,
intentionally omits to attend at that
place or time, or departs from the place
where he is bound to attend before the
time at which it is lawful for him to
depart, shall be punished with simple
imprisonment for a term which may extend
to one month, or with fine which may
extend to five hundred rupees, or with
both, or, if the summons, notice, order
or proclamation is to attend in person
or by agent in a Court of Justice, with
simple imprisonment for a term which may
extend to six months, or with fine which
may extend to one thousand rupees, or
with both.
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174A. Non-appearance in response to a
proclamation under section 82 of Act 2
of 1974. Whoever fails to appear at the
specified place and the specified time
as required by a proclamation published
under sub-section (1) of section 82 of
the Code of Criminal Procedure, 1973
shall be punished with imprisonment for
a term which may extend to three years
or with fine or with both, and where a
declaration has been made under sub-
section (4) of that section pronouncing
him as a proclaimed offender, he shall
be punished with imprisonment for a term
which may extend to seven years and
shall also be liable to fine.
18. Taking note of the aforesaid facts with
respect to the issuance of summons,
warrants and subsequently the
proclamation, a conjoint reading of
Sections 19, 20 and 21, IPC containing
the terms “Judge”, “Court of Justice”
and “Public Servant” and Sections 174
and 174A, IPC can make them liable even
to face further proceedings. Same is the
position in case of non-attendance in
obedience to proclamation under Section
82, Cr. PC.
19. Bearing in mind the aforesaid provisions
and position, we will refer to certain
relevant decisions. In Savitaben
Govindbhai Patel & Ors. v. State of
Gujarat, 2004 SCC OnLine Guj 345 the
High Court of Gujarat observed thus: –
“9. Filing of an Anticipatory Bail
Application by the petitioners-accused
through their advocate cannot be said to
be an appearance of the petitioners-
accused in a competent Court, so far as
proceeding initiated under Section 82/83
of the Code is concerned; otherwise each
absconding accused would try to create
shelter by filing an Anticipatory Bail
Application to avoid obligation toPage 16 of 22
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appear before the court and raises the
proceeding under Section 83 of the Code
claiming that he cannot be termed as an
absconder in the eye of law. Physical
appearance before the Court is most
important, if relevant scheme of
Sections 82 and 83, is read closely.”
(underline supplied)
20. We are in full agreement with the view
taken by the Gujarat High Court that
filing of an anticipatory bail through
an advocate would not and could not be
treated as appearance before a court by
a person against whom such proceedings,
as mentioned above are instituted. The
meaning of the term “absconded” has been
dealt by us hereinbefore. We found that
its etymological and original sense is
that the accused is hiding himself. What
is required as proof for absconding is
the evidence to the effect that the
person concerned was knowing that he was
wanted and also about pendency of
warrant of arrest. A detailed discussion
is not warranted in this case to
understand that the appellants were
actually absconding. It is not in
dispute that they were served with the
“summons”. The fact that bailable
warrants were issued against them on
12.04.2022 is also not disputed, as the
appellants themselves have produced the
order whereunder bailable warrants were
issued against them. We have already
referred to Section 70 (2), Cr. PC which
would reveal the position that once a
warrant is issued it would remain in
force until it is cancelled by the Court
which issued it or until its execution.
There is no case for the appellants that
either of such events had occurred in
this case to make the warrants
unenforceable. They also got no case
that their application was interfered
with by a higher Court. That apart, it
is a fact that the appellants themselves
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on 23.08.2022, moved a bail-cum-
surrender application before the Trial
Court but withdrew the same fearing
arrest. It is also relevant to note that
in the case on hand even while
contending that they were before a
Court, the appellants got no case that
in terms of the provisions under Section
438 (1-B), Cr. PC an order for their
presence before the Court was ordered
either suo motu by the Court or on an
application by the public prosecutor.
When that be the circumstance, the
appellants cannot be allowed to contend
that they were not hiding or concealing
themselves from arrest or that they were
not knowing that they were wanted in a
Court of law.
21. To understand and consider another
contention of the appellants it is
worthy to extract ground No.3 raised by
the appellants in SLP which reads thus:
“III. Because the Hon’ble High Court has
failed to appreciate that proclamation
under section 82 Cr.P.C. was issued on
04.01.2023 by the Ld. Trial Court and
thereafter process under section 83
Cr.P.C. have been initiated on
15.03.2023 whereas the application for
anticipatory bail by the petitioner
before the Hon’ble High Court was filed
in November, 2022, however, the same was
came for hearing on 04.04.2023. It is,
therefore, evident that when the
petitioners preferred filing of
anticipatory bail before the Hon’ble
High Court then none of the petitioner
was declared absconder and process under
section 82/83 Cr.P.C. were not initiated
against them.”
17. It is to be noted that in number of cases, the
Hon’ble Supreme Court has held that the power to
grant anticipatory bail is an extraordinary power
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and though it was held that bail is said to be a
rule, it cannot, by any stretch of imagination, be
said that anticipatory bail is the rule and the
question of its grant should be left to the
cautious and judicious discretion by the Court
depending on the facts and circumstances of each
case and the Court concerned has to be very
cautious as the grant of interim protection or
protection to the accused in serious cases, which
may lead to miscarriage of justice and may hamper
the investigation to a great extent as it may
sometimes lead to tampering or distraction of the
evidence. It is also required to be noted that in
view of aforesaid decision as well as other
decisions of the Hon’ble Supreme Court, as and
when warrant of arrest is issued, in that event,
the applicant is not entitled to invoke the
extraordinary power and it is not that this will
not deprive the power of the Court to grant pre-
arrest bail in extreme, exceptional cases in the
interest of justice but here in the present case,
as stated above, the applicant is continuously
defying orders and keeping himself absconding,
therefore, he is not entitled to grant
anticipatory bail. The factual narration made
hereinbefore would reveal the consistent
disobedience of the appellant to comply with the
order of the trial Court because he failed to
appear before the Court concerned after the
issuance of the summons. Such conduct of the
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applicant in the light of the aforesaid
circumstances, leaves no hesitation for me to hold
he is not entitled to seek the benefit of pre-
arrest bail.
18. The Hon’ble Supreme Court in the case of Sumitha
Pradeep Vs. Arun Kumar C.K. & Anr., reported in 2022
SCC OnLine SC 1529 held that merely because
custodial interrogation was not required by itself
could not be a ground to grant anticipatory bail.
The first and the foremost thing the Court hearing
the anticipatory bail application is to consider is
the prima facie case against the accused. The
relevant extract of the judgment is reproduced
hereinbelow:-
“It may be true, as pointed out by learned
counsel appearing for Respondent No.1, that
charge-sheet has already been filed. It will
be unfair to presume on our part that the
Investigating Officer does not require
Respondent No.1 for custodial interrogation
for the purpose of further investigation. 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. 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
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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. Custodial
interrogation can be one of the relevant
aspects to be considered along with other
grounds while deciding an application seeking
anticipatory bail. There may be many cases in
which the custodial interrogation of the
accused may not be required, but that does
not mean that the prima facie case against
the accused should be ignored or overlooked
and he should be granted anticipatory bail.
The first and foremost thing that the court
hearing an anticipatory bail application
should consider is the prima facie case put
up against the accused. Thereafter, the
nature of the offence should be looked into
along with the severity of the punishment.
Custodial interrogation can be one of the
grounds to decline custodial interrogation.
However, even if custodial interrogation is
not required or necessitated, by itself,
cannot be a ground to grant anticipatory
bail.”
19. Thus while taking into consideration the ratio laid
down by the Hon’ble Supreme Court in the case of
Siddharam Satlingappa Mhetre (supra) as also ratio
laid down in other decisions as stated above, I have
gone through the contents of the FIR, which is
placed on record and also considered the affidavit
of the investigating officer filed before the
learned Judge concerned opposing the bail
application preferred by the applicants. Upon going
through the contents of the FIR, it appears that
prima facie case is made out against the applicants
and material collected so far suggests the
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involvement of the applicants in the commission of
crime.
20. For the foregoing reasons, having regard to facts
and circumstances, peculiar to the instant case, as
have been analyzed hereinabove, the applicants have
failed to make out a special case for exercise of
power to grant bail and considering the facts and
parameters, necessary to be considered for
adjudication of anticipatory bail, this Court does
not find any exceptional ground to exercise its
discretionary jurisdiction under Section 482 of the
BNSS to grant anticipatory bail. More so,
investigation is still going on in the present case.
It is settled proposition of law that power
exercisable under Section 482 BNSS, is somewhat
discretionary in character and it is to be exercised
with caution in exceptional cases. Hence, the
present applications seeking for anticipatory bail
are hereby rejected.
21. Needless to say that observations and findings made
hereinabove are limited to the decision of these
pre-arrest bail applications, and shall not
influence any other proceedings arise from impugned
FIR.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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