This is the second anticipatory bail application where the applicant did not appear. The court found no evidence of apprehension of arrest and dismissed the application, citing the statutory requirements under Section 438 Cr.P.C.
Application dismissed; liberty to avail proper remedy under law.
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Court No. - 77
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3078 of 2021
Applicant :- Shivkant Saxena Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amar Singh Kashyap Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
List revised. None appears on behalf of the applicant to press this application. Mr. K.P. Pathak, learned A.G.A. for the State is present.
The second anticipatory bail application has been moved seeking anticipatory bail in Case Crime No.103 of 2018, under Sections 420, 467, 468, 471 I.P.C., Police Station-Tundala, District-Firozabad with the prayer that in the event of arrest, applicant may be released on bail.
This is the second anticipatory bail application, which has been filed in the year 2021, i.e. almost one year has elapsed, but the same has not been argued by the learned counsel for the applicant till date.
Learned A.G.A. submits that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
In order to make disposal of this application, it is relevant to mention Section 438 Cr.P.C., which is reproduced herein below:-
"438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to
the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)."
After the close scrutiny of Section 438 Cr.P.C.(U.P. Act No.4 of 2019) and its relevant clauses, the Court finds that there is nothing on record to show apprehension of arrest of the applicant.
In view of the above, this anticipatory bail application is, accordingly, dismissed with liberty to avail proper remedy as provided under law.
Order Date :- 19.1.2023
Rahul.
Digitally signed by :- RAHUL GOSWAMI High Court of Judicature at Allahabad
1 issue framed by the court
Whether anticipatory bail can be granted where the applicant fails to appear and no apprehension of arrest is established on record.
1 provisions across 1 enactments
Shivkant Saxena
State of U.P.
Manju Rani Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
