Dismissed

Mohammad Bashshar v. Union of India Deptt. of Air Customs C.C.S.I Lko. Thru. Deepak Kumar Inspector

Allahabad HC26 Jul 2024ABAIL/1656/2024

Case brief

AI extract

What is this about?

A CrPC 438 anticipatory bail application was rejected as not maintainable. The court relied on a prior order in a similar case involving charges described as bailable, citing a coordinate bench decision that such applications are not maintainable in this context.

What did the court decide?

Application rejected as not maintainable. Trial court directed to consider Mohd. Tufial case if bail application is moved before it.

Mohammad Bashshar vs Union of India Deptt. of Air… — Anticipatory Bail | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:51103

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Court No. - 8

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1656 of 2024

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Applicant :- Mohammad Bashshar Opposite Party :- Union Of India Deptt. Of Air Customs C.C.S.I Lko. Thru. Deepak Kumar Inspector Counsel for Applicant :- Raghvendra P. Singh,Vijay Pratap Singh Counsel for Opposite Party :- Dipak Seth

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the applicant.

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Shri K. D. Nag, learned counsel has put in appearance on behalf of the respondentdepartment and has raised a preliminary objection in so far as the maintainability of the instant anticipatory bail is concerned. It is submitted by him that in the anticipatory bail application, it has been stated by the applicant that the offence under which the applicant has been charged is bailable, non-cognizable and in such circumstances the anticipatory bail application is not maintainable. He has also drawn the attention of the Court to an order passed by this Court dated 29.05.2024 passed in Criminal Miscellaneous Anticipatory Bail Application No.1196 of 2024 which reads as under:-

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"Heard learned counsel for the applicant and Shri K.V. Nag, learned counsel for the respondent - Union of India.

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A preliminary objections has been raised by the learned counsel for the respondent that admittedly as per the averments contained in Paragraph-31 of the affidavit filed in support of the instant anticipatory bail application, it is stated by the applicant that the matter is non-cognizable, compoundable and bailable in terms of Section 135 and 137 read with Section 104 of the Customs Act and for the aforesaid reason, the instant anticipatory bail application under Section 438 Cr.P.C., is not maintainable.

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In support of his submissions, learned counsel for the

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respondent has relied upon a decision of the Coordinate Bench of this Court in M/s. V.K. Traders v. Union of India and 3 others in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.19059 of 2021, decided in 08.03.2022.

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Leaned counsel for the applicant does not dispute that the matter in question is bailable. He also could not dispute the dictum of this Court in M/s. V.K. Traders (supra). Thus, for the aforesaid reasons, the instant anticipatory bail application is not maintainable and is accordingly dismissed as not maintainable."

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It is thus urged that in light of the aforesaid the instant petition is not maintainable.

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This Court after hearing the parties was inclined to pass the same order as was done on 29.05.2024 in anticipatory bail application No.1196 of 2024. The order of which has been reproduced hereinabove. At this time, the counsel for the department had left but the counsel for the applicant insisted that on the strength of the order which has been relied upon by the respondent, the same is misused in the sense that before this Court an objection of maintainability is raised and in this view of the matter, the application has to approach the trial court there. The department changes its stand and takes a plea that the offences are non-bailable and in such circumstances the bail application is rejected and the person is taken in custody.

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It has further been submitted that this has already been indicated by the applicant in the supplementary-affidavit and he has referred to a case wherein under such circumstances, the applicant of the said case was taken in custody. He thus submitted that at least this Court may provide in the order that the trial court while considering the bail application also notices the decision of this Court in Mohd. Tufial passed in Criminal Misc. Bail Application No.57731 of 2022 decided on 23.03.2023.

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Since Shri K. D. Nag had left the Court hence, the Court had requested the learned Standing Counsel present in Court to call Shri Nag. However, it has been reported by the learned Standing

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Counsel that Shri Nag though informed that he was required in Court but he refused to come. The Court had also requested the Senior Registrar of this Court to inform Shri Nag to be present in Court and it has been informed that he has not receiving the call. In such situation, this Court is constrained to notice that the aforesaid behaviour of Shri Nag does not reflect well and is not expected from a senior Member of the Bar and it is unfortunate. The behaviour of Shri K. D. Nag, learned counsel is not appreciable.

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Having taken note of the aforesaid submissions including the averments made by the applicant in the supplementary-affidavit and relying upon the earlier decision of this Court dated 29.05.2024 which was been quoted hereinabove. The instant anticipatory bail application is also rejected as not maintainable. However, it is further observed that in case when the bail application is moved before the trial court, the trial court shall after hearing the parties shall also consider the decision of this Court in Case No.57731 of 2022 decided on 23.03.2023, Mohd. Tufial while deciding the bail application, in accordance with law.

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Order Date :- 26.7.2024 ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Mohammad Bashshar v. Union of India Deptt. of Air Customs C.C.S.I Lko. Thru. Deepak Kumar Inspector

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Mohammad Bashshar v. Union of India Deptt. of Air Customs C.C.S.I Lko. Thru. Deepak Kumar Inspector

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