Heard Sri Uma Kant Gupta, learned counsel for applicant, learned State counsel and perused the record.
Facts in brief of the present case is that an F.I.R. against the petitioner has been registered under Section 60(2), 72 Excise Act and 272 I.P.C. being Case Crime No. 200/2019, Police Station - Khiron, District Raebareli.
Aggrieved by the said facts, the petitioner has filed a bail application No. 17/2019 by invoking the provisions as provided under Section 438 Cr.P.C., the same was dismissed by an order dated 07.08.2019 by Sessions Judge, Raebareli.
Thereafter, present anticipatory bail application has been filed by the applicant under Section 438 Cr. P.C.
Learned counsel for applicant while pressing this anticipatory bail application submits that the assertion as made in the F.I.R.is wholly wrong and the applicant is not guilty of the incident in question, so keeping in view the said facts, the applicant may be granted anticipatory bail in the matter in question.
Learned State counsel while opposing the anticipatory bail application submits that from the bare reading fo the F.I.R. as well as order passed by Sessions Judge, the position which emerged out is that the charges leveled against the applicant is fully established and he is not entitled for anticipatory bail.
I have heard learned counsel for parties and gone through the record.
Before proceeding to decide the matter in question I feel appropraite to go through the law as laid down by Hon'ble the Apex Court in the case of Gurubaksh Singh Sibbia Vs. The State of Punjab, AIR 1980 Sc 1632 and Sarbajit singh and another Vs. The State of Punjab, AIR 2009 SC 2792, whereby Hon'ble Apex Court has held that the power which is to be exercised by Court while entertaining the application under Section 438 of Cr.P.C. in the following manner:-
"12. We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the Power conferred by S. 438. Cl. (1) Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by S. 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: S. 437 which deals with the power of Courts other than the Court of Sessions and the High Court of grant bail in non-bailable cases and Section 439 which deals with the "special powers" of the High Court and the Court and the Court of Sessions regarding bail. The whole of Section regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail."
Further, the Apex Court has also observed that Section 438 is a departure Section from 437 and 439 of Cr.P.C. The provisions of Sections 437 and 439 of Cr.P.C. furnish a convenient model for the legislature to copy while enacting Section 438 of Cr.P.C.
"The provisions of Ss. 437 and 439 furnished a convenient model for the legislature to copy while enacting S.438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission, which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Sessions to grant anticipatory bail, said in Para. 39.9 that it had "considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted but had come to the conclusion that the question of granting such bail should be left "to the discretion of the Court" and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Sessions to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the high courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail."
After taking into consideration the said guidelines as well as hearing learned counsel for parties, without commenting anything on the merit.
Further, on the bare perusal of the F.I.R. in question, a cognizable offence is made out against the applicant, so anticipatory bail cannot be granted to him.
Accordingly, the application for grant of anticipatory bail is rejected.
Order Date :- 30.8.2019 Ravi/