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TMI Blog2020 (5) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... ented which indicate that they were in proximity. As submitted, both the parties earlier tried to settle the matter by filing petition under Section 482 of Cr.P.C. bearing No.930/2020. Therefore, both matured individuals waited the consequences of their decisions and both lived some days together comfortably. Consensual proximity of Body and Soul cannot be used as a weapon to wreak vengeance at a later point of time when Body and Soul drift apart. The bail application is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... out maintainability of the application for anticipatory bail under Section 438 of Cr.P.C. in view of the legal position that when any person has been declared as absconder and award of Rs.5,000/- has been declared by the Superintendent of Police as per Police Regulation 789 (as per case diary of instant case) then his prospects to get anticipatory bail gets extinguished, learned counsel for the applicant submits that it is not correct application of law because here in the present case the applicant has not been declared absconder so far as per Sections 82 and 83 of Cr.P.C. Therefore, legal bar created by the judgments of Apex Court in the matter of Lavesh Vs. State (NCT Of Delhi), (2012) 8 SCC 73 as well as in the matter of State of M.P. Vs. Pradeep Sharma, (2014) 2 SCC 171 is not applicable in the present set of facts. 6. It is submitted by learned counsel for the applicant that police is at liberty to declare award over any person for apprehension who is not available for investigation but this may be their device to deny the applicant (or other similarly situated persons) a chance to get anticipatory bail. 7. On the other hand, learned PP for the respondent/State opposed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel was ably assisted by Shri Rajesh Kumar Shukla, Shri Atul Gupta and Shri S.K. Shrivastava, Advocates. 11. Learned senior counsel referred the judgment of Constitution Bench of Apex Court in the case of Gurbaksh Singh Sibbia etc. Vs. The State of Punjab, AIR 1980 SC 1632 and submitted that the concept of anticipatory bail has been elaborately discussed by the Hon'ble Apex Court as incorporated in Cr.P.C. by virtue of 41st report of Law Commission. It is still holding the field, as reiterated by the Constitution Bench of Apex Court in its recent pronouncement in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another in SLP (Criminal) Nos.7281-7282/2017 passed on 29-01-2020. 12. He submits that different facets of Section 438 of Cr.P.C. have been elaborately dealt with in these judgments and therefore, law is well settled that personal liberty is such sacrosanct that it cannot be sacrificed at the whims and fancies of Investigating Officer. He referred the solemn duty and its constant violation by the Investigating Officer and other officers to curtail the prospects of personal freedom of person by declaring him absconder by issuing cash reward or prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estingly on the false promise of marriage, he committed rape and as per contents of FIR itself, he solemnized marriage with the prosecutrix on 16-11-2019 and thereafter continued to live as her husband for some time. As per submission of learned counsel for the applicant, the application under Section 482 of Cr.P.C. for compromise by way of M.Cr.C.No.930/2020 was also filed earlier by the parties to settle their dispute but since the allegation was under Section 376 of IPC also, therefore, the said prayer for settlement was rejected by this Court. 17. Here, the main objection of counsel for the respondent/State and complainant is preparation of Farari Panchnama and declaration of award of Rs.5,000/- over the applicant to secure his arrest and therefore, the respondent/State and complainant sought dismissal of this application on this ground mainly. 18. Constitution Bench judgment of Apex Court in the matter of Gurbaksh Singh Sibbia etc. (supra) takes all possible contours into its ambit. Full Bench judgment of Punjab & Haryana High Court from which case originates, rejected the application for bail after summarizing eight legal propositions and all those legal propositions were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nticipatory bail. 26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21of the Constitution, the procedure established by law for depriving a person of his liberty mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any time so long as the applicant has not been arrested, meaning thereby maintainability of an application under Section 438 of Cr.P.C. does not lie at the mercy of any Investigating Agency/Officer or any other consideration including provisions of Cr.P.C. as tried to be projected by the respondent. Relevant extract for ready reference is reproduced as under: "We may notice here that the provision with regard to the grant of anticipatory bail was introduced on the recommendations of the Law Commission of India in his 41st Report dated 24.09.1969. The recommendations were considered by this Court in a Constitution Bench decision in the case of Gurbaksh Singh Sibbia and others vs. State of Punjab. Upon consideration of the entire issue this Court laid down certain salutary principles to be followed in exercise of the power under Section 438Cr.P.C. by the Sessions Court and the High Court. It is clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is made to the High Court or Court of Sessions it must apply its own mind on the question and decide when the case is made out for granting such relief." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry bail to the period of time. 24. From the discussion of judgments of Constitution Bench in the case of Gurbaksh Singh Sibbia etc. and Sushila Aggarwal (supra) as well as judgment of Apex Court in the case of Bharat Chaudhary and Ravindra Saxena (supra), it is apparently clear that no bar can exist against a person seeking anticipatory bail. In other words application under Section 438 of Cr.P.C. is maintainable even after filing of charge-sheet or till the person is not arrested. 25. It is to be kept in mind that Personal Liberty of an individual as ensured by Section 438 of Cr.P.C. is embodiment of Article 21 of Constitution of India in Cr.P.C. Therefore, scope and legislative intent of Section 438 of Cr.P.C. is to be seen from that vantage point. 26. So far as submission of parties regarding judgments rendered by the Apex Court in the case of Lavesh (supra) and Pradeep Sharma (supra) is concerned, reconciliation of Justiciability and Justifiability is to be reached. Close scrutiny of judgment of Apex Court in the case of Lavesh (supra) nowhere bars maintainability of an application under Section 438 of Cr.P.C. if a person is absconding. In fact it takes care of Justifiabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular case, as it may thinks 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, he 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). (4) Nothing in this section shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia etc. (supra) and Sushila Aggarwal and others (supra) as well as two Judge Bench of Apex Court in the case of Bharat Chaudhary and another (supra) as well as Ravindra Saxena (supra) because these judgments categorically held that anticipatory bail is maintainable even after filing of charge-sheet and till the person is not arrested. 30. Full Bench decision of this Court in the case of Jabalpur Bus Operators Association Vs. State of Madhya Pradesh and others, 2003 (1) MPLJ 513 has dealt with law of precedent and rule of stare decisis. One can suitably take guidance from the said Full Court decision of this Court which is based upon several judgments rendered by the Apex Court from time to time in this regard. This Court can profitably rely upon the ratio of the said judgment as delineated in penultimate para. 31- Therefore, Apex Court in the case of Lavesh and Pradeep Sharma (supra) impliedly referred the factor (iii) of Section 438 (1) of Cr.P.C. and its different fallouts because according to Apex Court, a person who is proclaimed offender under Sections 82 and 83 of Cr.P.C. loses the sheen on merits to seek anticipatory bail. His application deserves dismissal on merits if he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions, it appears that on false promise of marriage, initially physical intimacy developed and later on both entered into wedlock but it is grievance of prosecutrix that he is already a married person. Certain bank transactions have already been referred and documented which indicate that they were in proximity. As submitted, both the parties earlier tried to settle the matter by filing petition under Section 482 of Cr.P.C. bearing No.930/2020. Therefore, both matured individuals waited the consequences of their decisions and both lived some days together comfortably. Cumulatively, it appears that the principle enumerated by the Apex Court in the matter of Pramod Suryabhan Pawar (supra) and Dr. Dhruvaram Murlidhar Sonar (supra) as well as facts and circumstances of the case, applicant deserves consideration for anticipatory bail. Even otherwise the police nowhere referred criminal antecedents of the applicant and his presence can be ensured by marking his attendance before the Investigating Officer for investigation purpose. 35. Consensual proximity of Body and Soul cannot be used as a weapon to wreak vengeance at a later point of time when Body and Soul drift apart. 36. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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