HM Journal

Is nature of allegation & accusation, & not that nature of accusation arising out of Business transaction is what needs to be considered before granting anticipatory bail?

Facts

  • The appellant filed the first information report (FIR) against the respondent no. 2 herein-accused for Commission of offences punishable under section 406,407, 468, 506 of Indian Penal Code, 1860(IPC).
  • The accused was absconding to avoid service of warrant of arrest. He filed anticipatory bail before the learned trial court which was rejected on the ground that he tried to escape and the proceedings under section 82 and 83 of code of criminal procedure (CrPC) have been issued.
  • The accused approached the High Court by way of present application and the High Court allowed the anticipatory bail ignoring the fact that the accused should not be allowed the privilege of anticipatory bail since the process of proclamation under section 82 and 83 of CrPC have been issued.
  • The anticipatory bail by the High Court to the respondent no.2 is challenged in the present appeal by the appellant.

Contentions of appellant

  • According to the council of appellant the High Court has committed a grave error in allowing the anticipatory bail. Same was contented by the counsel on grounds that the accused was avoiding the arrest. He also failed to cooperate with investigating agency as required. Despite the insincerity shown by the respondent no. 2 High Court granted him the anticipatory bail which has caused grave injustice.
  • Also as proceedings required under law proceeding under section 82 and 83 of CrPC also appears to be ignored by the High Court while passing the impugned order.
  • It is further seen that the offences punishable under section 406 and 420 of IPC is alleged to have been committed by the accused which the learned Trial Court considered while rejecting the anticipatory bail application was overlooked by the High Court and it granted the anticipatory bail to respondent merely on the basis that the nature of accusation was arising out of a business transaction.

Contention of the respondent

  • The learned counsel appearing on behalf of respondent has contended that the High Court has not committed any error in granting anticipatory bail to the accused and has rightly observed that the nature of accusation is arising out of a business transaction.
  • According to the council it is also contended that the accused was on hand for interrogation and therefore there is no question of absconding.

 Principle an observation of the court

  1. a) Material and evidence on record clearly point out a prima facie case against the respondent no.2.
  2. b) Appreciating the same by applying proper legal mind Trial Court rightly dismissed the prayer for anticipatory bail by passing a reasoned order.
  3. c) Act of absconding by accused clearly shows his non cooperation in investigation and proceedings of 82 and 83 of CrPC initiated against him should not have been ignored by the High Court while passing the order.
  4. d) Important aspects such as fact that accusation is arising out of a business transaction and specific allegation of cheating which was rightly considered by trial code has been completely neglected by the High Court thereby grave injustice committed by High Court in granting anticipatory bail to respondent no.2.

Judgment

The Court observed that allegations made against respondent no.2 are genuine and there is a clear prime facie case against him as alleged by appellant. Considering the same court found out that observations made by the High Court are unsustainable in the eyes of the law and was found deserving to be quashed and set aside. Impugned order thereby granting anticipatory bail to the respondent no. 2 was thereby quashed and set aside.

 Opinion

While going through this judgment it occurred to me that the contentions on behalf of the appellant clearly made out a case in their favour. Also the points put out by them evidently shows that the balance of convenience was in their favor.

Also important proceeding as required under law that is proceeding under section 82 and 83 of CrPC which prohibits the privilege of anticipatory bail  was neglected by the  High Court which should not be done at any cost.

In my opinion this court has rightly allowed this appeal and dismissed or set aside the impugned order by granting interim relief of anticipatory bail to respondent no.2.

Judgment Date – October 21, 2021

Judges/Bench –  M.R.Shah , A.S.Bopanna

Name of the writer – Ashna Khanam

College – Chotanagpur Law College,Ranchi

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