# Kailash (In Jail) v. State of U.P - **Citation:** (2022) 12 ILRA 665 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-09-30 - **Case number:** Criminal Misc. Anticipatory Bail Application No. 9396 of 2022 - **Bench:** Krishan Pahal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-in-jail-v-state-of-u-p-47967 - **Pages:** 5 ## Headnote 666 INDIAN LAW REPORTS ALLAHABAD SERIES G.A. (A) Criminal Law - The Code of criminal procedure, 1973 - Section 438 - Anticipatory Bail - The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 18 - Section 438 of the Code not to apply to persons committing an offence under the Act , Section 18A(i) - No enquiry or approval required , Section 14A(2) - Appeal before high court - distinction - existence of the power to arrest and justification for exercise of it - an anticipatory bail in a crime where an offence under SC/ST is alleged can be granted only if the Court is satisfied that the allegations levelled do not prima facie make out a case under SC/ST Act - expression 'bail' in Section 14A of SC/ST Act includes anticipatory bail as well. (Para - 6,15,17) Offence under SC/ST Act - Question of admissibility of jurisdiction of bails vide concurrent jurisdiction - enshrined in Section 438 of Cr.P.C. agitated. (Para - 2,3) HELD:- Special Court while dealing with an application for anticipatory bail must ascertain whether a prima facie case for an offence punishable under the Act is made out, then only the application for anticipatory bail can be considered. Order granting or rejecting anticipatory bail under the provisions of SC/ST Act shall be amenable to the appellate jurisdiction of the High Court under Section 14A of the Act and not Section 438 Cr.P.C. (Para - 18 ) Anticipatory bail application dismissed. (E-7) List of Cases cited:- ## Text 12 All. Kailash Vs. State of U.P. 665 17. Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the principle laid down by the Courts in the above referred case laws, I am of the view that it is a fit case for grant of bail. Accordingly, the bail application is allowed. 18. Let the applicant-Ganesh involved in the aforesaid case be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions : (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC. (iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant. 19. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 20. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. ---------- (2022) 12 ILRA 665 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 30.09.2022 BEFORE THE HON'BLE KRISHAN PAHAL, J. Criminal Misc. Anticipatory Bail Application No. 9396 of 2022 And Criminal Misc. Anticipatory Bail Application No.9378 of 2022 And Criminal Misc. Anticipatory Bail Application No. 9363 of 2022 Kailash ...Applicant (In Jail) Versus State of U.P. ...Opposite Party Counsel for the Applicant: Sri Akash Tomar Counsel for the Opposite Party: 666 INDIAN LAW REPORTS ALLAHABAD SERIES G.A. (A) Criminal Law - The Code of criminal procedure, 1973 - Section 438 - Anticipatory Bail - The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 18 - Section 438 of the Code not to apply to persons committing an offence under the Act , Section 18A(i) - No enquiry or approval required , Section 14A(2) - Appeal before high court - distinction - existence of the power to arrest and justification for exercise of it - an anticipatory bail in a crime where an offence under SC/ST is alleged can be granted only if the Court is satisfied that the allegations levelled do not prima facie make out a case under SC/ST Act - expression 'bail' in Section 14A of SC/ST Act includes anticipatory bail as well. (Para - 6,15,17) Offence under SC/ST Act - Question of admissibility of jurisdiction of bails vide concurrent jurisdiction - enshrined in Section 438 of Cr.P.C. agitated. (Para - 2,3) HELD:- Special Court while dealing with an application for anticipatory bail must ascertain whether a prima facie case for an offence punishable under the Act is made out, then only the application for anticipatory bail can be considered. Order granting or rejecting anticipatory bail under the provisions of SC/ST Act shall be amenable to the appellate jurisdiction of the High Court under Section 14A of the Act and not Section 438 Cr.P.C. (Para - 18 ) Anticipatory bail application dismissed. (E-7) List of Cases cited:- 1. Prathvi Raj Chauhan Vs U.O.I. & Ors., (2020) 4 SCC 727 2. Siddharth Vs St. of U.P. & Ors., (2021) SCC Online SC 615 3. St. of A.P. through I.G., N.I.A. Vs Mohd. Hussain @ Saleem, (2014) 1 SCC 250 4. St. of Guj. Vs Salimbhai Abdulgaffar Shaikh & Ors., (2003) 8 SCC 50 (Delivered by Hon'ble Krishan Pahal, J.) 1. Heard learned counsels for the parties as well as perused the material available on record. 2. The applicants in the aforesaid anticipatory bail applications are alleged to have committed offences punishable under the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as ''SC/ST Act'). 3. All the three anticipatory bail applications have been dismissed by the respective Special Judge SC/ST Act. The question of admissibility of jurisdiction of the aforesaid bails vide concurrent jurisdiction enshrined in Section 438 of Cr.P.C. has been agitated. 4. For the sake of verbiage, the contentions put by the learned counsels are concised below: (i) As per the law laid down in Prathvi Raj Chauhan vs. Union of India & Others1, notwithstanding the bar under Sections 18 and 18-A of the Act, the application for anticipatory bail is maintainable. (ii) The application for anticipatory bail under SC/ST Act can be filed under Section 438 Cr.P.C. in the High Court as well as Sessions Court. 5. It is argued on behalf of the applicants that as per the settled law of the Apex Court passed in case of Prathvi Raj Chauhan (supra), if the complaint does not make out a prima facie case for the applicability of the provisions of the SC/ST Act, 1989, the bar created by Sections 18 and 18A(i) shall not apply. The only caveat 12 All. Kailash Vs. State of U.P. 667 is that the power has to be used sparingly and is not to be used so as to convert the jurisdiction into that under Section 438 of the Code of Criminal Procedure. 6. It is further argued on behalf of the applicants that the Apex Court in the judgment of Siddharth vs. State of U.P. and Others2, has opined that if the Investigating Officer does not believe that the accused will abscond of disobey summons, he/she is not required to be produced in custody. It was also opined that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an Accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made a routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused. 7. The Apex Court in the matter of State of Andhra Pradesh through I.G., National Investigating Agency vs. Mohd. Hussain alias Saleem3 has held that if an application of bail or pre-arrest bail in the case instituted under the Act is made under the provisions prescribed in Chapter XXXIII of the Code in a Special Court or an exclusive Special Court and it is granted or refused, an appeal under newly inserted Section 14A(2) of the Act would lie before the High Court. 8. In case of State of Gujarat vs. Salimbhai Abdulgaffar Shaikh and Others4, it was provided that under the prevention of Terrorism Act, 2002, the exercise under Section 439 and 482 Cr.P.C. by the High Court was found illegal and the bail could be granted only under the special provision and an appeal under Section 34 of Prevention of Terrorism Act against the order of rejection or allowing a bail could only be filed in the High Court before a Double Bench. 9. In Section 21(4) of NIA Act, the expression used is "bail" without saying whether it is regular bail or anticipatory bail. S.437 to 439 of the Code state that a person accused of or suspected of the commission of offences of the type referred therein may be "released on bail". The only difference between S.437, S.439 and S.438 is that an order of anticipatory bail under S.438 insulates a person arrested from custody while an order of bail under S.437 or 439 enables him to be released from custody. 10. The Advanced Law Lexicon, 3rd Edition defines "bail" as under: "Bail means to set liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called bail. A security such as cash or a bond; especially, security required by a Court for the release of a prisoner who must appear at a future time." Anticipatory bail is explained as meaning, "an order of anticipatory bail 668 INDIAN LAW REPORTS ALLAHABAD SERIES constituting an insurance against Police custody following upon arrest for some offence or offences in respect of which the order is issued". 11. In Black's Law Dictionary, 9th Edition, the expression 'bail' is given the meaning, "A security such as cash or a bond; especially security required by a Court for the release of a prisoner who must appear in Court at a future time". 12. The expression "bail" only means the security given by the person accused or suspected of the commission of offence for his release from custody or to insulate him from custody. The expression 'bail' used in S.21(4) of the NIA Act could therefore be regular bail as well as anticipatory bail. Such a view is required to be adopted to avoid, as aforesaid unintelligible, absurd or unreasonable results. 13. The basic rule of interpretation is to give effect to the plain meaning of the statute. If it is not clear and ambiguous, then the court can take recourse to other modes of interpretation. There are two types of aids of interpretation- internal and external. Internal aids are within the statutes as title, preamble, schedule and other provisions of the said Act. If the ambiguity is still not clear, then the court can use external aids to interpret a particular provision i.e. dictionary, parliamentary debates, foreign judgments, provisions of other Acts (pari materia). 14. An unembellished inspection of Section 21 of the NIA Act vis-à-vis Section 14A of the Act, reveals that clause (1) and (4) of the NIA Act are in pari materia to the newly inserted Section 14A(1) and (2) of the Act. 15. After the decision in Prathvi Raj Chauhan (supra), the legal position is that an anticipatory bail in a crime where an offence under SC/ST is alleged can be granted only if the Court is satisfied that the allegations levelled do not prima facie make out a case under SC/ST Act. The position of law remains same even after the enactment of Section 18A of the Act. 16. Under SC/ST Act, there is special procedure and Special Courts/Exclusive Special Courts for dealing with the cases involved in the offences against the scheduled castes and scheduled tribes. A reading of the provisions of Sections 2(d), 2(bd) and Section 14 categorically indicate that the said offences are exclusively triable by Special Courts as contemplated by the legislature. 17. It is further to be kept in mind that under the special provisions of the SC/ST Act, the right of the victim and the witnesses are on a higher pedestal than provided under Cr.P.C. From the entire scheme of the act, including the powers of the Special Courts, it can be concluded that the Act has given primacy and exclusivity to the Special Courts over normal Courts. The expression 'bail' in Section 14A of SC/ST Act includes anticipatory bail as well. 18. Thus, in view of the aforesaid principles enumerated above, the Special Court while dealing with an application for anticipatory bail must ascertain whether a prima facie case for an offence punishable under the Act is made out, then only the application for anticipatory bail can be considered. The order granting or rejecting the anticipatory bail under the provisions of SC/ST Act shall be amenable to the appellate jurisdiction of the High Court under Section 14A of the Act and not Section 438 Cr.P.C. 19. In view of the aforesaid observations, the present anticipatory bail applications are dismissed. 12 All. Kapil Wadhawan & Anr. Vs. State thru. C.B.I. 669 20. In the interest of justice and proper adjudication, the applicants are at liberty to file an appeal under Section 14A of the SC/ST Act. 21. The certified copy of the orders and other relevant documents shall be returned to the counsels for the applicants after obtaining photostat copies, which shall be kept on record. ---------- (2022) 12 ILRA 669 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 29.11.2022 BEFORE THE HON'BLE DINESH KUMAR SINGH, J. Criminal Misc. Bail Application No. 12007 of 2022 Kapil Wadhawan & Anr. ...Applicants Versus State thru. C.B.I. ...Opposite Party Counsel for the Applicants: Sri Pranjal Krishna Counsel for the Opposite Party: Anurag Kumar Singh (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 439 - Bail , Section 167 - Procedure when investigation cannot be completed in twenty four hours - Indian Penal Code, 1860 - Sections- 120B, 409, 420, 467, 468, 471, Prevention to the Corruption Act, 1988 - Sections 7A, 8, 13(2),13(1)(d) - Any offence for which the sentence provided is more than 10 years, custody period would be extendable to 90 days. (Para -32 ) Accused allegedly involved in commission of offence(s) - Mind-boggling financial fraud - regarding siphoning and misappropriation of public funds of thousands of crores - punishment up to ''for life' - minimum punishment of ''ten years not provided - whether entitled to default bail - on expiry of 60 days - under provisions of section 167(1)(a)(ii), Cr.P.C. - charge sheet not filed within a period of sixty days.(Para - 33) (B) Interpretation of Statute - golden rule of interpretation - words used by legislature should be given their natural meaning - text of section 167 of Cr.P.C. - explicit and needs no great interpretation - legislature in its wisdom extended a custody period of 90 days without filing charge sheet - respect of three kinds of Offences where punishment is prescribed - a. death; b. imprisonment for life; or c. minimum sentence provided is not less than 10 years. (Para 32) HELD:-Extended period of 90 days would be available to the investigating agency. Accusedapplicants not entitled to default bail on an expiry of 60 days from the date of their custody. (Para -33 ) Bail application rejected. (E-7) List of Cases cited:- 1. Rakesh Kumar Paul Vs St. of Assam, (2017) 15 SCC 67 2. M. Ravindran Vs Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 3. Sohan Lal Vs St. of U.P., 1991 SCC OnLine All 469 (Delivered by Hon'ble Dinesh Kumar Singh, J.) 1. The present application under Section 439, read with section 167 of the Code of Criminal Procedure 1973 (hereinafter referred to as "Cr.P.C.") has been filed by the applicants, Kapil Wadhawan and Dheeraj Wadhawan, seeking default bail in Crime No. RC No.0062020A0005 under Sections- 120B,