# Khalid Anwar @ Anwar Khalid v. C.B.I

- **Citation:** (2023) 9 ILRA 582
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-06
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 1981 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khalid-anwar-anwar-khalid-v-c-b-i-50852
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120-B, r. w. 419 & 420-
Prevention of Corruption Act, 1988 -
Section 7 (c), 13(1)(a) r. w. 13(2) - The
Code of Criminal Procedure, 1973
-
Section 82 - Proclamation for person
absconding, The Customs Act, 1962 -
Section 104 , 110 , 135(1) .(Para - )

Proclamation under Section 82 Cr.P.C issued
against applicant - carrying 400 gms. foreign
origin gold worth Rs.15,48,000/- - seized under
Customs Act - not declared proclaimed offender
- recovery made on 19.12.2019 - F.I.R lodged
on 10.08.2022 - no explanation for delay in
lodging F.I.R. - non-cognizable, bailable -
maximum punishment up to 3 years - not a
public servant - no other criminal history - coaccused granted bail. (Para - 18)

HELD:-Facts sufficient for making out a case
for granting anticipatory bail to applicant. (Para
- 18)

Anticipatory bail application allowed. (E-7)

List of Cases cited:

## Text

582 INDIAN LAW REPORTS ALLAHABAD SERIES

74.

Accordingly,
the
Civil
Miscellaneous
Anticipatory
Bail
Application Numbers 1518 of 2023, 1523
of 2023, 1602 of 2023, 1611 of 2023, 1617
of 2023, 1636 of 2023, 1638 of 2023 and
1639 of 2023 are allowed. As the applicants
have already furnished bail bonds in
furtherance of the interim orders passed in
their favour, they need not furnish any fresh
bail bonds. The conditions of bail imposed
in the interim orders shall continue to bind
the applicants.
----------
(2023) 9 ILRA 582
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application No. 1981
of 2023
(Under Section 438 Cr.P.C.)

Khalid Anwar @ Anwar Khalid ...Applicant
Versus
C.B.I. ...Respondent

Counsel for the Applicant:
Shitla Prasad Tripathi, Amresh Singh

Counsel for the Respondent:
Anurag Kumar Singh

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120-B, r. w. 419 & 420-
Prevention of Corruption Act, 1988 -
Section 7 (c), 13(1)(a) r. w. 13(2) - The
Code of Criminal Procedure, 1973
-
Section 82 - Proclamation for person
absconding, The Customs Act, 1962 -
Section 104 , 110 , 135(1) .(Para - )

Proclamation under Section 82 Cr.P.C issued
against applicant - carrying 400 gms. foreign
origin gold worth Rs.15,48,000/- - seized under
Customs Act - not declared proclaimed offender
- recovery made on 19.12.2019 - F.I.R lodged
on 10.08.2022 - no explanation for delay in
lodging F.I.R. - non-cognizable, bailable -
maximum punishment up to 3 years - not a
public servant - no other criminal history - coaccused granted bail. (Para - 18)

HELD:-Facts sufficient for making out a case
for granting anticipatory bail to applicant. (Para
- 18)

Anticipatory bail application allowed. (E-7)

List of Cases cited:

1. Lavesh Vs St. (NCT of Delhi), (2012) 8 SCC
730

2. Sanatan Pandey Vs St. of U.P. & anr., 2021
(4) Criminal CC 512

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri. Arpit Chaudhary
Advocate, holding brief of Sri. Shitla
Prasad Tripathi Advocate, the learned
Counsel for the applicant and the learned
Counsel for the respondent - C.B.I. and
perused the record.

2. The instant application has been
filed by the applicant seeking anticipatory
bail
in
F.I.R.
bearing
R.C.
No.
220/2022/E0011-CBI/EO-11/ND,
under
Sections 120-B, read with 419, 420 I.P.C.
and Section 7 (c), 13(1)(a) read with 13(2)
of Prevention of Corruption Act, 1988,
registered at Police Station CBI/EO-II/New
Delhi, District New Delhi.

3. The aforesaid case has been
registered on the basis of an F.I.R. lodged
on 10.08.2022 against 19 named persons,
including the applicant, and some unknown
public servants and private persons, stating
that a written complaint dated 01.07.2022
had been received from the Assistant
Commissioner, Directorate General of
Vigilance, Indirect Taxes and Customs of
9 All. Khalid Anwar @ Anwar Khalid Vs. C.B.I.
583
Lucknow Zonal Unit regarding smuggling
of contraband goods of foreign origin like
gold (5501.99 grams), reputed foreign
brand cigarettes (434400 sticks) and saffron
(30 kgs.).

4. The learned counsel for the
respondent-C.B.I has raised a preliminary
objection that a proclamation under Section
82 Cr.P.C has been issued against the
applicant and, therefore, in view of the law
laid down by the Hon'ble Supreme Court in
Lavesh v. State (NCT of Delhi), (2012) 8
SCC 730, the applicant is not entitled to be
granted anticipatory bail.

5. Section 82 Cr.P.C. reads as follows:
-

82. Proclamation for person
absconding.- (1) If any Court has reason
to believe (whether after taking evidence
or not) that any person against whom a
warrant has been issued by it has
absconded or is concealing himself so that
such warrant cannot be executed, such
Court may publish a written proclamation
requiring him to appear at a specified
place and at a specified time not less than
thirty days from the date of publishing
such proclamation.

(2) The proclamation shall be
published as follows:-

(a) it shall be publicly read in
some conspicuous place of the town or
village in which such person ordinarily
resides;

(b) it shall be affixed to some
conspicuous
part
of
the
house
or
homestead in which such person ordinarily
resides or to some conspicuous place of
such town or village;

(c) a copy thereof shall be affixed
to some conspicuous part of the Court
house;

(ii) the Court may also, if it thinks
fit, direct a copy of the proclamation to be
published in a daily newspaper circulating
in the place in which such person
ordinarily resides.

(3) A statement in writing by the
Court issuing the proclamation to the effect
that the proclamation was duly published
on a specified day, in the manner specified
in clause (i) of sub-section (2), shall be
conclusive evidence that the requirements
of this section have been complied with,
and that the proclamation was published on
such day.

(4)
Where
a
proclamation
published under sub-section (1) is in
respect of a person accused of an offence
punishable under Section 302, 304, 364,
367, 382, 392, 393, 394, 395, 396, 397,
398, 399, 400, 402, 436, 449, 459 or 460 of
the Indian Penal Code (45 of 1860), and
such person fails to appear at the specified
place
and
time
required
by
the
proclamation,
the
Court
may,
after
making such inquiry as it thinks fit,
pronounce him a proclaimed offender and
make a declaration to that effect.

(5) The provisions of sub-sections
(2) and (3) shall apply to a declaration
made by the Court under sub-section (4) as
they apply to the proclamation published
under sub-section (1)."

6. In the present case, a proclamation
under Section 82 (1) Cr.P.C has been issued
on 01.08.2023 requiring the applicant to
appear before the Court on 02.09.2023.
However, there is nothing on record to
584 INDIAN LAW REPORTS ALLAHABAD SERIES
indicate that the proclamation has been
'published' as provided under Sub-section
(1) of Section 82 Cr.P.C., as there is no
material to indicate that the proclamation
was publicly read in some conspicuous
place of the town or village in which the
applicant ordinarily resides or that it has
been affixed to some conspicuous part of
the house or homestead in which the
applicant ordinarily resides or to some
conspicuous place of such town or village
or a copy of the proclamation has been
affixed to some conspicuous part of the
Court house or that it has been published in
a daily newspaper circulating in the place
in which the applicant ordinarily resides,
which are the modes of publication
mandated in Sub-section (2) of Section 82
Cr.P.C.

7. The Court issuing the proclamation
has not made any statement in writing as
provided in Sub-section (3) of Section 82
Cr.P.C. to the effect that the proclamation
was duly published in the manner specified
in clause (i) of sub-section (2).

8. When the proclamation has not
even been published as per the law, the
occasion for the applicant being "declared"
a proclaimed offender under Sub-section
(4) of Section 82 Cr.P.C has not yet arisen.

9. In Lavesh (Supra) the applicant
had been declared a proclaimed offender
and in these circumstances, the Hon'ble
Supreme Court had held that:-

"Normally, when the accused is
"absconding"
and
declared
as
a
"proclaimed offender", there is no question
of granting anticipatory bail. We reiterate
that when a person against whom a
warrant had been issued and is absconding
or concealing himself in order to avoid
execution of warrant and declared as a
proclaimed offender in terms of Section 82
of the Code he is not entitled to the relief of
anticipatory bail."

10. Therefore, as the applicant has not
been declared to be a proclaimed offender
as yet, the bar created by the principle of
law laid down by the Hon'ble Supreme
Court in Lavesh (supra) would not apply to
the present case.

11. The learned counsel for the
respondent
has
relied
upon
another
judgment passed by the Hon'ble Supreme
Court in Sanatan Pandey Vs. State of
Uttar Pradesh and Another, 2021 (4)
CriminalCC 512. In that case, the petitioner
was charged for the offences punishable
under sections 147, 148, 323, 324, 307,
308, 504, 452 I.P.C. The incident took place
on 05.03.2017. A charge-sheet was filed on
20.11.2018. The petitioner had filed an
application under Section 482 Cr.P.C
seeking quashing of the charge-sheet and
this application was dismissed by the High
Court by means of an order dated
10.12.2019.
While
dismissing
the
application under Section 482 Cr.P.C, the
High Court had directed that in case the
petitioner appears and surrenders before the
court within 30 days and applies for bail,
his prayer for bail shall be considered and
during that period, no coercive steps shall
be taken against the applicant. Despite
having taken the benefit of the order dated
10.12.2019, the petitioner did not surrender
and apply for grant of bail. Thereafter, a
non-bailable warrant was issued against
him and proceedings under Section 82
Cr.P.C. were initiated. In this factual
background, the Hon'ble Supreme Court
held that a prima facie case was found
against the petitioner for the aforesaid
offences, charge-sheet has been filed
9 All. Khalid Anwar @ Anwar Khalid Vs. C.B.I.
585
against him and he was absconding.
Therefore, it was not a fit case to grant
anticipatory bail to the petitioner.

12. While dismissing the S.L.P on the
aforesaid grounds, the Hon'ble Supreme
Court observed in Sanatan Pandey (Supra)
that "the court shall not come to rescue or
help of the accused who is not cooperating
the investigating agency and absconding
and against whom not only non-bailable
warrant has been issued but also the
proclamation under Section 82 Cr.P.C has
been issued."

13. It is the rule deducible from the
application of law to the facts and
circumstances of a case which constitutes
its ratio decidendi and not some conclusion
based upon facts, more particularly when
the facts are not even remotely similar. As
the applicant has not been declared to be a
proclaimed offender as yet and the bar
created by the principle of law laid down
by the Hon'ble Supreme Court in Lavesh
(supra) does not apply to the present case, I
reject the preliminary objection raised by
the learned Counsel for the respondent.
Sanatan Pandey (Supra) was decided after
taking into the facts of the case and I also
proceed to examine the merits of the
application.

14. The allegation against the
applicant is that he was carrying 400 gms.
foreign origin gold worth Rs.15,48,000/-
and the same was seized under Section 110
of the Customs Act, 1962.

15. On the same set of allegations, the
Directorate of Revenue Intelligence has
filed a complaint against the applicant.
Section 135(1) of the Customs Act, 1962
provides that in such cases, the accused
shall be punishable with imprisonment for
a term which may extend to three years or
with fine or with both and Section 104 of
the Customs Act, 1962, provides that the
offence
will
be
non-cognizable
and
bailable.

16. The C.B.I. has registered F.I.R. on
the basis of allegations, which are already
the subject matter of a complaint filed by
the Directorate of Revenue Intelligence.
The C.B.I. inter alia alleges commission of
offence under the Prevention of Corruption
Act, 1988 and the applicant is not a public
servant.

17. A co-accused Ajeet Tiwari, from
whom 22,000 sticks of imported cigarettes
were
recovered
has
been
granted
anticipatory bail by means of an order
dated 24.07.2023 passed by this court in
Criminal
Misc.
Anticipatory
Bail
Application No. 664 of 2023.

18. Having considered the aforesaid
facts and circumstances of the case and
keeping in view the fact that the alleged
recovery was made on 19.12.2019 but the
F.I.R has been lodged on 10.08.2022 and
there is no explanation for the delay in
lodging the F.I.R.; that the substantive
offence allegedly committed by the applicant
is non-cognizable, bailable and carries a
maximum punishment of imprisonment upto
3 years; that although the C.B.I. has alleged
commission
of
offences
under
the
Prevention of Corruption Act, 1988, the
applicant is not a public servant; that the
applicant has no other criminal history and
that a co-accused person Ajeet Kumar has
already been granted bail and without
making any observations which may affect
the outcome of the case, I am of the view
that the aforesaid facts are sufficient for
making out a case for granting anticipatory
bail to the applicant.
586 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In view of the above, the
anticipatory
bail
application
of
the
applicants is allowed. In the event of arrest
/ appearance of applicant- Khalid Anwar
Alias Anwar Khalid before the learned
Trial Court in the aforesaid case crime, he
shall be released on bail on his furnishing
personal bond and two solvent sureties,
each in the like amount, to the satisfaction
of
Officer/Court
concerned
on
the
following conditions and subject to any
other conditions that may be fixed by the
Trial Court: -

(i). That the applicant shall
appear before the trial court on each date
fixed,
unless
personal
presence
is
exempted;

(ii). That the applicant 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 or tamper with the
evidence;

(iii). That the applicant shall not
pressurize/
intimidate
the
prosecution
witnes
----------
(2023) 9 ILRA 586
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 107 of 2000

Om Prakash @ Prakash & Anr....Appellants
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri J.P. Awasthi, Sri Anuj Pandey, Sri
Sheikh Wali-Uz Zaman

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860-Section 306-Challenge toConviction-PW2-Raj
Kumar
has
been
declared hostile- PW5 who first informed
the brother of the deceased regarding this
incident, too has not supported the
prosecution case-he has demolished the
theory that the deceased was not good
looking
and
therefore
was
being
maltreated by her husband- he has not
been cross examined by the prosecutionThe
third
witness
,
in
his
chief
examination merely said that deceased
was maltreated because she was not good
looking but he has not stuck to this
version in his cross examination-In the
instant matter, the case of the prosecution
is
that
the
accused
instigated
the
commission of crime- There is not much
substance in the rhetoric of PW1 that
accused
persons
used
to
exhort
deceased's husband to marry again-The
evidence
on
such
theory
is
quite
inadequate
to
brand
it
as
truthfulMoreover there is no evidence to show
that just before the deceased took this
extreme step of taking of her life, there
was some immediate provocation from the
side
of
the
accused
person
which
propelled her to commit suicide- the
prosecution has failed to prove any
proximity between the act of suicide with
the act or conduct or treatment meted out
to the deceased by the accused- Thus, the
prosecution has failed to prove that in fact
she was maltreated or harassed to such an
extent which shall essentially fall within
the
term
of
'instigation'
to
commit
suicide.(Para 1 to 26)

B. To convict a person under Section 306
IPC, there has to be clear mens rea to
commit offence. It also requires an active
act or direct act which leads deceased to
commit suicide finding no other option