# Rahees v. State of U.P

- **Citation:** (2023) 3 ILRA 589
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Crl. Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No. 12334 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahees-v-state-of-u-p-49885
- **Pages:** 3

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 439 - Prevention
of Money Laundering Act, 2002-Sections 3
& 4-the case is relating to the offence of
PMLA wherein the complaint has been
filed by the ED-A some of Rs.k 28.95
crores have already been recovered from
the
applicant
in
furtherance
of
the
proceed of crime-Rigour of Section 45 of
PMLA are satisfied, the applicant has
already served more than half of the
punishment, has not misused the liberty
of interi

## Text

3 All. Rahees Vs. State of U.P.
589
which the question of maintainability was
considered and was answered by the
Division Bench as below:-

"A ''child' and a "child in
conflict with law" as defined under the
Juvenile Justice (Care and Protection of
Children)
Act,
2015
can
file
an
application under Section 438 of the Code
of Criminal Procedure, 1973."

19. In view of the discussion above, I
respectfully disagree with the opinion of
High Court of Bombay. My opinion finds
ample support from the judgment of
Allahabad High Court in Shahaab Ali and
Another vs. State of U.P.; 2020 (2) ADJ
130. I am of the firm view that the Juvenile
Justice Act is a comprehensive legislation
containing all provisions with regard to
children in conflict with law and that the
provisions of Section 438 Cr.P.C. have no
application
being
extraneous
and
incompatible with the scheme as well as
aim and objective sought to be achieved by
the Act.

20. The anticipatory bail application
is dismissed as not maintainable.
----------
(2023) 3 ILRA 589
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No. 12334 of 2022

Rahees ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Vidit Narayan Mishra

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 438 - Indian
Penal Code-1860-Sections 380, 427 &
457-application-rejection-Rs. 17 lac was
looted from the ATM-applicant's name is
disclosed in the confessional statementthough a confession or a statement given
by co-accused may not pass the test of
credible evidence during trial but it
definitely plays a very important role as
far as investigation is concerned-Hence,
Pre-arrest bail to the applicant shall not
only
hamper
proper
and
effective
investigation
but
may
play
role
in
defending
the
real
culprits-More
so,
probability of recovery of rest of the
amount
is
also
ruled
out
in
case
anticipatory bail application is grantedPower u/s 438 Cr.P.C. cannot be utilized
in a routine manner as a substitute for
regular bail.(Para 1 to 8)

The bail application is rejected. (E-6)

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Vidit Narayan Mishra,
learned counsel for the applicant, Sri O.P.
Mishra, learned AGA for the State and
perused the papers on record.

2. The present application has been
moved seeking anticipatory bail in Case
Crime no.255 of 2021, under Sections 380,
427 and 457 I.P.C., P.S.Dankaur, District
Gautam Budh Nagar.

3. As per prosecution case, an A.T.M.
of Punjab National Bank standing at
Bilaspur was ripped open by gas a cutter, in
the night between 13.07.2021/14.07.2021
and cash was stolen from there. On the
590 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of this information an F.I.R. was
registered and investigated upon. Three
persons namely, Nasir, Sahid and Imran
were arrested and cash of about more than
Rs. 80,000/- from each one of them was
recovered by the police. The name of
present applicant has been taken in the
statement of one of the arrested person,
recorded by the police as having been
involved
in
this
incident
and
the
investigation against him is pending.

4. It is contended on behalf of the
applicant that his name is disclosed in the
statement given by one of the arrested
persons on which legally no reliance can be
placed as having a nil evidentiary value. It
is further said that the present applicant has
inimical relation with one of the arrested
person Nasir, therefore, he has taken his
name. He is absolutely innocent and his
liberty deserves to be protected by grant of
anticipatory bail application.

5. The application for anticipatory
bail is opposed with vehemence by the
State following facts and circumstances
have been placed before me in this
connection.

(i). A total of more than 17
Lakhs was looted from the A.T.M. in an
organized manner by cutting the A.T.M.
by a gas cutter. The evidence collected so
far showed that a number of persons were
involved and their names have been
disclosed by the arrested ones.

(ii). It is also argued that though
a confession or a statement given by coaccused may not pass the test of credible
evidence during trial but it definitely
plays a very important role as far as
investigation is concerned.

(iii). It is further argued that the
pre-arrest bail to the applicant shall not
only
hamper
proper
and
effective
investigation but may play role in
defending
the
real
culprits.
The
probability of recovery of rest of the
amount is also ruled out in case
anticipatory bail application is granted at
this stage.

6. Prima facie it does not appear that
he is entangled in this case with the
purpose of bringing disgrace or cause
humiliation to him by having him
arrested in a mala fide manner. It may
also be kept in mind that anticipatory bail
is
an
extraordinary
remedy
to
be
exercised in suitable cases only. The
powers under Section 438 Cr.P.C. cannot
be utilized in a routine manner as a
substitute
for
regular
bail.
This
discretionary power calls for existence of
facts of the kind where the court is
satisfied that its interference is necessary
to further the cause of justice and to
prevent misuse of process of law. Further
where
an
intense
and
skillful
interrogation may have been required for
unearthing the cash stolen and for
effective opening of a case a pre-arrest
bail may not be a conducive step.

7. In view of the facts and
circumstances of the case I do not find it
fit case to grant benefit of anticipatory
bail.

8. Hence the anticipatory bail
application is rejected.

9.

It
is
made
clear
that
observations
made
in
rejecting
anticipatory bail to the applicant shall
not in any way affect the learned trial
Judge in forming his independent
opinion at any stage of the case based
on material before him.
3 All. Shiv Priya Vs. Enforcement Directorate, Lucknow Zone
591
----------
(2023) 3 ILRA 591
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Bail Application No. 12591 of 2022

Shiv Priya ...Applicant
Versus
Enforcement Directorate, Lucknow Zone
 ...Opposite Party

Counsel for the Applicant:
Mohd. Ghayasuddin Khan

Counsel for the Opposite Party:
Rohit Tripathi, Rohit Tripathi

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 439 - Prevention
of Money Laundering Act, 2002-Sections 3
& 4-the case is relating to the offence of
PMLA wherein the complaint has been
filed by the ED-A some of Rs.k 28.95
crores have already been recovered from
the
applicant
in
furtherance
of
the
proceed of crime-Rigour of Section 45 of
PMLA are satisfied, the applicant has
already served more than half of the
punishment, has not misused the liberty
of interim bail granted by the Apex CourtMore so, there is no possibility or
likelihood to conclude the trial with
expedition inasmuch as there are total
150 prosecution witnesses and only two
witnesses have been examined by nowThus, the applicant may be given the
benefit of dictum of Apex Court in K.A.
Najeeb case.(Para 1 to 29)

B. The twin conditions provided u/s 45 of
the 2002 Act, though restrict the right of
the accused to grant of bail, but it cannot
be said that the conditions provided u/s
45 impose absolute restraint on the grant
of bail. The discretion vests in the Court
which is not arbitrary or irrational but
judicial, guided by the principles of law as
provided u/s 45 of the 2002 Act. (Para 18)

The bail application is allowed. (E-6)

List of Cases cited:
1. U.O.I. Vs K.A. Najeeb (2021) 3 SCC 713
2. Ramchand Karunakaran Vs E.D. & anr.. CRLA
No. 1650 of 2022 {SLP (Crl.) No 6061 of 2020}

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri I.B. Singh, learned
Senior Advocate assisted by Sri Amit
Sinha, Sri Aditya Vaibhav Singh and Sri
M.G. Khan, learned counsel for the
applicant and Sri Rohit Tripathi, learned
counsel for the Enforcement Directorate
(E.D.).

2. As per learned counsel for the
applicant, the present applicant (Shiv Priya)
is languishing in jail since 03.12.2019 in
Sessions Case No.1266 of 2020 arising out
of Crime/ ECIR No.06/PMLA/LKZO/ U/s
3/4 of Prevention of Money Laundering
Act, 2002, Police Station-ED/Lucknow
titled as Assistant Director Enforcement
Directorate vs. Ajay Kumar & Ors.,
pending before the learned Special JudgePMLA, Lucknow (U.P.).

3. As per Sri I.B. Singh, learned
Senior Advocate for the applicant, the
present applicant happens to be erstwhile
Director in Amrapali Group of Companies
(here-in-after referred to as "AGC") which
was into real estate and allied business in
Noida/ Greater Noida, Uttar Pradesh. The
role of the present applicant being qualified
Civil Engineer by qualification was limited
to conceiving Architectural Planning and
Engineering thereof and was not involved
in financial planning of the Company. The