# Somdev Sharma v. State of U.P

- **Citation:** (2023) 8 ILRA 674
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-10
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 1775 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/somdev-sharma-v-state-of-u-p-50699
- **Pages:** 10

## Headnote

Law-The
Code
of
Criminal
Procedure,1973-Section- 438 -The Indian
Penal Code- 1860- Sections 409, 420, 467,
468,471 & 120B- An application for grant of
anticipatory bail cannot be rejected on the
ground that the applicant has failed to make out
any exceptional circumstance and the merits of
the application have to be examined so as to
ascertain whether the applicant is entitled to be
granted anticipatory bail or not- Section 46 of
the Cr.P.C., which lays down the procedure of
arrest of persons, does not contain any
provision mandating prior sanction of the St.
Government and an information of the sanction
being sent to the accused, so that he may
approach the Court for obtaining an order of
pre-arrest bail.

Interim anticipatory bail granted. (E-15)

List of Cases cited:

## Text

674 INDIAN LAW REPORTS ALLAHABAD SERIES
subsequently
regarding
presence
of
independent witnesses.

12. Having considered the aforesaid
facts and circumstances of the case and
keeping in view the fact that the FIR was
lodged on 19.07.2016 alleging that certain
recoveries made from the applicant's
polisher in furtherance of an information
received from a mukhbir; that although the
FIR mentions that a large crowd had
gathered at the time of recovery, no
independent person has witnessed the
alleged recovery; that the investigation
already stands concluded and the charge
sheet has been submitted way back in the
year 2017, I am of the view that the
aforesaid facts are sufficient for grant of
anticipatory bail to the applicant.

13. In view of the above, the
anticipatory
bail
application
of
the
applicant is allowed. In the event of arrest /
appearance of applicant - Dharmapal
Gautam Alias Bhikhari Gautam before
Station House Officer / the learned Trial
Court in the aforesaid case, he shall be
released on bail on his furnishing a
personal bond and two sureties, each in the
like
amount,
to
the
satisfaction
of
S.H.O./Court concerned on the following
conditions and subject to any other
conditions that may be fixed by the Trial
Court:

(i) the applicant shall not tamper with
the prosecution evidence;

(ii) the applicant shall not pressurize
the prosecution witnesses;

(iii) the applicant shall appear on each
and every date fixed by the trial court.
----------
(2023) 8 ILRA 674
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW10.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application No. 1775
of 2023
(U/s 438 Cr.P.C)

With
Crl. Misc. Anticipatory Bail Application No. 1777
of 2023
(U/s 438 Cr.P.C)

Somdev Sharma ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Amarjeet Singh Rakhra, Bashisth Muni Mishra

Counsel for the Respondent:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure,1973-Section- 438 -The Indian
Penal Code- 1860- Sections 409, 420, 467,
468,471 & 120B- An application for grant of
anticipatory bail cannot be rejected on the
ground that the applicant has failed to make out
any exceptional circumstance and the merits of
the application have to be examined so as to
ascertain whether the applicant is entitled to be
granted anticipatory bail or not- Section 46 of
the Cr.P.C., which lays down the procedure of
arrest of persons, does not contain any
provision mandating prior sanction of the St.
Government and an information of the sanction
being sent to the accused, so that he may
approach the Court for obtaining an order of
pre-arrest bail.

Interim anticipatory bail granted. (E-15)

List of Cases cited:

1. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr, (2020) 5 SCC 1

2. Prem Shankar Prasad Vs St. of Bihar & ors,
2021 SCC OnLine SC 955
8 All. Somdev Sharma Vs. State of U.P.
675
3. Adri Dharan Das Vs St. of W.B., (2005) 4 SCC
303

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

1. Heard Sri Amarjeet Singh Rakhra,
learned counsel for the applicant, Sri Rao
Narendra Singh, learned A.G.A.-I for the
State and perused the records.

2. Both the aforesaid applications
have been filed seeking anticipatory bail in
F.I.R. bearing Case Crime No.0027 of
2021, under Sections 409, 420, 467, 468,
471, 120B I.P.C., registered at Police
Station S.I.T., District Lucknow (Rural).

3. At the outset, Sri Rao Narendra
Singh, the learned A.G.A. I, has raised
preliminary
objections
against
the
applications on two grounds - (i) that an
application for anticipatory bail should not
be entertained ordinarily as a regular
application for bail and it can only be
entertained if there are some exceptional
circumstances
justifying
exercise
the
extraordinary jurisdiction of granting prearrest bail and there are no exceptional
circumstances in the present case; (ii) that
the applicants are not named in the F.I.R.
and he has instructions that their names
have not surfaced in the investigation
carried out till date and, therefore, there is
no reasonable apprehension of arrest of the
applicants. Sri. Rao Narendra Singh has
further submitted that as a matter of
practice even if something comes to light
against a person, he/she is not arrested
without obtaining permission from the
State-Government and in case a need is felt
for arrest of the applicants, the practice
would be followed. He has relied on the
Judgments of the Supreme Court in the
case of Sushila Aggarwal & Others
versus State (NCT of Delhi) & Another,
(2020) 5 SCC 1 and Prem Shankar
Prasad versus State of Bihar & Others,
2021 SCC OnLine SC 955.

4. In support of the first objection, the
learned A.G.A. - I has relied upon the
following passages from the judgment of
the Hon'ble Supreme Court in Sushila
Aggarwal & Others versus State (NCT of
Delhi) & Anr, (2020) 5 SCC 1: -

"7.2. While considering the issues
referred to a larger Bench, referred to
hereinabove,
the
decision
of
the
Constitution Bench of this Court in
Gurbaksh Singh Sibbia (1980) 2 SCC 565
is required to be referred to and considered
in
detail.
The
matter
before
the
Constitution Bench in Gurbaksh Singh
Sibbia arose out of the decision of the Full
Bench of the Punjab and Haryana High
Court. The High Court rejected the
application for bail after summarising,
what according to it was the true legal
position, thus : (Gurbaksh Singh Sibbia
versus State of Punjab, 1977 SCC OnLine
P&H 157)

"(1) The power under Section 438,
Criminal Procedure Code, is of an
extraordinary character and must be
exercised sparingly in exceptional cases
only;

(2) Neither Section 438 nor any other
provision of the Code authorises the grant
of blanket anticipatory bail for offences not
yet committed or with regard to accusations
not so far levelled.

(3) The said power is not unguided
or uncanalised but all the limitations
imposed in the preceding Section 437, are
implicit therein and must be read into
Section 438.

(4) In addition to the limitations
mentioned in Section 437, the petitioner
must make out a special case for the
676 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise of the power to grant anticipatory
bail.

(5) Where a legitimate case for the
remand of the offender to the police custody
under Section 167(2) can be made out by
the investigating agency or a reasonable
claim to secure incriminating material from
information likely to be received from the
offender under Section 27 of the Evidence
Act can be made out, the power under
Section 438 should not be exercised.

(6) The discretion under Section 438
cannot be exercised with regard to offences
punishable with death or imprisonment for
life unless the court at that very stage is
satisfied that such a charge appears to be
false or groundless.

(7) The larger interest of the public
and State demand that in serious cases like
economic
offences
involving
blatant
corruption at the higher rungs of the
executive
and
political
power,
the
discretion under Section 438 of the Code
should not be exercised; and

(8) Mere general allegations of mala
fides in the petition are inadequate. The
court must be satisfied on materials before
it that the allegations of mala fides are
substantial and the accusation appears to
be false and groundless."

5. However, Sri. Rao Narendra Singh
has omitted to notice that the aforesaid
legal position was summarized by the
Punjab and Haryana High Court, and the
judgment relied upon was passed in an
appeal filed against the order passed by the
High Court. While allowing the appeal, the
Hon'ble Supreme Court held that: -

"12.We find ourselves unable to
accept, in their totality, the submissions of
the learned Additional Solicitor General or
the constraints which the Full Bench of the
High Court has engrafted on the power
conferred by Section 438. Clause (1) of
Section 438 is couched in terms, broad
and unqualified. By any known canon of
construction,
words
of
width
and
amplitude ought not generally to be cut
down so as to read into the language of
the statute restraints and conditions which
the legislature itself did not think it proper
or necessary to impose. This is especially
true when the statutory provision which
falls for consideration is designed to
secure a valuable right like the right to
personal
freedom
and
involves
the
application of a presumption as salutary
and deep
grained
in our
criminal
jurisprudence as the presumption of
innocence. Though the right to apply for
anticipatory bail was conferred for the first
time by Section 438, while enacting that
provision the legislature was not writing on
a clean slate in the sense of taking an
unprecedented step, insofar as the right to
apply for bail is concerned. It had before it
two cognate provisions of the Code :
Section 437 which deals with the power of
courts other than the Court of Session and
the High Court to grant bail in nonbailable cases and Section 439 which deals
with the "special powers" of the High
Court and the Court of Session regarding
bail. The whole of Section 437 is riddled
and hedged in by restrictions on the power
of certain courts to grant bail. That section
reads thus:

* * *

The provisions of Sections 437 and
439 furnished a convenient model for the
legislature to copy while enacting Section
438. If it has not done so and has departed
from a pattern which could easily be
adopted with the necessary modifications,
it would be wrong to refuse to give to the
departure its full effect by assuming that it
was not intended to serve any particular or
specific purpose. The departure, in our
8 All. Somdev Sharma Vs. State of U.P.
677
opinion,
was
made
advisedly
and
purposefully : Advisedly, at least in part,
because of the 41st Report of the Law
Commission which, while pointing out the
necessity of introducing a provision in the
Code enabling the High Court and the
Court of Session to grant anticipatory bail,
said in para 39.9 that it had "considered
carefully the question of laying down in the
statute certain conditions under which
alone anticipatory bail could be granted"
but had come to the conclusion that the
question of granting such bail should be
left "to the discretion of the court" and
ought not to be fettered by the statutory
provision itself, since the discretion was
being conferred upon superior courts
which
were
expected
to
exercise
it
judicially. The legislature conferred a wide
discretion on the High Court and the
Court of Session to grant anticipatory bail
because it evidently felt, firstly, that it
would be difficult to enumerate the
conditions under which anticipatory bail
should or should not be granted and
secondly, because the intention was to
allow the higher courts in the echelon a
somewhat free hand in the grant of relief
in the nature of anticipatory bail. That is
why, departing from the terms of Sections
437 and 439, Section 438(1) uses the
language that the High Court or the Court
of Session "may, if it thinks fit" direct that
the applicant be released on bail. Subsection (2) of Section 438 is a further and
clearer
manifestation
of
the
same
legislative
intent
to
confer
a
wide
discretionary power to grant anticipatory
bail. It provides that the High Court or the
Court of Session, while issuing a direction
for the grant of anticipatory bail, "may
include such conditions in such directions
in the light of the facts of the particular
case, as it may think fit", including the
conditions which are set out in clauses (i)
to (iv) of sub-section (2). The proof of
legislative intent can best be found in the
language which the legislature uses.
Ambiguities can undoubtedly be resolved
by resort to extraneous aids but words, as
wide and explicit as have been used in
Section 438, must be given their full effect,
especially when to refuse to do so will
result in undue impairment of the freedom
of the individual and the presumption of
innocence. It has to be borne in mind that
anticipatory bail is sought when there is a
mere apprehension of arrest on the
accusation
that
the
applicant
has
committed a non- bailable offence. A
person who has yet to lose his freedom by
being arrested asks for freedom in the event
of arrest. That is the stage at which it is
imperative to protect his freedom, insofar
as one may, and to give full play to the
presumption that he is innocent. In fact, the
stage at which anticipatory bail if generally
sought
brings
about
its
striking
dissimilarity with the situation in which a
person who is arrested for the commission
of a non-bailable offence asks for bail. In
the latter situation, adequate data is
available to the court, or can be called for
by it, in the light of which it can grant or
refuse relief and while granting it, modify it
by the imposition of all or any of the
conditions mentioned in Section 437."

(Emphasis supplied)

6. The Hon'ble Supreme Court
disapproved the condition no. 1 imposed by
the Full Bench of Punjab and Haryana High
Court that the power under Section 438,
Criminal Procedure Code, is of an
extraordinary
character
and
must
be
exercised sparingly in exceptional cases
only and held that: -

"22.By proposition No. 1 the High
Court says that the power conferred by
678 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 438 is "of an extraordinary
character and must be exercised sparingly
in exceptional cases only". It may perhaps
be right to describe the power as of an
extraordinary character because ordinarily
the bail is applied for under Section 437 or
Section 439. These sections deal with the
power to grant or refuse bail to a person
who is in the custody of the police and that
is the ordinary situation in which bail is
generally applied for. But this does not
justify the conclusion that the power must
be exercised in exceptional cases only,
because it is of an extraordinary character.
We will really be saying once too often that
all discretion has to be exercised with care
and
circumspection,
depending
on
circumstances justifying its exercise. It is
unnecessary to travel beyond it and subject
the wide power conferred by the legislature
to a rigorous code of self-imposed
limitations."

* * *

33.We would, therefore, prefer to leave
the High Court and the Court of Session to
exercise their jurisdiction under Section
438 by a wise and careful use of their
discretion which, by their long training and
experience, they are ideally suited to do.
The ends of justice will be better served by
trusting these courts to act objectively and
in consonance with principles governing
the grant of bail which are recognised over
the years, than by divesting them of their
discretion
which
the
legislature
has
conferred upon them, by laying down
inflexible rules of general application. It is
customary, almost chronic, to take a statute
as one finds it on the ground that, after all,
"the legislature in its wisdom" has thought
it fit to use a particular expression. A
convention may usefully grow whereby the
High Court and the Court of Session may
be trusted to exercise their discretionary
powers in their wisdom, especially when
the discretion is entrusted to their care by
the legislature in its wisdom. If they err,
they are liable to be corrected."

7. Therefore, the position in law is
that an application for grant of anticipatory
bail cannot be rejected on the ground that
the applicant has failed to make out any
exceptional circumstance and the merits of
the application have to be examined so as
to ascertain whether the applicant is
entitled to be granted anticipatory bail or
not. Accordingly, the first preliminary
objection raised by the learned A.G.A.-I,
which is based on a mis-reading of the law
laid down by the Hon'ble Supreme Court,
is rejected.

8. In support of the second limb of his
preliminary objection, that an application
for grant of anticipatory bail cannot be
entertained
unless
there
is
a
real
apprehension of the applicant's arrest, Sri.
Rao Narendra Singh has relied upon the
decision in Sushila Aggarwal v. State
(NCT of Delhi), (2020) 5 SCC 1, wherein
the two questions being decided by the
Hon'ble Supreme Court were as follows: -

"(1) Whether the protection granted to
a person under Section 438 CrPC should
be limited to a fixed period so as to enable
the person to surrender before the trial
court and seek regular bail.

(2) Whether the life of an anticipatory
bail should end at the time and stage when
the accused is summoned by the court."

9.

The
question
whether
the
anticipatory bail application can only be
entertained in 'exceptional circumstances'
or 'where there is a serious apprehension of
arrest' was not involved in Sushila
Aggarwal
(supra).
However,
it
was
observed in Sushila Aggarwal that: -
8 All. Somdev Sharma Vs. State of U.P.
679

"35. Section 438(1) of the Code lays
down a condition which has to be satisfied
before anticipatory bail can be granted.
The applicant must show that he has
"reason to believe" that he may be arrested
for a non-bailable offence. The use of the
expression "reason to believe" shows that
the belief that the applicant may be so
arrested must be founded on reasonable
grounds. Mere 'fear' is not 'belief", for
which reason it is not enough for the
applicant to show that he has some sort of
a vague apprehension that some one is
going to make an accusation against him,
in pursuance of which he may be arrested.
The grounds on which the belief of the
applicant is based that he may be arrested
for a non-bailable offence, must be capable
of being examined by the court objectively,
because it is then alone that the court can
determine whether the applicant has reason
to believe that he may be so arrested.
Section
438(1),
therefore,
cannot
be
invoked on the basis of vague and general
allegations, as if to arm oneself in
perpetuity
against
a
possible
arrest.
Otherwise, the number of applications for
anticipatory bail will be as large as, at any
rate, the adult populace. Anticipatory bail
is a device to secure the individuals liberty;
it is neither a passport to the commission of
crimes nor a shield against any and all
kinds of accusations, likely or unlikely).

10. The analysis of the facts of the
case and the submissions advanced before
the Hon'ble Supreme Court in Sushila
Aggarwal starts from para 45 of the
judgment after putting in a heading -
"Analysis and Conclusions" and the final
conclusions drawn by the Hon'ble Supreme
are as follows: -

"FINAL CONCLUSIONS OF THE
COURT

91.
In
view
of
the
concurring
judgments of M.R. Shah, J. and of S.
Ravindra Bhat, J. with Arun Mishra, Indira
Banerjee and Vineet Saran, JJ. agreeing
with them, the following answers to the
reference are set out:

91.1. Regarding Question 1, this Court
holds that the protection granted to a
person under Section 438 CrPC should not
invariably be limited to a fixed period; it
should enure in favour of the accused
without any restriction on time. Normal
conditions under Section 437(3) read with
Section 438(2) should be imposed; if there
are specific facts or features in regard to
any offence, it is open for the court to
impose
any
appropriate
condition
(including fixed nature of relief, or its being
tied to an event), etc.

91.2. As regards the second question
referred to this Court, it is held that the life
or duration of an anticipatory bail order
does not end normally at the time and stage
when the accused is summoned by the
court, or when charges are framed, but can
continue till the end of the trial. Again, if
there are any special or peculiar features
necessitating the court to limit the tenure of
anticipatory bail, it is open for it to do so."

11. After giving answer to the two
questions that were referred to the larger
Bench,
the
Hon'ble
Supreme
Court
clarified that certain points need to be kept
in mind by the Courts dealing with the
applications under Section 438 Cr.P.C., the
first of which only is relevant for the
present case, which is as follows: -

92.1. Consistent with the judgment in
Gurbaksh Singh Sibbia v. State of Punjab,
when a person complains of apprehension
of arrest and approaches for order, the
application should be based on concrete
facts (and not vague or general allegations)
680 INDIAN LAW REPORTS ALLAHABAD SERIES
relatable to one or other specific offence.
The application seeking anticipatory bail
should contain bare essential facts relating
to the offence, and why the applicant
reasonably apprehends arrest, as well as his
side of the story. These are essential for the
court
which
should
consider
his
application, to evaluate the threat or
apprehension, its gravity or seriousness and
the appropriateness of any condition that
may have to be imposed. It is not essential
that an application should be moved only
after an FIR is filed; it can be moved
earlier, so long as the facts are clear and
there is reasonable basis for apprehending
arrest."

12. In Prem Shankar Prasad versus
State of Bihar & Ors, 2021 SCC OnLine
SC 955, the Hon'ble Supreme Court
referred to an earlier judgment in the case
of Adri Dharan Das v. State of W.B.,
(2005) 4 SCC 303, wherein it was held as
under:-

"16. Section 438 is a procedural
provision which is concerned with the
personal liberty of an individual who is
entitled to plead innocence, since he is not
on the date of application for exercise of
power under Section 438 of the Code
convicted for the offence in respect of
which he seeks bail. The applicant must
show that he has 'reason to believe' that
he may be arrested in a nonbailable
offence. Use of the expression 'reason to
believe' shows that the belief that the
applicant may be arrested must be
founded on reasonable grounds. Mere
'fear' is not 'belief' for which reason it is
not enough for the applicant to show that
he has some sort of vague apprehension
that someone is going to make an
accusation against him in pursuance of
which he may be arrested. Grounds on
which the belief of the applicant is based
that he may be arrested in non-bailable
offence
must
be
capable
of
being
examined. If an application is made to the
High Court or the Court of Session, it is for
the court concerned to decide whether a
case has been made out for granting of the
relief sought. The provisions cannot be
invoked after arrest of the accused. A
blanket order should not be generally
passed. It flows from the very language of
the section which requires the applicant to
show that he has reason to believe that he
may be arrested. A belief can be said to be
founded on reasonable grounds only if
there is something tangible to go by on the
basis of which it can be said that the
applicant's apprehension that he may be
arrested is genuine. Normally a direction
should not issue to the effect that the
applicant shall be released on bail
'whenever arrested for whichever offence
whatsoever'. Such 'blanket order' should
not be passed as it would serve as a blanket
to cover or protect any and every kind of
allegedly unlawful activity. An order under
Section 438 is a device to secure the
individual's liberty, it is neither a passport
to the commission of crimes nor a shield
against any and all kinds of accusations
likely or unlikely. On the facts of the case,
considered in the background of the legal
position set out above, this does not prima
facie appear to be a case where any order
in terms of Section 438 of the Code can be
passed."

(Emphasis supplied)

13. Replying to the aforesaid
submission, Sri. Amarjeet Singh Rakhra,
the learned counsel for the applicant has
submitted that the case has been registered
on the basis of an F.I.R. lodged on
20.07.2021 against 14 sets of persons - 12
sets of office bearers of various Educational
8 All. Somdev Sharma Vs. State of U.P.
681
Institutes, and two government officials and
unknown employees of the Institutions and
officers of the Government, stating that in
furtherance
of
a
complaint
dated
19.06.2019, a Special Investigation Team
was constituted, which conducted an
enquiry and submitted a report to a
Committee constituted by the Government
and in the meeting of the Committee held
on 27.05.2021 further action was directed.
Upon a scrutiny of all the documentary
evidence collected during enquiry and
physical verification of the students it came
to light that although there was a complaint
of embezzlement of Rs.200 crores in
payment
of
scholarship
to
students
belonging to Schedule Castes and Schedule
Tribes categories, merely Rs. 58 crores had
been drawn by the concerned Institutes.

14. The first group of accused-persons
is "Kapil Garg Registrar, Officers and other
employees". The address of the group of
persons arrayed as accused No.1 is "B.L.S.
Institute of Management, Shahibabad,
Ghaziabad, U.P." Regarding the BLS
Institute, it is alleged that during enquiry it
was found that scholarships were drawn
regarding two students, Monica Gautam
and Brijendra Kumar, and it transpired that
both aforesaid students had not taken
admission in the Institution and scholarship
in respect of them was claimed in a
fraudulent
manner.
The
applicant
in
Criminal Miscellaneous Anticipatory Bail
Application No. 1775 of 2023 is the
Chairman of the Society, which manages
B.L.S. Institute of Management and the
applicant
in
Criminal
Miscellaneous
Anticipatory Bail Application No. 1775 of
2023 is an Office Secretary in B.L.S.
Institute of Management.

15.

The
applicants
had
filed
applications
seeking
anticipatory
bail
before the Sessions Court, which have been
rejected by means of an orders dated
27.07.2023 passed by Special Judge, C.B.I.
(Central), Lucknow by holding that the
investigation is still going on and the
offence falls in the category of serious
economic offences, which has wide impact
on the society at large and there is no
ground for grant of anticipatory bail to any
of
the
applicants.
Anticipatory
bail
applications have not been rejected on the
ground that there is no apprehension of
arrest of the applicants.

16. The Proviso appended to sub
Section 1 of Section 438 Cr.P.C. provides
that "where the High Court or, as the case
may be, the Court of Session, has not
passed any interim order under this subsection or has rejected the application for
grant of anticipatory bail, it shall be open
to an officer-in-charge of a police station to
arrest, without warrant the applicant, if
there are reasonable grounds for such
arrest."

17. The learned counsel for the
applicant has submitted that the Registrar
of B.L.S. Institute of Management Kapil
Garg has been granted anticipatory bail by
means of the order dated 13.07.2023 passed
by this Court in Criminal Misc Anticipatory
Bail Application No.1566 of 2023. The
applicants'
applications
for
grant
of
anticipatory bail having been rejected by
the Court of Session, under the statutory
prescription it is open for the police to
arrest the applicants without warrant. He
has further submitted that the practice
pointed out by the learned A.G.A. will not
prevail upon and override the statutory
prescription.

18. I have considered the rival
submissions advanced by the learned
682 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel on the point of maintainability of
the application. The expression 'any person
has reason to believe' occurring in Section
438 Cr.P.C. has to be interpreted keeping in
view whether any reasonable person of
ordinary prudence, placed in the situation
of the person seeking anticipatory bail,
would have reason to believe, that there is
an
apprehension
of
arrest
in
the
circumstances of the case.

19. The facts of the case indicate that
although ordinarily the accused persons are
named individually in the First Information
Reports, in the present case the accused
persons have been arrayed in sets and the
first set of accused persons is "Kapil Garg
Registrar, Officers and other employees".
The address of the group of persons arrayed
as accused No.1 is "B.L.S. Institute of
Management,
Shahibabad,
Ghaziabad,
U.P." This leaves the prosecution free with
a long rope to include any person working
for the Institute.

20. In para 42 of the affidavit filed in
support of the applications, the applicants
have stated that the Investigating Agency has
not only got the applicants' statements
recorded on more than one occasions, but has
also repetitively sought information from the
applicants telephonically. It has specifically
been stated that after grant of anticipatory bail
to the co-accused Kapil Garg, who is the
Registrar of the Institute, the applicants were
asked to supply certain information on the
same day or to face the consequences. The
applicants have pleaded that they apprehend
foul play and they may be arrested.

21. Having considered the facts of the
case in light of the law laid down by the
Hon'ble
Supreme
Court
in
Sushila
Aggarwal and Prem Shankar Prasad
(Supra) I am of the view that the aforesaid
facts give rise to circumstances indicating
that the applicant have a reason to believe
that they may be arrested. The applicants
do not have a vague apprehension that
someone is going to make an accusation
against him in pursuance of which he may
be arrested. The belief of the applicants is
founded on reasonable grounds and it is not
a mere 'fear'.

22. One more thing is significant, that
although
the
learned
A.G.A.
has
vehemently opposed the maintainability of
the application on the preliminary ground
that presently there is no apprehension of
the applicants being arrested, upon being
asked whether he can make a statement that
the applicants would not be arrested in
future also, he stated that he has no such
instructions. He merely stated that in case a
need of the applicants' arrest arises in
future, the proposal of their arrest will first
be sent to the State Government. However,
he could not point out any provision of law
mandating this procedure.

23. One of the co-accused persons
Kapil
Garg
having
been
granted
anticipatory bail by this Court and the
applicants'
applications
for
grant
of
anticipatory bail having been rejected, it is
open for the police to arrest the applicant
without warrant in view of the statutory
provision
contained
in
the
Proviso
appended to sub Section (1) of Section 438
Cr.P.C.

24. Section 46 of the Cr.P.C., which
lays down the procedure of arrest of
persons, does not contain any provision
mandating prior sanction of the State
Government and an information of the
sanction being sent to the accused, so that
he may approach the Court for obtaining an
order of pre-arrest bail.
8 All. Mohd. Adeeb Ahmad Vs. State of U.P. & Anr.
683

25. Therefore, the second limb of the
preliminary objection, that there is no real
apprehension of the applicants' arrest, is
also rejected.

26. The application requires to be
considered on its merits.

27. The learned A.G.A prays for and
is grated two weeks' time to file a counter
affidavit. One week's time thereafter shall
be available to the applicant for filing
rejoinder affidavit, if he so desires.

28. List this case in the week
commencing 04.09.2023.

29. Having considered the aforesaid
facts and circumstances of the case and
keeping and view the fact that the
complaint lodged in the year 2019 allege
embezzlement of Rs. 200 crores; that after
enquiry, the S.I.T. found that the total
disbursal of scholarship to students of the
Institutes in question was Rs. 58 crores;
that the FIR alleges wrongful drawl of
scholarship in respect of two students to the
tune of approximately 2.25 lakhs; that it
appears that the amount was actually paid
to the students through bank-drafts, and
when the students did not continue with
their studies in the Institution in question,
the amount was repaid to the Department;
that as per the averments made in the F.I.R.,
enquiry has already been completed and all
the documentary and other evidence have
already been collected, and that the
applicants are the Chairman of the Society
running the educational institution and an
Office Secretary of the Institution and they
have no criminal history and Registrar of
the Institution has been granted anticipatory
bail by this Court, I am of the view that
pending final disposal of the instant
anticipatory bail application the applicants
are also entitled to be granted interim
anticipatory bail. As such, as an interim
measure, it is directed that till the next date
of listing, in the event of arrest / appearance
of applicants before the learned Trial Court,
they
shall
be
released
on
interim
anticipatory bail in the aforesaid case crime
on furnishing a personal bond and two
sureties each in the like amount, to the
satisfaction of S.H.O./Court concerned on
the following conditions and subject to any
other conditions that may be fixed by the
Trial Court: -

(i). The applicant will co-operate with
the investigation.

(ii) The applicant will 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 will not leave
India without the previous permission of
the court;

(iv) The applicant will appear before
the trial court on each date fixed unless
personal presence is exempted.
----------
(2023) 8 ILRA 683
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application No. 1835
of 2023
(U/s 438 Cr.P.C)

Mohd. Adeeb Ahmad ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant: