Akash vs State Of Madhya Pradesh

S.A.Dharmadhikari, J

In pursuance of the directions issued by the Apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19

outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government.

Heard, learned counsel for the parties.

Case diary perused.

This is the first application under Section 438 of the Code of Criminal Procedure filed for grant of anticipatory bail.

Applicant apprehends arrest in connection with Crime No.202/2020 registered at Police Station Mau, District Bhind for the offences punishable under

Section 302/34 of IPC and Section 25, 27 of Arms Act.

The allegation against the applicant and co-accused person, in short, is that on 26.07.2020 at about 7.00 in the morning when the complainant reached

his shop and he was about to open the shop, he heard the noise of gun shot inside the shop and thereafter the co-accused Anand Yadav armed with

Katta and the another person armed with an axe came outside and said that where is your brother Hariom, we have already murdered Saroj. At that

time, Hariom came on the motorcycle and these two persons started attacking him due to which he sustained injuries and he died. On the basis of the

aforesaid, crime has been registered.

Learned counsel for the applicant submits that applicant has falsely been implicated in the case. He has been made an accused on the basis of memo

under Section 27 of the Evidence Act of the co-accused Anand Yadav. There is no other admissible evidence against the present applicant. It is

further submitted that the applicant is ready to abide all the conditions which may be imposed on him. Learned counsel for the applicant further

submitted that in view of COVID-19 outbreak, detention of applicant in already congested prisons may be detrimental. It is submitted that applicant is

permanent resident of District Datia and there is no likelihood of absconsion or tampering with the prosecution evidence. With the aforesaid

submissions prayer for grant of anticipatory bail is made.

In response, learned Additional Advocate General for the respondent/State has opposed the anticipatory bail application. He further pointed out from

the diary that the applicant is absconding and proceeding under Section 82 and 83 of the Cr.P.C. is already is over and the applicant has been made

absconder. Challan has been filed under Section 299 of Cr.P.C. More over, a prize of Rs.5,000/-has also been announced for the present applicant.

Therefore, on the basis allegation and material available on record no case for grant of anticipatory bail is made out.

This Court in the case of Bhupendra Singh Vs. State of M.P. vide order dated 21.12.2017 in M.Cr.C. 24897/2017 has held that after filing of charge-

sheet showing the applicant absconding, the application under Section 438 of Cr.P.C. is not maintainable. The said order has been affirmed by the

Supreme Court vide order dated 27.03.2018 passed in the aforesaid case in SLP (Cri) No.2569/2018. It is also settled in law that if the proceedings

under Section 82 and 83 of the Cr.P.C. have been initiated and the applicant having been found absconder, the application under Section 438 of

Cr.P.C. is not maintainable.

Further in the light of allegation made against the present applicant as well as the aforesaid preposition of law, this Court is of the considered opinion

that it is not a fit case for grant of anticipatory bail.

Accordingly, application fails and is hereby dismissed.