Laxman Gurjar vs State of M.P.

G.S. Solanki, J.—Heard on the application u/s 438 Cr.P.C. for grant of anticipatory bail. Applicant apprehends his arrest in connection with Crime No. 163/ 2010 registered under Sections 302 and 201/34 of IPC at police-station-Narsingh-Garh district Rajgarh (MP).

Learned counsel for the applicant submitted that the applicant has been falsely implicated in this case. There is no direct evidence in this case. It is only alleged that he was last seen together on 09.05.2010 and dead body was recovered on 11.05.2010. Therefore, no prima facie case against this applicant is made out. The trial would take considerable time for its conclusion. Therefore, he prays for grant of anticipatory bail.

Learned Government Advocate appearing for respondent/ State has opposed the prayer for bail.

I have perused the case-diary. Though there is no direct evidence in this case but there is strong circumstances against this applicant that he was last seen together by a witness Mangilal. The applicant has not come u/s 439 Cr.P.C. The applicant is praying for bail u/s 438 Cr.P.C. This section is introduced in the Code for providing protection to the person who is politically falsely implicated in the criminal cases on the basis of rivalry. This provision for the first time was introduced in the Code of Criminal Procedure, 1953 on the basis of observation in 41st Law Commission Report of September, 1969. The recommendations in this regard is as follows:

The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, for otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

The suggestion of Law Commission was accepted by Government of India and Clause 447 was incorporated in the draft Bill of Code of Criminal Procedure, 1970. The Law Commission of India in its 48th Report, adverting to this aspect, expressed the view.

The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

On perusal of aforesaid recommendations of 41st and 48th report of Law Commission, which clearly indicate that this provision was recommended to curb the tendency of false implication on the basis of rivalry for the purpose of disgracing the person by getting them detained in jail for some days. Further, Law Commission in it''s 48th report expected that this provision would be applied in very exceptional cases.

The facts, in the instant case, are not in exceptional category because allegation made against this applicant is for heinous offence u/s 302 of IPC and there is prima facie evidence that the applicant was last seen together with deceased Bhagirath who was found dead, thereafter. On due consideration of all the facts and circumstances of the case along with the contentions raised on behalf of the parties, without commenting on the merits of the case, I am not inclined to enlarge the applicant on anticipatory bail. Therefore, the application filed u/s 438 Cr.P.C. is hereby dismissed.

C.C. as per rules.