Pre-arrest bail under Section 438 requires balance between individual liberty and societal order; applicant's history and ongoing investigation negated the grant of bail.

JUDGMENT

Amit Mahajan, J. The present petition is filed for grant of pre-arrest bail in FIR No. 167/2022, under Section 397/394 of Indian Penal Code, 1860, registered at Police Station Old Rajinder Nagar.

2. The FIR was registered pursuant to a PCR call vide DD No. 102 dated 09.06.2022 made by one Nitin Dhawan alleging robbery of jewellery items and cash by four armed men who came in white coloured Chevrolet Cruze car bearing No. RJ04CA2541.

3. During the course of investigation, the footage of the CCTV cameras in the vicinity were obtained and the vehicle used for the purpose of robbery was identified. The said vehicle was found to be stolen from Ghaziabad, UP. The two accused persons, namely, Mohammad Mustakeen and Mendi Hasan were arrested and the vehicle used at the time of incident was recovered from their possession. Another co-accused, Mohd. Kashif alias Badshah was arrested on 18.09.2022 on a secret information. The said co-accused, in his disclosure statement, stated that the robbed property was given to the present applicant.

4. Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case. He submits that apart from the disclosure made by the co-accused, there is no other evidence against the applicant.

5. He further submits that the co-accused, on whose disclosure, the name of the applicant came up, has already been granted bail by this Court by order dated 09.12.2022.

6. Learned APP for the State opposes the present application. She submits that the applicant is the receiver of the robbed property and the robbed material is still to be recovered.

7. She further submits that the applicant has been absconding and the proceeding under Section 82 have already been initiated against him.

8. She further submits that the applicant has a history of committing crime and was previously involved in a similar case of robbery.

Reasoning

9. The alleged role of the applicant is not similar to the alleged role of Mohd. Kashif alias Badshah. This Court, while considering the fact that the applicant has already spent four months in custody, and that the only evidence against the applicant was his own disclosure statement, had directed the release of Mohd. Kashif on bail.

10. The present, is not a case of grant of regular bail but is an application under Section 438 of Cr.P.C. The Hon'ble Supreme Court in catena of judgments have categorically held that the power to be exercised under Section 438 of Cr.P.C. are extraordinary and ought not to be exercised in a routine manner. It has been held that in cases where the accused has joined investigation and has fully cooperated with the investigating agency and is not likely to abscond, the custodial interrogation, perhaps, should be avoided. The allegations made against the applicant are serious in nature.

11. He is stated to be in possession of the robbed articles which are yet to be recovered. The applicant had been absconding and, initially, Non-bailable warrants were issued and, thereafter, proceeding under Section 82 of the Cr.P.C. have been initiated. The applicant also has a case history and is found to be involved in another case, being FIR No. 973/2020, under Sections 392/34 of IPC.

12. The Court, while considering the application for bail, has to keep in mind the nature of the charge, the nature of evidence, the severity of the punishment to which the accused may be liable if convicted and also the antecedents of the accused.

13. It is also rational to keep into account the antecedents of the man applying for bail that might suggest that he is likely to commit serious offences while on bail. The Hon'ble Apex Court in the