Anticipatory bail can be granted even when a warrant is issued, provided the prosecution fails to substantiate allegations against the applicant.

ORDER :

HASMUKH D. SUTHAR, J.

RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent – State of Gujarat.

2. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “ BNSS ”), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. 11209017230816 of 2023 registered with Himmatnagar Rural Police Station, Dist. Sabarkantha, for the offences punishable under Sections 465 , 468 and 471 of Indian Penal Code, 1860 and Sections 65(a) and 65(e) of the Gujarat Prohibition Act .

3. Learned advocate for the applicant submits that the applicant is innocent and has nothing to do with the offence. The applicant has no past antecedent. Based on the statement of the co-accused, he has been arraigned as an accused. The applicant was never went to the place where liquor was loaded nor he knows the accused who was arrested. Prosecution has failed to prove allegation against the applicant. Therefore, custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.

4. Learned Additional Public Prosecutor appearing on behalf of the respondent – State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He has submitted that warrant under Section 70 of Cr.P.C has been issued against the applicant and hence, the applicant is involved in the illegal activities. In such circumstances, custodial interrogation of the applicant is required.

5. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.

(1) Name of the applicant itself is in dispute that he is Pratap or Hitesh.

(2) Warrant under Section 70 has been issued. But in view of the law laid down in case of Asha Devi Vs. State of UP , merely issuance of warrant does not bar to exercise jurisdiction under Section 438 of the Cr.P.C.

(3) Considering the facts on hand, specific allegation against the applicant qua identity and use of forged number plate is concerned, perusing the appreciation of evidence in C.C No.898/2024, prosecution failed to prove the offence against the applicant. Even Investigating ofÏcer has deposed before the Court that during investigation, he failed to arrest the accused from the spot and no any evidence to prove the allegation of forgery. Considering the investigation, it was not revealed that number flat of the vehicle was changed, more particularly the deposition of IO below Exh:24, said fact is revealed.

(4) Applicant has no past antecedent.

6. Considering the aforesaid aspects and the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibb