Anticipatory bail cannot be challenged through a petition under Article 227; it must follow the procedure outlined in Section 439(2) Cr.P.C.

JUDGMENT :

Saurabh Srivastava, J.

1. Heard Sri Deepak Pandey, learned counsel for petitioner, Sri Anand Sagar Dubey, learned AGA-I for respondent no. 1 and Sri Rohan Gupta, learned counsel for respondent no. 2.

2. After hearing in detail, while reserving the judgment, all the learned counsels appearing for the parties were requested to submit their written arguments along with relied upon judgments within a week and the same has been received and are available in the records.

Petitioner’s submissions

3. Present writ petition has been preferred for challenging the order dated 17.05.2024 passed by learned court of Additional District and Sessions Judge-II/Special Judge, SC/ST Act, Gautam Buddha Nagar through which anticipatory bail application under Section 438 Cr.P.C. has been allowed and bail has been extended on certain conditions which are mentioned in the order which impugned the present petition and are five in numbers.

4. Learned counsel for the petitioner while assailing the order dated 17.05.2024 submitted that despite the bailable warrants having been issued against the respondent no. 2, the anticipatory bail application preferred at the behest of respondent no. 2 has been allowed and the same is in violation of the verdict rendered by Hon'ble Apex Court in case of Srikant Upadhyay and others vs. State of Bihar and others, 2024 (3) SCR 421

5. Learned counsel for the petitioner further submitted that although order dated 17.05.2024 is under challenge but a direction contained in the same order through which Inquiry Officer has been directed to re-investigate the role of respondent no. 2 is not under challenge. Substantiating the arguments for not challenging part of the order impugned dated 17.05.2024, learned counsel for the petitioner sought the attention of the Court over the prayer clause which is reproduced herein below:

"(i) to quash the order dated 17.05.2024 only to the extent in so far as it considers the Non Bailable Offences against the respondent no. 2 as Bailable and grants Anticipatory Bail to the respondent no. 2 in contemptuous violation of the Hon'ble Supreme Court's judgment in the case of Srikant Upadhyay & ors. vs. State of Bihar & Anr. (SLP (Cri.) No. 7940 of 2023) [2024] 3 SCR 421."

6. It is also submitted by learned counsel for the petitioner that various grounds have been taken while preferring the instant petition which is squarely covered with the judgment of Srikant Upadhyay (supra) and as such part of the order dated 17.05.2024 except one part of the order dated 17.05.2024 is liable to be set aside.

Respondent’s submissions

7. Per contra, Sri Rohan Gupta, learned counsel appearing on behalf of respondent no. 2 submitted through his written submission that after issuing bailable warrants on dated 12.04.2024 respondent no. 2 appeared in person before learned court concerned by way of preferring anticipatory bail application and the same was rightly allowed vide order dated 17.05.2024 and none of the grounds contained the violation of the terms and conditions which was fixed by learned concerned court while extending bail in favour of the respondent no. 2 and the anticipatory bail can only be denied, if the accused had been absconding despite summons, non-bailable warrants as well as proclamation under Section 82 Cr.P.C. and the order of extension of anticipatory bail granted in favour of respondent no. 2 can only be cancelled when the conditions recorded in the order granting anticipatory bail have been violated or there is substantial evidence to indicate that respondent no. 2 has misused the liberty granted, has obstructed the course of justice or has committed further crimes. However, in the present case, no such incident has occurred and no such evidence has been brought on record to indicate violations of any such conditions which have been laid down by Hon'ble Apex Court from time to time.

8. A judgment of Hon'ble Supreme Court has also been relied by learned counsel for respondent no. 2 i.e. Abdul B