The court clarified that anticipatory bail may be granted under section 438 when no prima facie case exists, despite statutory bars.

ORDER :

Vijay Kumar Shukla, J.

This is second application under section 438 of CRIMINAL PROCEDURE CODE for grant of anticipatory bail to the applicant in connection with Crime No. 307/2020 registered at P. S. Tukoganj, Indore for offence punishable under sections 420, 406 and 34 of INDIAN PENAL CODE and under section 6(1) of the M. P. Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 (hereinafter referred to as “Adhiniyam”). The first application was filed jointly with co-accused with Raghav Sethi vide M.Cr.C. No. 33001/2022. The said application was withdrawn with liberty to file separate application for the applicants. The application was dismissed with the aforesaid liberty. Thereafter the present application has been filed separately on behalf of the applicant Pramod Sethi.

2. An objection has been raised regarding maintainability of anticipatory bail application in view of the provisions of section 14 of Adhiniyam, 2000. The provisions of section 14 of the Act reads as under :—

“14. Anticipatory bail not to be granted. — Notwithstanding anything contained in section 438 of Code of Criminal Procedure 1973 (No. 2 of 1974), no Court shall grant anticipatory bail to any person under the Act.”

3. Counsel for applicant submits that the pari materia provisions under the similar Act in State of Chhattisgarh has been considered by the Division Bench of High Court of Chhattisgarh, Bilaspur in W. P. (Cr.) No. 141/2023 after referring to the various judgments of the Supreme Court in the case of Hema Mishra vs. State of U. P. and ors. , (2014) 4 SCC 453 and also the judgment passed in the case of Prathviraj Chauhan vs. Union of India , (2020) 4 SCC 727 and it has been held that there is no absolute bar for grant of anticipatory bail. The pari materia provision of section 15 of the Chhattisgarh Protection of Depositors Interest Act , 2005 reads as under :—

“15. Anticipatory bail not to be granted. — Notwithstanding anything contained in section 438 of the Code of Criminal Procedure 1973 (No. 2 of 1974), no application for anticipatory bail shall lie for an offence punishable under the Act.”

4. Upon perusal of the provisions of section 14 of M. P. Act of Adhiniyam 2000 and section 15 of Act 2005, it is evident that the provisions are almost pari materia.

5. The relevant paragraphs of the judgment of Division Bench of Chhattisgarh High Court are reproduced as under :—

“12. By virtue of section 15 of the Act of 2005, no application for anticipatory bail would lie for an offence punishable under the Act of 2005, as the provisions of the Act of 2005 would have overriding effect over section 438 of the Criminal Procedure Code. Right of the accused in anticipatory bail is definitely a most essential safeguard for liberty of a person and it is necessary to meet the obvious cases of misuse of police power. Section 15 of the Act of 2005 bars the application of section 438 of the Criminal Procedure Code for grant of anticipatory bail for an offence punishable under the Act of 2005. However, their Lordships of the Supreme Court in umpteen number of cases have held that where prima facie case is not made out, the Court is not bereft of its power to grant benefit of anticipatory bail in appropriate cases of exceptional nature.

13. In the matter of Prathvi Raj Chauhan vs. Union of India and others , (2020) 4 SCC 727 while examining challenge to the constitutionality of section 18-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,