O R D E R

This is the first application filed under section 438 Cr.P.C.

seeking anticipatory bail by the applicant who is apprehending his arrest in connection with Crime No.459/2014 registered at Police Station, Special Police Establishment, Lokayukta, Indore for offence punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption (PC) Act.

As per the prosecution story, the applicant was appointed as District Registrar on 7.6.1981 by way of direct recruitment through M.P. Public Service Commission. In the year 1985 he was married with Smt. Kalpana Jamod. From November 2005 to April, 2006 he was posted Indore and thereafter, on promotion he was posted as Dy. Commissioner, Gwalior. From 2008 to 2011 he remained posted in Jabalpur and thereafter, during the period from 2012 to 2013 he was posted in Bhopal. In the month of September, 2012 till 17.10.2014 he was posted as Divisional Dy. Commissioner, Excise, Indore. A raid was conducted in his house on 17.10.2014 by the Special Police Establishment, Lokayukta, Indore followed by registration of offence at Crime No.0/87/2014 u/s. 13(1)(e) and 13(2) of the P.C. Act based on disproportionate assets recovered from his house. After calculating the value of the entire properties, investments, expenditure and cash , bank balance etc. during the check period from 1.5.2010 to 17.10.2014 the assets valued at Rs.37,25,969/- was found after deducting the income from the known source of the income and the expenditure which is 22.72% disproportionate.

After completing the investigation, a notice was issued to the applicant for his appearance before the Special Judge on 3.8.2021 at the time of filing of the charge-sheet before the Special Judge (PC Act). Instead of appearing before the Special Judge, the applicant filed an application u/s. 438 of Cr.P.C. seeking anticipatory bail. Vide order dated 5.8.2021, learned Special Judge has dismissed the application and fixed the date for applicant's appearance before the Court on 31.8.2021. On the said date also, the applicant did not appear, hence arrest warrant has been issued against him, hence the present application u/s. 438 of Cr.P.C. for anticipatory bail.

Shri Manu Maheshwari, learned counsel appearing for the applicant, submits that from the date of registration of the case till the date of filing of the charge-sheet, the applicant was never arrested by the prosecution agency as he was fully cooperating in the investigation. The applicant never created any hurdle or tried to temper with the evidence. Therefore, at stage of filling Final Report (Challan) , his arrest is not mandatory, hence learned court ought to have granted him anticipatory bail . Even the respondent/SPE Lokayukta did not seek arrest for interrogation of the applicant. It is further submitted by the learned counsel that that the disproportionate assets to the extent of 22.72% has been found for which the applicant has valid explanation. The expenditure of wife of the applicant has wrongly been taken into consideration. In support of his contention, he has placed reliance over the judgments of the apex Court in the case of Satender Kumar Antil V/s. CBI [SLP(Crl.) No. 5191/2021 decided on 28.7.2021] and in the case of Siddharth V/s. State of U.P. [Cr. Appeal No.838/2021 decided on 16.8.2021. Learned counsel also submits that the applicant has retired from service after attaining the age of superannuation. He is aged about 62 years and no useful purpose would be served in sending him to jail because the trial will take long time to conclude.

On the other hand, Shri R.S. Raghuwanshi, learned counsel appearing for respondent/State, opposes the aforesaid prayer by submitting that the applicant should have appeared before the Court at the time of filing of the charge-sheet instead of filing an application u/s. 438 of the Cr.P.C. Now, the Court has issued the arrest warrant against him, and he is required to file an application u/s. 70(2) of the Cr.P.C. for cancellation o