The Court clarifies that non-compliance with procedural notice does not constitute a breach of bail conditions under Section 438 Cr.P.C.

1. Heard through Video Conferencing.
Shri Vikas Rathi, learned counsel for the applicant.
Shri A. Premchandani, learned Public Prosecutor for the non - applicant - State.
Ms. Rekha Shrivastava, learned counsel for the objector.

2. Heard. Perused the case diary.

3. This is second application filed under S.438 of Cr. P.C. for grant of anticipatory bail. Applicants - Julekha W/o Sadiq Khan and Sadiq Khan S/o Shabbir Khan are apprehending their arrest in connection with Crime No.394/2020 registered at Police Station Dharampuri, District Dhar for the offence punishable under S.328, S.342, S.376, S.376(2)(n), S.406, S.34, S.354(c), S.366, S.376(2)(f), S.376(2)(k), S.376(2)(h), S.376(j), S.312, S.313 and S.318 of IPC along with 66 - E of the I.T. Act.

4. Both the applicants were earlier granted anticipatory bail by this Court vide orders dated 18.01.2021 and 16.03.2021 respectively in two different anticipatory bail applications. Earlier, case was registered only under S.328, S.342, S.376, S.376(2)(n), S.406 and S.34 of IPC. Subsequently, when the charge - sheet was filed, some other Sections were added as far as the present applicants are concerned relating to S.312, S.313 and S.318 of IPC.

5. Learned counsel for the applicant submits that there is no change in the circumstances apart from adding of these provisions and the Court while disposing of the earlier anticipatory bail applications, has taken into account the provision of S.313 of IPC and has come to a conclusion specifically in the order dated 16.03.2021 relating to applicant Sadiqu Khan that abortion was induced by the main accused Irfan S/o Sardar who had given prosecutrix abortion pills passing them of as vitamin pills thus, Irfan was prima - facie considered to be mainly responsible for the offences pertaining to S.313 of IPC. He also submits that there are no change in the facts and circumstances of that case, that applicants have complied with the provisions of the anticipatory bail, as directed in both these orders and that the reason for not appearing before the JMFC at the time of filing of charge - sheet was that these additional Sections were foisted upon the applicants and had they appeared, they would certainly been consigned to the judicial custody by the JMFC and therefore, they did not appear before the JMFC but filed an anticipatory bail before the Sessions Court, which was rejected as well and on these grounds, anticipatory bail has been sought.

6. Learned counsel for the objector has filed written objections and also filed documents. The main objection was that these applicants had although appeared before the Investigating Officer for the purpose of interrogation and investigation, as directed by this Court in its anticipatory bail orders, however, when the Investigating Officer gave them notice to appear before the concerned Court on 25.03.2021, they did not appear and thus, have breached the conditions mentioned under S.438(2) and S.170 of Cr. P. C. It has been submitted that the applicants were enjoined to appear before the JMFC which they did not do and they cannot be rewarded for breaching these statutory requirements as per S.170 of Cr. P. C.

7. While passing the anticipatory bail orders, the Court had directed that applicants shall assist the Investigating Officer to appear on a particular date and further as and when required for the purpose of investigation. S.438(2) sub-clause (1) also provides that such conditions may be imposed upon the accused persons that they make themselves available for the purpose of interrogation by the Investigating Officer. It appears that the applicants have duly cooperated with the Investigating Officer and have appear