Shahrukh Kha And Another vs State Of M.P

This is the first application under section 438 Cr.P.C. seeking anticipatory bail in connection with Crime No.545/2019 registered at Police Station

â€" Industrial Area, Jaora for the offence punishable under sections 8/15, 25 of N.D.P.S. Act and Section 307, 147, 148, 336, 353 and 332 of IPC.

Prosecution case in brief is that on 5.12.2019, the police party raided 'Bhura Ka Dhaba' situated at Chorasi Badayla Fanta Highway because it had

received information that some miscreants are dealing with illicit poppy straw and transferring it from one vehicle to the other. After reaching on the

spot, the police party noticed that some people were transferring some bags from a Toofan Jeep bearing registration No.MP43 BD 3123 to a tractor

trolley. The police party cordoned them and inquired about their names. They revealed their names as Bhura, Bhaiya, Javed and Ataul Rehman.

Suddenly Bhaiyu pushed the police constable standing to guard Toofan Jeep and jumped in to it. Bhura, who was sitting on driver seat, started and

tried to ran the jeep over Sub Inspector Praveen Bhaskal and constable Sanjay Aajana. They swerved and could hardly save themselves. Bhura and

Bhaiyu ran away from the spot taking advantage of dark. Sub Inspector intimated the police station to send some more force, but before the force

could come 10 to 15 people on Motorcyles, Brezza and Swift Cars having sticks, stone and boulders in their hands arrived and with intent to rescue

Javed and Ataul Rehman from lawful detention threw stone and bashed constable Sanjay Aajana with sticks. Fortunately, additional force arrived and

all the people ran away from the spot. The Police recovered 16 bags of poppy straw containing 256 Kg 880 grams contraband from the jeep and

tractor trolley.

The contention of the learned Counsel for the petitioners is that the petitioners have been impleaded in the array of accused only on the basis of the

memorandum statements of Ataul Rehman and Javed. No other evidence is available in the case diary against them.

Besides, parity with co-accused Ramjani, who has been granted anticipatory bail vide order dated 26.02.2020 passed in M.Cr.C. No.4963/2020 is

also claimed by the petitioners.

The objection of the learned Public Prosecutor is that identification of the petitioners is required in this case. The petitioners are absconding and are

not cooperating with the investigation. They have been declared absconders under Section 82 of the Cr.P.C. They both have criminal record. Prior to

the present case, Crime No.19/2016 under Sections 323, 294, 506, 395 and 307 of IPC was registered against petitionerâ€"Salman and Crime

No.18/2017 under Section 307/34 of IPC against petitioner Shahrukh. The petitioners along with other co-accused persons had dared to assault the

police team to get free two scoundrels indulged in illegal trafficking of contraband from the custody of the police, therefore, they be not granted

anticipatory bail.

Reliance has been placed on the judgment passed in State of Madhya Pradesh Vs. Pradeep Sharma reported in (2014) 2 SCC 17 1wherein Hon'ble

the Apex Court has held that the powers exercisable under Section 438 of Cr.P.C. are extraordinary in character and it is to be exercised only in

exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused

of an offence is not likely to otherwise misuse his liberty. It is specifically held by the Apex Court that if anyone is declared as an

absconder/proclaimed offender in terms of Section 82 of Cr.P.C., he is not entitled to relief of anticipatory bail.

Further, notices issued against the petitioners under Section 82 of the Cr.P.C. have been referred by the learned Public Prosecutor.

Having regard to the rival contentions of the parties, nature and gravity of the offence, accusation made against the petitioners, proclamation issued

against them and the judgment of the Hon'ble Apex Court, I do not find it appropriate to allow anticipatory bail to the petitioners.

No such grounds as have been taken by the State in the present petition, had been raised while considering bail petition of co-accused Ramjani,

therefore, the case of the present petitioners is not identical to the case of co-accused Ramjani and the bail cannot be granted on the ground of parity

also.

Consequentially, the petition is dismissed.