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Judgment
S.S. Mishra, J
The petitioners 1 & 2 had filed ABLAPL No.4996 of 2015, which was disposed of on 30.11.2015 and the petitioner No.3 filed ABLAPL No.5028 of 2015, which was disposed of on 04.08.2015. The petitioners have cooperated with the investigation and eventually the charge sheet was filed on 31.12.2023 showing them not arrest. During the investigation, since the petitioners have extended all cooperation with the investigating agency, therefore, they were not arrested despite the fact that their anticipatory bail were turned down by this Court.
In the present case, the petitioners are challenging the order dated 19.02.2024 whereby the cognizance for the offence under Section-13(2) r/w Section 13(1)(e) of the P.C. Act, 1988 r/w Section-109 IPC has been taken by the learned Court below.
Learned counsel for the petitioners relied upon the judgment of the Hon’ble Supreme Court in the case of Mahdoom Bava vs. Central Bureau of Investigation reported in 2023 LiveLaw (SC) 218. In paragraphs-10 & 12 of the said judgment reads as under:
“10. More importantly, the appellants apprehend arrest, not at the behest of the CBI but at the behest of the Trial Court. This is for the reason that in some parts of the country, there seems to be a practice followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order. The correctness of such a practice has to be tested in an appropriate case. Suffice for the present to note that it is not the CBI which is seeking their custody, but the appellants apprehended that they may be remanded to custody by the Trial Court and this is why they seek protection. We must keep this in mind while deciding the fate of these appeals.
In view of the aforesaid, we are of the considered view that the appellants are entitled to be released on bail, in the event of the Court choosing to remand them to custody, when they appear in response to the summoning order. Therefore, the appeals are allowed and the appellants are directed to be released on bail, in the event of their arrest, subject to such terms and conditions as may be imposed by the Special Court, including the condition for the surrender of the passport, if any.”
Learned counsel for the petitioners submits that the petitioners are apprehending arrest on the basis of the summon issued by the learned Court below. In that event also, the application under Section 438 Cr.P.C. is maintainable.
In view of the aforementioned, the petitioner seeks to withdraw the present petition to resort to the right remedy under law.
The CRLMC is accordingly disposed of. Liberty is granted to the petitioners to avail appropriate remedy under law relying the aforementioned judgment..
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