The Allahabad High Court has disposed of an anticipatory bail application, stating that under the Allahabad High Court (Amendment) Rules, 2022, an anticipatory bail application must be supported by an affidavit of the person apprehending arrest and not anyone else.
The Single-Judge Bench of Justice Krishan Pahal heard a Criminal Misc anticipatory bail application filed by Vivek Chaudhary.
The application for anticipatory bail has been filed for protection in regard to Case under Sections 354(B), 506, 504, 323, 498-A IPC and Section 3/4 of the Dowry Prohibition Act, registered at PS Mahila Thana in district Saharanpur.
In the application, a preliminary objection has been raised by the A.G.A that the affidavit of the applicant has not been sworn by him, rather has been sworn by his father as against the sub-rule (2) of Rule 18 A provided in Chapter XVIIII of Allahabad High Court (Amendment) Rules, 2022, amended on November 9, 2022.
The Counsel for the applicant has stated that as per subrule (8) of the newly inserted Rule 18-A, it is provided that the requirement of filing an affidavit as per sub-rule shall be subject to the provisions applicable for filing bail applications under Rule 18.
The said rule shall, as far as practicable, be applicable for the applications under Section 438 of the Code of Criminal Procedure, 1973.
A.G.A has vehemently opposed the bail application on the ground that the affidavit as per the newly amended Rule of the High Court, i.e 18A(2), the application must be supported by an affidavit of the person arrested and not by anyone else. The said word ‘must’ makes it mandatory and no exception can be drawn to it.
The A.G.A has also stated at Bar that even the affidavit filed by the father of the applicant do not indicate as to the reason for him filing the affidavit on behalf of his son.
Nothing has been mentioned to show the cause of his inability to reach the Court.
The judgement referred by the counsel for the applicant pertains to the regular bail applications and is not applicable to the anticipatory bail applications. Thus, the anticipatory bail application is not maintainable.
The Court observed, ‘The provision of anticipatory bail application was inserted in the legislature as an exception and not as a general rule.
‘Justice Benjamin N Cardozo has once stated that with the passage of time, the exceptions are converted into rules. Thus, the drawing of exceptions becomes redundant due to their overuse.
‘The deponent herein is the 63-year-old father of the applicant and the applicant is a young person and there was no impediment in his reaching the Court.
‘The argument tendered by the counsel that Rule 10 of Chapter IV also does not bar the affidavit to be filed by any person other than the applicant does not hold good as the said rule itself provides that it applies only if there is no rule to the effect.
‘The High Court at the time of inserting the new rule has opted to use the word ‘must’ in sub-rule (2) of Rule 18A in Chapter XVIII of the Rules. Had the intention of the High Court been otherwise, then the word ‘may’ or ‘shall’ would have been used.
‘The work ‘must’ signifies compulsion and no exception can be drawn to it. ‘Must’ is a word that indicates the necessity of something. It can be used as a noun when it means something not to be missed or overlooked. It is something that is mandatory in nature and is required by law.
‘The word ‘shall’ looks pretentious while ‘must’ indicates legal requirement. The applicant only can indicate the reason for his apprehension of arrest.
‘In the matters of regular bail applications, the delinquents are in jail, so they are unable to swear their affidavits. Thus, the provision of affidavits of their relatives has been provided in the Rules of the Allahabad High Court with respect to regular bail applications. While this is not the case in anticipatory bail applications, wherein the applicants are free.
‘Thus, in view of the aforesaid discussion, the Court does not find it a fit case to entertain the above anticipatory bail application, which has not been filed supported by the affidavit of the applicant,’ added the Court.
In the interest of justice, the Court granted one opportunity to the applicant to file a proper affidavit.
The High Court fixed November 25 as the next date of hearing.