The Hon’ble Supreme Court in catena of judgments have categorically held that the power to be exercised under Section 438 of Cr.P.C. are extraordinary and ought not to be exercised in a routine manner: Delhi High Court

BAIL APPLN. 3698/2022 & CRL.M. (BAIL) 1511/2022


The present petition is filed for grant of pre-arrest bail in FIR No. 167/2022, registered under Section 397(Robbery, or dacoity, with attempt to cause death or grievous hurt) and 394 (Voluntarily causing hurt in committing robbery.) of Indian Penal Code, 1860, registered at Police Station Old Rajinder Nagar. The petition for pre-arrest bail is before the HON’BLE MR. JUSTICE AMIT MAHAJAN.


The FIR was registered as per PCR call vide DD No. 102 on 09.06.2022 made by Nitin Dhawan alleging robbery of jewellery items and cash by four armed men who came in white coloured Chevrolet Cruze car No.J04CA2541.

In the course of investigation, CCTV cameras in the vicinity were obtained and the vehicle used for the purpose of robbery was identified. The said vehicle was stolen from Ghaziabad, UP. The two accused, Mohammad Mustakeen and Mendi Hasan were arrested and the vehicle used at the time of incident was recovered from their possession. Another co-accused, Mohd. Kashif alias Badshah was arrested on 18.09.2022 on a secret information. The said co-accused, in his disclosure statement had stated that the robbed property was given to the current applicant.

Learned counsel for the applicant claims that his client has been falsely implicated in the present case. He emphasizes that other than the disclosure made by the co-accused, there exists no evidence against the applicant. The said co-accused, has already been granted bail by this Court on 09.12.2022.

Learned APP for the State opposes the current application and submits that the applicant is the receiver of the robbed property and it is yet to be recovered. She also submits that the said applicant is absconding and the procedure under Section 82 of The Code of Criminal Procedure, 1973 has been initiated. She brings it to the notice of the court that the applicant has a history of committing crime was previously involved in a similar case of robbery.


The alleged role of the applicant is not the same as the alleged role of Mohd. Kashif alias Badshah. This Court, considering the fact that the applicant has already spent four months in custody, and that the only evidence against the applicant was his own disclosure statement, had directed the release of Mohd. Kashif on bail.

This is not a case of grant of regular bail but is an application under Section 438 (Direction for grant of bail to person apprehending arrest) of Cr.P.C. The Hon’ble Supreme Court has held that the power to be exercised under Section 438 of Cr.P.C. are extraordinary and ought not to be exercised in a routine manner through various judgements. It is held in cases where the accused has joined the investigation and has fully cooperated with the investigating agency and is not likely to abscond, the custodial interrogation, perhaps, should be avoided. The current case is in the contrary. The allegations made against the applicant are serious in nature.

The applicant is stated to be in possession of the robbed articles which are yet to be recovered. The applicant had been absconding. Initially, Non-bailable warrants were issued and only after such proceeding under Section 82 of the Cr.P.C. have been initiated. The applicant has a history of committing crime was previously involved in another case, being FIR No. 973/2020, under Sections 392/34 of IPC.

The applicant is absconding and the antecedents do not suggest that he is not likely to commit serious offences while on bail. The investigation is at a nascent stage and the applicant has not been cooperative.

Thus, keeping in mind the nature of allegations the Court believed that this is not a fit case for exercise of the discretion under Section 438 of Cr.P.C. The application therefore stands dismissed.

Observations of the current order are only for the purpose of deciding the present bail application and should not influence the outcome of the trial. 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”


Click here to view your judgement

Leave a Reply

Your email address will not be published. Required fields are marked *