Asthana, J. - (1.) I have heard the learned counsel for the applicant and the learned Govt. Advocate.
(2.) IN the F. I. R, lodged no overact is attributed to the applicant Shashank Shekhar Mishra which would bring him prima facie, till further evidence comes on record, within Rule 33 of the D. I. R It was urged by the learned Government Advocate that he was present at the house of his uncle where people had gathered for hatching a conspiracy and for preparations to perpetrate prejudicial acts. It has been stated in the F. I. R. that the applicant is a nephew of the person at whose house people had gathered. The presence of the applicant there, being the real nephew, is explainable in many other ways and it cannot conclusively be held that the applicant was there in furtherance of the design of fulfilling the objects of the conspiracy. It was then urged that the applicant is a staunch follower of the Jan Sangh and R. S. S. Reliance was placed on an assertion in the counter affidavit which is a general and vague statement and does not appear to me to be a sound foundation for dubbing the applicant at this stage. It was then tried to be urged by the learned Government Advocate that the provisions of Section 438 Cr. P. C. would not be attracted in as much as proceedings under Sections 82 and 85 Cr. P. C. have been taken against the applicant and his arrest being a certainty it cannot be said that the applicant has reasons to believe that he may be arrested and hence he cannot take the benefit of Section 438 Cr. P. C. The fallacy involved in this argument is obvious. Proceedings under Sections 82 and 83 Cr. P. C. are always taken when a warrant of arrest has been issued. What better reasons can a person have of his being arrested than the existence of such circumstances. The phrase "reason to believe" means that there are circumstances in existence which lead a man endowed with common prudence to conclude that the arrest is impending. To me it appears, that on behalf of the prosecution this argument to be simply an argument of despair.
(3.) FOR the reasons given above, I direct that Shashank Shekhar Mishra will be released on bail, in the event of his arrest, by the Chief Judl. Magistrate Rae Bareli on such terms and conditions as may be imposed by him. Bail Granted.;