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anticipatory bail for proclaimed offender cases in delhi india

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From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.

This judgment was followed in the case of State of Madhya Pradesh Vs. Pradeep Sharma (supra) wherein after quoting the aforesaid paragraph in the case of Lavesh (supra), it was held as follows:-

“It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail”.

The Hon’ble Supreme Court went on to hold that “in such serious offences particularly, the respondent-accused being proclaimed offender, we are unable to sustain the impugned order of granting the anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.” The ultimate conclusion, which can be drawn from the judgments quoted above, is that once process under section 82 Cr.P.C. has been issued , an anticipatory bail application becomes non-maintainable. Although it has been strenuously argued by Mr. Indrajit Sinha, learned counsel for the petitioner, that the said judgments are applicable in the facts and circumstances of each case and no uniform applicability can be made in cases of anticipatory bail but this contention of learned counsel for the petitioner is rejected as it has specifically been held by the referred judgments that once an accused has been declared as an absconder /proclaimed offender in terms of Section 82 Cr.P.C. is denied the consideration of anticipatory bail. Therefore, the first question which has been raised in this application is answered against the petitioner.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

A.B.A. No. 3493 of 2015

 

Kumar Anuhav, Son of Sri Arun Kumar Srivastava, Resident of 15/C,

Park Road, D1/A, Road No. 1, Ashok Nagar, P.O. and P.S. Argora,

District-Ranchi.                           ……..Petitioner

Versus

  1. The State of Jharkhand.
  2. Reena Kumari Sinha, D/o Bipin Bihari Sinha,presently residing

at Maharajganj Road, in front of Punjab National Bank, New

Area, P.S. Town, Town & District- Aurangabad ( Bihar).

…Opposite Parties

——–

Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY

——–

For the Petitioner     : Mr. Indrajit Sinha, Advocate

For the State          : APP

For the O.P. No. 2     : Mr. R.S. Mazumdar, Sr. Advocate

——–

06/06.11.2015

Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. R.S. Mazumdar, learned senior counsel for O.P. No. 2.

  1. The petitioner apprehends his arrest in connection with Doranda (Argora) P.S. Case No. 196 of 2015, corresponding to G.R. Case No. 1920 of 2015, registered for the offence punishable under Sections 498A of the Indian Penal Code and sections 3/4 of Dowry Prohibition Act.
  1. Two pertinent questions have arisen in this anticipatory bail application. The first being whether an anticipatory bail application can be maintainable once process under Section 82 Cr.P.C. has been issued. The second question is whether this Court under the provision of Section 438 of the Code of Criminal Procedure can look into the legality or otherwise of issuance of process under sections 82 and 83 of Cr.P.C.
  1. The petitioner has been made an accused for an offence punishable under section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
  1. Learned counsel for the petitioner before adverting to the contentions he has raised has given a factual matrix of the case though not on merits and has mainly concentrated on the fact that the petitioner had all along cooperated with the Investigating Officer and therefore there was no question of issuance of any process under section 82 Cr.P.C. Submission has been advanced to the effect that on 1.4.2015, the FIR was instituted and on 4.4.2015, notices were issued under section 41A of the Cr.P.C. to the petitioner and subsequent thereto on 6.4.2015 mention has been made about the supervision report dated 2.4.2015 wherein a direction was given to arrest the petitioner. Pursuant to receiving notice under section 41A of Cr.P.C., the petitioner had appeared before the Investigating Officer on 8.4.2015. On 15.04.2015, requisition was made by the investigating officer for issuance of process under section 82 Cr.P.C.. The anticipatory bail application before the learned Sessions Judge was dismissed on 1.9.2015 and the anticipatory bail application preferred before this Court was presented on 9.9.2015 and on the same date itself, the process under section 82 Cr.P.C. was issued. It has been submitted that on 30.06.2015 and on other dates, the petitioner had made himself present before the Investigating Officer. Learned counsel for the petitioner after giving a brief background has tried to substantiate his argument by referring firstly to the judgments of the Hon’ble Supreme Court in the case of Lavesh Vs. State (NCT of Delhi) reported in (2012) 8 SCC 730. He has submitted that in the facts and circumstances of that case, it was held that considering the conduct of the petitioner as he was not amenable for investigation, he was declared as an absconder and therefore there was no question of grant of anticipatory bail. Learned counsel has also referred to the case of State of Madhya Pradesh Vs. Pradeep Sharma, reported in (2014) 2 SCC 171, wherein also as has been submitted by the learned counsel for the petitioner that the accused persons were all along absconding and were not cooperating with the investigation. Learned counsel further submits that declaring an accused as an absconder/proclaimed offender, the same could be one of the grounds for non consideration of anticipatory bail but it cannot be the sole ground while declaring the anticipatory bail application as not maintainable. Reference has also been made in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujrat and Ors, reported in AIR 2015 SC 3090, wherein the principles governing the grant of bail has been enumerated at paragraph 23 of the said judgment. Submission has been advanced by the learned counsel for the petitioner that there cannot be any strait jacket formula for consideration/non consideration of grant of anticipatory bail and the judgements in the case of Lavesh (supra) and Pradeep Sharma (supra) do not lay down that in all such cases, in which process under section 82 Cr.P.C. has been initiated, the anticipatory bail application shall not be maintainable. With respect to the other contentions, which have been advanced by the learned counsel for the petitioner, the same are based on a judgement of this Court in the case of Mahendra Kumar Ruiya Vs. State of Jharkhand & Anr, reported in 2013 3 JLJR 407, wherein, in an anticipatory bail application consideration was also made as to whether compliance with mandatory requirements of law prior to issuance of process under section 82 Cr.P.C. has been followed or not. Learned counsel has also referred to the provisions of Sections 482, 483 of Cr.P.C. and Section 227 of the Constitution of India to submit that the power of superintendence lies in the High Court and therefore even in an application under section 438 Cr.P.C. before the High Court, the legality or otherwise of issuance of process under section 82 Cr.P.C. can be looked into and no separate proceeding is required to be instituted.
  1. Mr. R.S. Mazumdar, learned senior counsel for O.P. No. 2, has countered the arguments advanced by the learned counsel for the petitioner with respect to the first question formulated and has submitted that the judgments rendered by the Hon’ble Supreme Court in the case of Lavesh (supra) and Pradeep Kumar Sharma create a binding precedent and the law laid down has to be interpreted in the strict sense of the term and there cannot be any liberal interpretation of the same. It has been submitted that whatever may be the facts and circumstances of the cases referred to by learned counsel for the petitioner, the only common thread binding both the judgements are that an anticipatory bail application shall not be maintainable solely on the ground of issuance of process under section 82 Cr.P.C. and the same cannot be circumvented by contending that it may be an additional ground for not considering the anticipatory bail application of an accused. Learned senior counsel has submitted that there is no question of considering an anticipatory bail application once process under section 82 Cr.P.C. has been issued and the Court is not to see the conduct of an accused and whether he has cooperated with the investigating agency or not. In this context, learned senior counsel has referred to the anticipatory bail application filed on behalf of the petitioner praying for stay of warrant of arrest as well as the supplementary affidavit and has submitted that the petitioner had appeared before the investigating officer only with an umbrella of interim protection over him. It cannot be deduced in such circumstances that the petitioner had cooperated with the investigating agency. Learned senior counsel further submits that the petitioner has merely tried to distinguish the factual aspects of the case of Lavesh(supra) and Pradeep Sharma (supra) but has not been able to distinguish that the law laid down by the Hon’ble Supreme Court is not applicable in the facts and circumstances of the case at hand. The contention with respect to second aspect of this application has been answered by the learned senior counsel for the opposite party no. 2 by making a reference to the case of Sheikh Anwar @ Sk. Anwar Vs. State of Jharkhand reported in 2014 (4) JLJR, wherein it was held that in view of the specific provision in the Code of Criminal Procedure dealing with a specific subject, the other provisions of the Code cannot be resorted to by the Courts. It has, therefore, been submitted that in an application under section 438 Cr.P.C. before a High Court recourse cannot be taken by challenging the illegality of issuance of process under section 82 Cr.P.C., which is an altogether different subject matter for which remedies are available in the Code itself. Learned senior counsel, therefore, submits that in either of the circumstances, the present anticipatory bail application is liable to be dismissed on the question of maintainability itself.
  1. To answer the first question, it is necessary to refer to the case of Lavesh (supra) wherein it was held as follows:-

“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.

This judgment was followed in the case of State of Madhya Pradesh Vs. Pradeep Sharma (supra) wherein after quoting the aforesaid paragraph in the case of Lavesh (supra), it was held as follows:-

“It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail”.

The Hon’ble Supreme Court went on to hold that “in such serious offences particularly, the respondent-accused being proclaimed offender, we are unable to sustain the impugned order of granting the anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.” The ultimate conclusion, which can be drawn from the judgments quoted above, is that once process under section 82 Cr.P.C. has been issued , an anticipatory bail application becomes non-maintainable. Although it has been strenuously argued by Mr. Indrajit Sinha, learned counsel for the petitioner, that the said judgments are applicable in the facts and circumstances of each case and no uniform applicability can be made in cases of anticipatory bail but this contention of learned counsel for the petitioner is rejected as it has specifically been held by the referred judgments that once an accused has been declared as an absconder /proclaimed offender in terms of Section 82 Cr.P.C. is denied the consideration of anticipatory bail. Therefore, the first question which has been raised in this application is answered against the petitioner.

  1. As regards the second contention of learned counsel for the petitioner with respect to looking into the legality or otherwise of issuance of process under section 82 Cr.P.C. in an anticipatory bail application, there are conflicting judgments, which have been referred to by the learned counsel for both the sides. In the case of Mahendra Kumar Ruia (supra), the Hon’ble Court was considering the question as to whether a person-accused of an offence, against whom, process under section 82 Cr.P.C. has been issued shall be debarred from getting the benefit of Section 438 of Cr.P.C. The Hon’ble Court went on to consider as to whether the provisions against issuance of proclamation under Section 82 Cr.P.C. had been properly complied with or not. In respect to the same, the relevant portion of the order is quoted herein under:-

“11. Sub-section (4) of Section 82 of the Cr. P.C. appears to be applicable in respect of a person accused of an offence punishable under specific Sections of the Indian Penal Code indicated and the word proclaimed offender appears in the said Sub- Section (4) of Section 82 of the Cr. P.C. Some discretion has been given to court to hold inquiry before pronouncing any accused as proclaimed offender under sub-

section (4) of Section 82 of the Code. Sub-Section (5) of Section 82 Cr. P.C. indicates that subsection (2) and sub-section (3) shall apply to declaration made by the Court under subsection (4) as they applied to the proclamation published under sub- section (1). In the present case we are not concerned with sub- section (4) because the petitioner is not an accused of the offence indicated under said sub-section (4) of Section 82 of the Code.

Therefore, I have to see whether provisions against issuance of proclamation u/s 82 sub-section (1) (2) & (3) have properly been complied with or not. Sub-section (1) empowers the Court to issue written proclamation with certain direction to appear at a specified place and a specified time against a person who is either absconded or concealing himself so that the warrant issued against him could not be executed. Sub- section (2) of Section 82 of the Code indicates the manner in which a proclamation shall be published or executed. In this connection compliance of Sub-Section (3) of Section 82 of the Code is very much important. This sub-section speaks about the subjective satisfaction of the Court and such subjective satisfaction of the Court must be reduced into writing to the effect that the proclamation was duly published on a specific date in the manner specified in clause (i) of sub-section (2) and that shall be the conclusive evidence that requirement of this section had been complied with and the proclamation was duly published. Such statement recorded in writing shall be the consequence for the next step for issuance of process under Section 83 of the Cr. P.C., therefore, before proceeding with provision contained under Section 83 of the Cr. P.C. the Court issuing a proclamation under Section 82 must record a reason in writing that even after issuance of proclamation the accused did not comply the direction and remained absconding or concealing himself or evading his appearance. The primary meaning of the word abscond is to hide and when a person is hiding from the place of his residence he is said to be absconder. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. In that view of the matter, I feel that strict compliance of sub-section (3) of Section 82 Cr. P.C. is very much required for declaring any accused as absconder. I would further like to explain that Section 82 Cr. P.C. has mainly three parts. As per first part of the Section it is well settled that issuance of warrant is condition precedent for issuance of process of proclamation under Section 82 of the Code. The Court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself so that such warrant cannot be executed. Second part suggest as to how proclamation has to be given effect or published to make the accused acquaint that his appearance is required in connection with particular case before a particular Court. The third part as indicated under sub-section (4) of Section 82 of the Cr. P.C. gives more discretion to make inquiry against an accused who has committed offence indicated under sub- section (4). After recording reasons the Court can declare an accused of such offence as proclaimed offender. To make the view more clear, I would like to refer Section 174 (A) I.P.C. under which disobedience of proclamation has been made punishable, which reads as follows:-

“174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure, 1973 ( 2 of 1974) shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”

  1. This inserted Section 174A of the I.P.C. has two parts ‘the first part of the Section relates for the punishment against a person against whom proclamation has been issued and published under sub-section (1) & (2) of Section 82 of the Code and the punishment is up-to three years or with fine or with both whereas ‘the second part of the offence relates to a declaration made under sub-section (4) of Section 82 under which a person has been pronounced as proclaimed offender and the punishment is severe than the first part which may extend to 7 years and shall also be liable to fine’. Now I feel it desirable to refer paragraph 11 & 12 of the judgment “Lavesh Vrs. State (NCT of Delhi” ( supra).
  1. In view of the observation made in para 12 of the said judgment it appears that a person against whom proclamation under Section 82 Cr. P.C. has been issued is not entitled to the relief of anticipatory bail but then proper compliance of Section 82 as discussed above is very much essential.
  1. Now coming to the facts of this case and the orders passed in P.C.R. No. 416 of 2006 I find that proclamation as required under Section 82 Cr. P.C. has properly not been done and no statement as required under sub-section (3) of Section 82 Cr. P.C. has been recorded. The issuance of process under Section 83 Cr. P.C. vide order dated 22.11.2012 also do not appear to be in accordance with law because the requirement of Section 82 Cr. P.C. has not properly been complied with.
  1. Thus from the above judgments, it is clear that in the anticipatory bail application, the Hon’ble Court has considered the issuance of process under Sections 82 and 83 Cr.P.C. and has held that the requirements before issuance of process has not been properly complied with and thereafter the consideration has been made with respect to prayer for anticipatory bail of the said petitioner.
  1. In the case of Sheikh Anwar @ Sk. Anwar (Supra), the Hon’ble Court was considering as to whether in a proceeding under section 438 Cr.P.C., the legality of process issued under section 82 Cr.P.C. can be looked into and the relevant paragraph of the said judgment are quoted thus:-

“22. The contention of the applicant is that while hearing a petition for grant of anticipatory bail under Section 438 Cr.P.C., the High Court can look into the legality of process issued under Section 82 Cr.P.C. and if the accused prima facie satisfies the court that the order issuing process under Section 82 Cr.P.C. is unsustainable, the Court can grant anticipatory bail to an accused ignoring the law laid down by the Hon’ble Supreme Court in the aforesaid cases.

  1. In my opinion such power cannot be exercised by the High Court while dealing with an application under Section 438 Cr.P.C. It is wellsettled that if there is a specific provision in the Code dealing with a specific subject, other provisions in the Code cannot be resorted to by the Courts. It has been consistently held by the Hon’ble Supreme Court that matters pertaining to revisional jurisdiction of the High court cannot be entertained by the High Court in exercise of its inherent power under Section 482 Cr.P.C. It is open to an accused to move the Court seeking quashing of the order issuing process under Section 82 Cr.P.C. however, it is not open to the High Court to grant anticipatory bail to an accused against whom process under Section 82 Cr.P.C. has been issued, ignoring the law laid down by the Hon’ble Supreme Court in “State of Madhya Pradesh Vs. Pradeep Sharma” and “Lavesh Vs. State (NCT of Delhi).”
  2. In the case of Sheikh Anwar (Supra) therefore it has been held by the Hon’ble Court that domain of the High Court to look into the legality of issuance of process under section 82 Cr.P.C. vests under section 482 Cr.P.C. and the same cannot be considered in an application made under section 438 Cr.P.C.
  1. The judgments referred to above do suggest that there is a conflict of opinion and in such circumstances, it would be desirable that the matter be heard by the Division Bench.
  1. Accordingly this application is referred to the Division Bench in order to answer the following question, which is formulated herein under:-

“Whether in an anticipatory bail application preferred under section 438 Cr.P.C., the Court can look into the legality or otherwise of issuance of process under section 82 Cr.P.C. or whether the same can be considered only in an application filed under section 482 Cr.P.C.”?

Since there is already an interim order in favour of the petitioner, the same shall continue till further orders.

Let this matter be placed before Hon’ble the Chief Justice.

( Rongon Mukhopadhyay, J) Rakesh/

Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.

The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”


REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NO.   2049        OF 2013

(Arising out of S.L.P. (Crl.) No. 4102 of 2013)

State of Madhya Pradesh                               …. Appellant(s)

Versus

Pradeep Sharma                                             ….

Respondent(s)

WITH

2 CRIMINAL APPEAL No.   2050         OF 2013

(Arising out of S.L.P. (Crl.) No. 4406 of 2013)

J U D G M E N T

P.Sathasivam, CJI.

1)    Leave granted.

2)    These appeals are  filed  against  the  orders  dated  10.01.2013  and

17.01.2013 passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively whereby the High Court granted anticipatory bail to the respondents herein.

3)    Brief facts:

  1. a) The case  of  the  prosecution  is  that  Rajesh  Singh  Thakur  (the

deceased), resident of village Gopalpur, Tehsil Chaurai, District Chhindwara, Madhya Pradesh and Pradeep Sharma (respondent herein), resident of the same village, were having enmity with each other on account of election to the post of Sarpanch.

  1. b) On 10.09.2011, Pradeep Sharma (respondent herein), in order to get rid of Rajesh Singh Thakur (the deceased), conspired along with other accused persons and managed to call him to the Pawar Tea House, Chhindwara on the pretext of setting up of a tower in a field where they offered him poisoned milk rabri (sweet dish).
  2. c) After consuming the same, when he left the place to meet his sister, his condition started getting deteriorated because of vomiting and diarrhea. Immediately, the father of the deceased took him to the District Hospital, Chhindwara wherefrom he was referred to the Government Hospital, Chhindwara.
  3. d) Since there was no improvement in his condition, on 11.09.2011, he was shifted to the Care Hospital, Nagpur where he took his last breath. The hospital certified the cause of death to be poisoning. On the very same day, after sending the information to the Police Station, Sitabardi, Nagpur, the body was sent for the post mortem.
  4. e) Inder Singh Thakur-father of the deceased submitted a written complaint to the Police Station Kotwali, Chhindwara on 13.09.2011 suspecting the role of the respondents herein. After investigation, a First Information Report (in short ‘the FIR’) being No. 1034/2011 dated 18.10.2011 was registered under Sections 302 read with 34 of the Indian Penal Code, 1860 (in short ‘the IPC’).
  5. f) On 01.08.2012, Pradeep Sharma (respondent herein) moved an application for anticipatory bail by filing Misc. Criminal Case No. 7093 of 2012 before the High Court which got rejected vide order dated 01.08.2012 on the ground that custodial interrogation is necessary in the case.
  6. g) On 26.08.2012, a charge sheet was filed in the court of Chief Judicial Magistrate, Chhindwara against Sanjay Namdev, Rahul Borkar, Ravi Paradkar and Vijay @ Monu Brahambhatt whereas the investigation in respect of Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi (respondents herein), absconding accused, continued since the very date of the incident.
  7. h) On 21.11.2012, arrest warrants were issued against Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi but the same were returned to the Court without service. Since the accused persons were not traceable, on 29.11.2012, a proclamation under Section 82 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) was issued against them for their appearance to answer the complaint.
  8. i) Instead of appealing the order dated 01.08.2012, Pradeep Sharma (respondent herein) filed another application for anticipatory bail being Misc. Criminal Case No. 9996 of 2012 before the High Court. Vide order dated 10.01.2013, the High Court granted anticipatory bail to Pradeep Sharma (respondent herein). Similarly, another accused-Gudda @ Naresh Raghuvanshi was granted anticipatory bail by the High Court vide order dated 17.01.2013 in Misc. Criminal Case No. 15283 of 2012.
  9. j) Being aggrieved by the orders dated 10.01.2013 and 17.01.2013, State of Madhya Pradesh has filed the above appeals before this Court.
  10. k) In the meantime, the respondents herein approached the Court of Chief Judicial Magistrate, Chhindwara for the grant of regular bail. Vide order dated 20.02.2013, the accused persons were enlarged on bail.

4) Heard Ms. Vibha Datta Makhija, learned senior counsel for the appellant-State and Mr. Niraj Sharma, learned counsel for the respondents.

5) The only question for consideration in these appeals is whether the High Court is justified in granting anticipatory bail under Section 438 of the Code to the respondents/accused when the investigation is pending, particularly, when both the accused had been absconding all along and not cooperating with the investigation.

6) Ms. Vibha Datta Makhija, learned senior counsel for the appellant- State, by drawing our attention to the charge sheet, submitted that the charges filed against the respondents/accused relate to Sections 302, 120B and 34 of the IPC which are all serious offences and also of the fact that both of them being absconders from the very date of the incident, the High Court is not justified in granting anticipatory bail that too without proper analysis and discussion.

7) On the other hand, Mr. Niraj Sharma, learned counsel for the respondents in both the appeals supported the order passed by the High Court and prayed for dismissal of the appeals filed by the State.

8) We have carefully perused the relevant materials and considered the rival contentions.

9) In order to answer the above question, it is desirable to refer Section 438 of the Code which reads as under:-

“438. Direction for grant of bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

Xxx xxx xxx”

10) The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat 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.

11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303, this Court considered the scope of Section 438 of the Code as under:-

“16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.

The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”

12) Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:

“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.” It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. In the case on hand, a perusal of the materials i.e., confessional statements of Sanjay Namdev, Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of witnesses that were recorded and the report of the Department of Forensic Medicine & Toxicology Government Medical College & Hospital, Nagpur dated 21.03.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21.11.2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29.11.2012. The documents (Annexure-P13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondents/accused under Section 82 of the Code to answer the complaint on 29.12.2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating “facts and circumstances of the case”, granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120B read with Section 34 of IPC. In such serious offences, particularly, the respondents/accused being proclaimed offenders, we are unable to sustain the impugned orders of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.

13) In the light of what is stated above, the impugned orders of the High Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively are set aside. Consequently, the subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011 releasing the accused on bail after taking them into custody in compliance with the impugned order of the High Court is also set aside.

14) In view of the same, both the respondents/accused are directed to surrender before the court concerned within a period of two weeks failing which the trial Court is directed to take them into custody and send them to jail.

15) Both the appeals are allowed on the above terms.

………….…………………………CJI.

(P. SATHASIVAM) .………….……………………………J.

(RANJAN GOGOI) NEW DELHI;