1. Anticipatory bail application dismissed by High Court on ground of proclamation under Sections 82/83, Cr.PC against accused charged under various IPC sections and Daain Act. (Para 1 , 13 , 14 )
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2024 Supreme(SC) 226
SUPREME COURT OF INDIA
C.T. RAVIKUMAR, SANJAY KUMAR, JJ.
Srikant Upadhyay & Ors. - Appellants
Versus
State of Bihar & Anr. - Respondents
Criminal Appeal No. 1552 of 2024(@Special Leave Petition (Crl.) No.7940 of 2023)
Decided on : 14-03-2024
Advocates appeared:
For the Appellant(s) : Mr. Anand Shankar, AOR
For the Respondent(s): Mr. Anshul Narayan, Adv. Mr. Prem Prakash, AOR Mr. Bhanwar Pal Singh Jadon, Adv. Mr. Susheel Tomar, Adv. Mr. Chetan Jadon, Adv. Mr. Harsh Vardhan Singh Rajawat, Adv. Mr. Hardik Saxena, Adv. Mr. Hemlata singh Rathore, Adv. Dr. V.P.S. Jadon, Adv. Ms. Abha R. Sharma, AOR
For the Appellant(s) : Mr. Anand Shankar, AOR
For the Respondent(s): Mr. Anshul Narayan, Adv. Mr. Prem Prakash, AOR Mr. Bhanwar Pal Singh Jadon, Adv. Mr. Susheel Tomar, Adv. Mr. Chetan Jadon, Adv. Mr. Harsh Vardhan Singh Rajawat, Adv. Mr. Hardik Saxena, Adv. Mr. Hemlata singh Rathore, Adv. Dr. V.P.S. Jadon, Adv. Ms. Abha R. Sharma, AOR
IMPORTANT POINTS
(1) Anticipatory bail – If anyone is declared as an absconder/proclaimed offender in terms of Section 82 Cr.P.C., he is not entitled to relief of anticipatory bail.
(2) Anticipatory bail – When an application is filed for anticipatory bail, it cannot be adjourned without passing order of interim protection – Court may either reject application forthwith or issue an interim order for grant of anticipatory bail.
Headnote:
(A) Criminal Procedure Code, 1973 – Section 438 read with Section 82/83 – Anticipatory bail – If anyone is declared as an absconder/proclaimed offender in terms of Section 82 Cr.P.C., he is not entitled to relief of anticipatory bail – Power to grant anticipatory bail under Section 438, Cr.P.C. is an exceptional power and should be exercised only in exceptional cases and not as a matter of course – Its object is to ensure that a person should not be harassed or humiliated in order to satisfy grudge or personal vendetta of complainant – Sine qua non for initiation of action under Section 82, Cr. PC is prior issuance of warrant of arrest by Court concerned. (Paras 4, 5, 8 and 10)
(B) Criminal Procedure Code, 1973 – Section 438 – Anticipatory bail – Filing of an anticipatory bail through an Advocate would not and could not be treated as appearance before a court by a person against whom such proceedings – What is required as proof for absconding is the evidence to the effect that person concerned was knowing that he was wanted and also about pendency of warrant of arrest – It is always preferable to pass orders, either way, at the earliest – When an application is filed for anticipatory bail, it cannot be adjourned without passing order of interim protection – Court may either reject application forthwith or issue an interim order for grant of anticipatory bail – In absence of any interim order, pendency of application for anticipatory bail shall not bar Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr.P.C., in accordance with law. (Paras 20, 22 and 23)
(C) Prevention of Witch (Daain) Practices Act, 1999 – Section ¾ – Indian Penal Code, 1860 – Sections 341, 323, 354, 354 (B), 379, 504, 506 and 149 – Criminal Procedure Code, 1973 – Section 438 – Anticipatory bail application – Dismissal – Appellants were defying authority of law and moving applications for bail when they apprehended arrest owing to their nonattendance and disobedience – They failed to appear before Trial Court after receipt of summons and then after issuance of bailable warrants even when their co-accused, after issuance of bailable warrants, applied and obtained regular bail – Even after coming to know about proclamation under Section 82 Cr.P.C., they did not take any steps to challenge the same or to enter appearance before Trial Court to avert consequences – Order of High Court rejecting application for anticipatory bail upheld. (Paras 16, 25 and 26)
Facts of the case:
Present appeal is directed against order dated 04.04.2023 in CRLM No.67668 of 2022 passed by High Court of Judicature at Patna whereby and whereunder application for anticipatory bail filed by appellant was dismissed. Pre-arrest bail application was moved in connection with FIR registered against him and co-accused under Sections 341, 323, 354, 354 (B), 379, 504, 506 and 149 of Indian Penal Code, 1860 and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999.
Findings of Court:
There is no ground for interfering with order of High Court rejecting application for anticipatory bail rather not considering application on merits. Since their action is nothing short of defying lawful orders of Court and attempting to delay proceedings, this appeal must fail. Consequently, it is dismissed.
Result : Appeal dismissed.
Legal Category Hierarchy
- criminal procedure
- crime and sentencing
- special statutes
Table of Contents
2. Whether pending anticipatory bail without interim order bars Trial Court from proceeding under Sections 82/83, Cr.PC, and whether such proceeding disentitles applicant to pre-arrest bail. (Para 6 , 7 , 15 , 21 )
3. Appeal dismissed — appellants not entitled to anticipatory bail having consistently defied lawful orders of the Trial Court and been proclaimed as offenders. (Para 25 , 26 )
4. Whether pendency of an anticipatory bail application without interim order bars the Trial Court from issuing proclamation under Section 82 and proceeding under Section 83, Cr.PC?
No. In the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court from issuing or proceeding with steps for proclamation and taking steps under Section 83, Cr.PC, in accordance with law. (Para 10 , 11 , 22 , 23 )
5. Whether a person against whom non-bailable warrant is pending and proclamation under Sections 82/83, Cr.PC has been initiated is entitled to anticipatory bail?
No. The power under Section 438, Cr.PC is an exceptional power. A person continuously defying lawful orders of the Court and absconding is not entitled to such grant, though the Court retains power to grant it in extreme exceptional cases. (Para 3 , 4 , 5 , 16 , 24 , 25 )
6. Whether filing of an anticipatory bail application through an advocate constitutes appearance before a Court for the purpose of avoiding proclamation under Section 82, Cr.PC?
No. Filing of an anticipatory bail through an advocate cannot be treated as appearance before a court by a person against whom proceedings under Sections 82/83, Cr.PC are instituted. The person must submit himself to the authority of law. (Para 19 , 20 )
7. What is the nature and scope of the power to grant anticipatory bail under Section 438, Cr.PC?
It is an extraordinary and exceptional power to be exercised only in exceptional cases, not as a matter of course. Its object is to ensure a person is not harassed or humiliated to satisfy the grudge or personal vendetta of the complainant. (Para 8 , 9 )
8. Whether non-compliance with summons, warrants, and proclamation renders a person liable under Sections 174 and 174A, IPC?
Yes. A conjoint reading of Sections 19, 20, 21, 174 and 174A, IPC makes a person liable for non-attendance in obedience to an order from a public servant and non-appearance in response to a proclamation under Section 82, Cr.PC. (Para 17 , 18 )
JUDGMENT :
C.T. RAVIKUMAR, J.
Leave granted.
1. This appeal is directed against the order dated 04.04.2023 in CRLM No.67668 of 2022 passed by the High Court of Judicature at Patna whereby and whereunder the application for anticipatory bail filed by the appellant was dismissed. The pre-arrest bail application was moved in connection with FIR No.79 of 2020, registered against him and co-accused at Govidganj, Police Station, District East Champaran, Bihar, under Sections 341, 323, 354, 354 (B), 379, 504, 506 and 149 of the Indian Penal Code, 1860 (for short, ‘IPC’) and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999 (for short, ‘the Daain Act’).
2. Heard, Mr. Basant R., learned Senior Counsel for the appellants and Mr. Anshul Narayan, learned counsel for the respondent-State.
3. The question of seminal importance that arises for consideration can better be explained and understood by referring to a decision of this Court in Prem Shankar Prasad v. State of Bihar and Anr., (2022) 14 SCC 516, which was rendered after referring to the earlier decisions of this Court in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171 and Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730. In Lavesh’s case (supra), this Court held in paragraph 12 thus: -
“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and 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.” (Underline supplied)
4. In the decision in Pradeep Sharma’s case (supra) this Court held that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 Cr.PC., he is not entitled to relief of anticipatory bail. After extracting Section 438, Cr.PC., it was further held therein thus:-
“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.”
5. In Prem Shankar Prasad’s case (supra), this Court took note of the fact that the respondent-accused was absconding and concealing himself to avoid service of warrant of arrest and the proceedings under Sections 82/83, Cr.PC have been initiated against him, set aside the order of the High Court granting anticipatory bail ignoring the proceedings under Sections 82/83, Cr.PC. Thus, it is obvious that the position of law, which was being followed with alacrity, is that in cases where an accused against whom non-bailable warrant is pending and the process of proclamation under Sections 82/83, Cr.PC is issued, is not entitled to the relief of anticipatory bail.
6. The learned Senior Counsel appearing for the appellants-accused would contend that the well-nigh settled position of law in respect of pre-arrest bail as above, is inapplicable in a case where a person apprehending arrest has already filed an application seeking anticipatory bail and it is pending sans any interim orders and during its pendency if the Trial Court issues proclamation under Section 82, Cr.PC. In short, the proposition of law raised is – when an application seeking anticipatory bail filed by a person apprehending arrest is pending without any interim protection, whether initiation of proceeding for issuance of proclamation under Section 82, Cr. PC would make that application worthy for further consideration on its own merits? According to the learned Senior Counsel appearin
