ORDER

Heard Ms. Soni Shrivastava, Ld. Advocate for the petitioner and Shri Anil Singh, Ld. Advocate for the informant as well as Shri Bharat Bhushan, the learned counsel for the State.

2. The petitioner seeks anticipatory bail in connection with Bihar Thana P.S. Case No. 451 of 2016 registered for the offence punishable under Sections 420, 465, 466, 467, 468, 471 and 409 of the Indian Penal Code.

3. At the outset, the learned counsel for the informant submits that since the learned court below has issued summons under Section 82 of the Code of Criminal Procedure by an order dated 04.01.2018, the present anticipatory bail petition is not maintainable. In this regard, the learned counsel for the informant heavily relies upon a judgment reported in (2014) 2 SCC 171 (State of Madhya Pradesh vs. Pradeep Sharma). It would be relevant to quote paragraphs no. 16 and 17 of the said Judgment herein below: –

“(16) 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.”

(17) 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.”

4. It is submitted by the learned counsel for the informant that in view of the fact that the petitioner herein has been absconding, though not declared a proclaimed offender or an absconder, as well as the fact that the learned court below has issued summons against the petitioner herein under Section 82 of the Code of Criminal Procedure, the aforesaid judgment rendered by the Hon’ble Apex Court in the case of Prade