A person declared as an absconder under the Code of Criminal Procedure is not entitled to the privilege of anticipatory bail.

ORDER :

1. The learned counsel for the petitioner is directed to remove all the defects pointed out by the office within one month. I have already heard the learned counsel for the petitioner as well as the learned counsel for the informant and also the learned counsel for the State. The petitioner apprehends his arrest in connection with Muzaffarpur Mahila P.S. Case No. 61 of 2020, registered for offence punishable under sections 341, 493, 376, 323, 506/34 of the Indian Penal Code. The prosecutrix has made allegation that the present petitioner exploited her sexually for ten years after giving promise to marry with her. She became pregnant and gave birth to a male child. At the time of lodging of the FIR, the male child was aged about five years. The prosecutrix came to know that the petitioner has solemnized his marriage stealthily with another girl. When she inquired, the petitioner assaulted and throttled her and also threatened her to face dire consequence, had she complained the occurrence to anyone. The petitioner remained absconding during investigation and charge-sheet was submitted showing him absconder.

2. The learned counsel for the informant has submitted that the petitioner remained absconding during entire period of investigation. The process under sections 82 and 83 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) has been issued against the petitioner, as such, the petitioner is not entitled for the privilege of anticipatory bail. In support of his submissions, the learned counsel for the informant has relied upon a decision of Hon’ble Supreme Court, reported in AIR 2021 SC 5125, Prem Shankar Prasad vs. the State of Bihar and another. The Hon’ble Supreme Court, in paragraph No. 7.3 of the above-noted decision, has observed as follows:

“7.3 ...Recently, in Lavesh v. 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: (SCC p. 733)

“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.”

3. 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. Thus the High Court has committed an error in granting anticipatory bail to respondent No.2-accused ignoring the proceedings under Section 82-83 of Cr.P.C.”

4. The learned counsel for the petitioner has submitted that the Hon’ble coordinate Bench of this Court, after considering the above-noted decision of the Hon’ble Supreme Court, has been pleased to quote that merely because the process under section 82 or 83 of ‘the Code’ has been issued, it cannot be said that the anticipatory bail petition is not entertainable.

5. The coordinate Bench, vide order dated 15.12.2021 in Cr. Misc. No. 1118 of 2021, Krishna Mohan Lal vs. State of Bihar, has held as follows:

“Having discussed the case laws which have been placed before this Court, this Court is of the considered opinion that this case stands on a completely different footing and that unprecedented situation of COVID -19 cannot be forgotten. The entire country was under lock down and in such circumstances if the application of the petitioners remained pending with this Court and during the pendency they have been dec