The failure to follow the prescribed procedure for declaring a person as an absconder under Section 82 of the Cr.P.C. does not debar the person from applying for anticipatory bail if otherwise entitled on merits.

JUDGMENT

Prashant Kumar Mishra, J. - The applicant has preferred this application under Section 438 of the Cr.P.C. for grant of anticipatory bail, as he apprehends his arrest in connection with Crime No.44/2015, registered at Police Station ACB, Raipur, Unit Bilaspur, for offence punishable under Section 420, 467, 468, 471, 120-B & 427 of the Indian Penal Code; Section 13(1)(d) & 13(2) of the Prevention of Corruption Act, 1988; and Section 3 of the Prevention of Damage to Public Property Act.

2. As per the prosecution case one M/s Sundrani Construction Company was awarded work of construction of Bridge over Arpa river at Koni-ManglaBilaspur Road popularly known as ''Turkadih Bridge''. The work started in the year 2005 and was completed in 2007. During inspection of the work carried out by the said company it was found that certain piers were completely damaged. The steel liners in the piers were absent over the concrete bed which were to give support to the pillars and in absence of steel lining, the work had caused damage to the concrete to the extent of 50-60%. The liner was exposed over the river bed, but in lower part of the pier which found support at the rock below the river bed to form the base, the steel lining was completely missing.

3. It is the case of prosecution that the contractor along with officers of the Public Works Department including the applicant prepared forged document to demonstrate that the basement work has been carried out in accordance with the drawing, however, severe deviation from technical specification was made in construction, consequently the repair work had to be carried out almost equal to the cost/expenditure at the beginning. The total loss caused to the exchequer has been assessed at Rs.337.47 lacs. As against the present applicant the allegation is that he entered incorrect measurement to approve bills to the tune of Rs.17.00 lacs (approx.).

4. Shri Rakesh Pandey, learned counsel appearing for the applicant, would submit that the partners of the contractor company namely; Peetambar Das Sundrani has been granted anticipatory bail by order dated 20-9-2018 passed in MCRCA No.759 of 2017. In this case prayer for anticipatory bail of Murarilal Sundarani was dismissed, however, Murarilal Sundarani moved second anticipatory bail application bearing MCRCA No.1361 of 2018, which was allowed by the coordinate Bench of this Court vide order dated 14-11-2018. Learned counsel would further submit that the applicant was transferred from Bilaspur to Raigarh on 18-9-2007 prior to completion certificate given by some other Engineer. The applicant thereafter retired from service on 30-11-2009 on attaining the age of superannuation and is presently aged about 72 years.

5. Shri K.K. Singh, learned Govt. Advocate appearing for the State, per contra, would oppose the bail application. Learned counsel would refer to the order passed by the coordinate Bench in Vijay Dewangan v State of Chhattisgarh, MCRCA No.83 of 2015 (decided on 4-3-2015) to argue that once the applicant has been declared absconding he is not entitled for anticipatory bail. He would also refer to the decisions rendered by the Supreme Court in Lavesh v State (NCT of Delhi), (2012) 8 SCC 730 and State of Madhya Pradesh v Pradeep Sharma, (2014) 2 SCC 171: AIR 2014 SC 626 .

6. Rejoining the submission, Shri Rakesh Pandey, learned counsel for the applicant, would submit that the ratio laid down by this Court in Vijay Dewangan (supra), based on the decisions rendered by the Supreme Court in Lavesh (supra) and Pradeep Sharma (supra), is to the effect that when a person is declared absconder in terms of Section 82 of the Cr.P.C. he is not entitled for anticipatory bail, however, in the case at hand, the complete order sheets of the trial Court, filed along with the additional documents, would reveal that before declaring the applicant as an absconder, procedure prescribed under Section 82 of the Cr.P.C. has not been followed, therefore, the said jud