The main legal point established in the judgment is that a person declared as a proclaimed offender under Section 82 of the Cr.P.C. is not entitled to anticipatory bail under Section 438 of the Code.

ORDER :

1. Heard learned Sr. Advocate Mr. B.B. Naik appearing with learned Advocate Mr. Dipak Dave for the applicant, learned APP Mr. Dabhi for the respondent State and learned Sr. Advocate Mr. Anshin Desai appearing with learned Advocate Mr. Parth Contractor for the First Informant.

2. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant – original accused prays for being released on anticipatory bail in connection with FIR No.11216024200717 of 2020 registered with Kalol City Police Station, Gandhinagar on 4.12.2020 for offences punishable under Sections 119, 380, 406, 409, 477, 384, 457, 114 & 120B of IPC.

3. At the outset, it is required to be noted that five applications, including the present one, praying for grant of pre-arrest bail by different accused of the very FIR are listed together and whereas this Court has started hearing of the present application and since it appears that there are certain aspects in the present application, which are not common to other applicants, therefore, this application is being heard and decided independently and whereas this Court has not heard the rest of the applications. It is further clarified that this order is only with regard to the present application being Criminal Misc. Application No.5891 of 2021.

4. It is further required to be noted that while the instant FIR came to be registered on 4.12.2020, since the present applicant was not cooperating with the investigation, the Investigating Officer had sought for issuance of warrant under Section 70 of Cr.P.C., and whereas vide an order dated 24.2.2021, the learned Magistrate had issued warrant for arrest of the present applicant. It further appears that since the said warrant could not be served upon the present applicant, the Investigating Officer had moved a further application for proclamation under Section 82 of Cr.P.C., and whereas the learned Magistrate, vide an order dated 9.6.2021 had been pleased to allow such application.

5. It also appears that the order of issuance of warrant under Section 70 of Cr.P.C., and the order of proclamation under Section 82 of Cr.P.C., had been challenged by the present applicant before the learned Coordinate Bench of this Court under Section 482 of Cr.P.C., by filing Special Criminal Application No.8272 of 2021 and vide an order dated 26.9.2022, learned Coordinate Bench of this Court had been pleased to reject such challenge.

6. Heard learned Sr. Advocate Mr. B.B. Naik appearing with learned Advocate Mr. Dipak Dave for the applicant, who would submit that while there are decisions of the Hon’ble Apex Court inter alia taking a view that once proclamation under Section 82 of Cr.P.C., has been issued, thereafter the applicant – accused is not entitled to grant of anticipatory bail under Section 438 of Cr.P.C., and whereas it is the contention of the learned Sr. Advocate that such decisions of the Hon’ble Apex Court are not good law, more particularly according to learned Sr. Advocate Mr. Naik, such decision is per incuriam the observations of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia Vs. State of Punjab, reported in (1980) 2 SCC 565. Learned Sr. Advocate Mr. Naik has tried to make good his submission by relying upon the observations of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia (supra), where the Hon’ble Apex Court has inter alia observed that words of width and amplitude, as found in Section 438 of Cr.P.C., ought not generally to be cut down so as to read into the language of the statute, restraints and conditions which the legislature itself did not think it proper or necessary to impose. Learned Sr. Advocate Mr. Naik has also relied upon the observations of the Hon’ble Apex Court in the said decision, where the Hon’ble Apex Court has inter alia laid down that in matters of grant of bail, the Courts concerned should exercise the discretion on case-to-case basis and whereas discretion conferred upon the Courts cannot be stul