Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1415

IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI J.
Khalid Anwar Alias Anwar Khalid – Appellant
Versus
Central Bureau Of Investigation – Respondents
Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No.1981 of 2023
Decided on : 06-09-2023

Advocates:
Advocate Appeared:
For the Appellant : Shitla Prasad Tripathi, Amresh Singh
For the Respondent: Anurag Kumar Singh

The main legal point established in the judgment is that the bar on granting anticipatory bail to a person declared as a proclaimed offender does not apply if the person has not been declared as such.

Headnote:
Anticipatory Bail - Criminal Law - Prevention of Corruption Act, 1988, Section 120-B, 419, 420, 7(c), 13(1)(a), 13(2) - Section 82 Cr.P.C
Fact of the Case:

The applicant sought anticipatory bail in a case involving charges under the Indian Penal Code and the Prevention of Corruption Act, 1988, related to smuggling of contraband goods. The respondent raised a preliminary objection based on the issuance of a proclamation under Section 82 Cr.P.C against the applicant.
Finding of the Court:

The court rejected the preliminary objection, citing that the applicant had not been declared a proclaimed offender as yet, and the bar created by the principle of law laid down by the Hon’ble Supreme Court in Lavesh (supra) did not apply to the present case. The court proceeded to examine the merits of the application and granted anticipatory bail to the applicant.
Issues: The issues involved the validity of the preliminary objection raised by the respondent based on the issuance of a proclamation under Section 82 Cr.P.C and the application for anticipatory bail by the applicant.
Ratio Decidendi: The court's decision was based on the fact that the applicant had not been declared a proclaimed offender as yet, and the bar created by the principle of law laid down by the Hon’ble Supreme Court in Lavesh (supra) did not apply to the present case.
Final Decision: The anticipatory bail application of the applicant was allowed, and specific conditions were imposed for the release of the applicant in the event of arrest/appearance before the trial court.

JUDGMENT :

1. Heard Sri. Arpit Chaudhary Advocate, holding brief of Sri. Shitla Prasad Tripathi Advocate, the learned Counsel for the applicant and the learned Counsel for the respondent – C.B.I. and perused the record.

2. The instant application has been filed by the applicant seeking anticipatory bail in F.I.R. bearing R.C. No. 220/2022/E0011-CBI/EO-11/ND, under Sections 120-B, read with 419, 420 I.P.C. and Section 7 (c), 13(1)(a) read with 13(2) of Prevention of Corruption Act, 1988, registered at Police Station CBI/EO-II/New Delhi, District New Delhi.

3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 10.08.2022 against 19 named persons, including the applicant, and some unknown public servants and private persons, stating that a written complaint dated 01.07.2022 had been received from the Assistant Commissioner, Directorate General of Vigilance, Indirect Taxes and Customs of Lucknow Zonal Unit regarding smuggling of contraband goods of foreign origin like gold (5501.99 grams), reputed foreign brand cigarettes (434400 sticks) and saffron (30 kgs.).

4. The learned counsel for the respondent-C.B.I has raised a preliminary objection that a proclamation under Section 82 Cr.P.C has been issued against the applicant and, therefore, in view of the law laid down by the Hon’ble Supreme Court in Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, the applicant is not entitled to be granted anticipatory bail.

5. Section 82 Cr.P.C. reads as follows:

82. Proclamation for person absconding.— (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:—

(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).”

6. In the present case, a proclamation under Section 82 (1) Cr.P.C has been issued on 01.08.2023 requiring the applicant to appear before the Court on 02.09.2023. However, there is nothing on record to indicate that the proclamation has been ‘published’ as provided under Subsection (1) of Section 82 Cr.P.C., as there is no material to indicate that the proclamation was publicly read in some conspicuous place of the town or village in which the app

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