IMPORTANT POINT
Anticipatory bail under Section 438 CrPC is an extraordinary remedy, granted only in exceptional circumstances, particularly when the applicant is not a proclaimed offender.

JUDGMENT :

Subhash Vidyarthi J.

1. Heard Sri Akhilesh Kumar Kalra, the learned counsel for the applicant as well as Sri Punit Kumar Yadav, the learned counsel appearing on behalf of the State and perused the records.

2. The instant application has been filed by the applicant seeking anticipatory bail in F.I.R. No.817 of 2023, under Sections 419, 420, 467, 468, 471 & 129-B I.P.C., registered at Police Station Kotwali Nagar, District Gonda.

3. The aforesaid case has been registered on the basis of an F.I.R. lodged by a Lekhpal on 15.09.2023 against 7 persons, including the applicant, stating that the co-accused Jawahar Lal had executed two registered agreements in favour of co-accused Amit Agarwal to sell a piece of government land which is recorded as banjar in the revenue records. Another co-accused Rajmangal Mishra executed a registered agreement dated 11.03.2022 to sell a part of the aforesaid land to the applicant. The applicant’s anticipatory bail application was rejected by the learned Sessions Court by means of an order dated 16.11.2023.

4. In the affidavit filed in support of the anticipatory bail-application it has been contended that the applicant is innocent, he has falsely been implicated in the present case and he has no criminal history. A copy of the plaint dated 03.10.2023 filed in the Court of Civil Judge, Junior Division, Gonda for a decree of cancellation of the agreement dated 11.03.2022 has been annexed with the affidavit filed in support of the application. It has been stated that the co-accused Jawahar Lal has been granted bail in this case and all the other co-accused persons have been granted anticipatory bail.

5. The learned counsel for the State has opposed the anticipatory bail application and on the basis of instructions provided to the learned State Counsel he has submitted that proceedings under Section 82 Cr.P.C. have already been initiated against the applicant on 16.08.2023 and, therefore, the application for anticipatory bail is not maintainable in view of the law laid down by Hon’ble Supreme Court in the case of Lavesh versus State (NCT of Delhi): (2012) 8 SCC 730 and Srikant Upadhyay and others versus State of Bihar and another: 2024 SCC OnLine SC 282.

6. In reply to the aforesaid submission, the learned counsel for the applicant submitted that the anticipatory bail applications of co-accused persons were pending and the applicant was waiting for its outcome and that is the reason for the delay in filing this application.

7. In Lavesh (supra), the wife of younger brother of the appellant had committed suicide after 1 year and 8 months of her marriage, while she was pregnant. An FIR under Section 304-B, 306 and 498 I.P.C. was lodged in this regard. There were definite allegations against the appellant and other family members that they had subjected the deceased to cruelty with a view to demand dowry right from the date of marriage and also immediately before date of her death. It was stated in the counter affidavit filed before the Supreme Court that “efforts were made to arrest the petitioner but he absconded as such he was got declared a Proclaimed Offender. The case is pending trial”. In this background, a two Judge Bench of the Hon’ble Supreme Court held in Lavesh (Supra) that:—

“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.”

8. Even after making the aforesaid observations in Lavesh (Supra), the Hon’ble Supreme Court considered the merits of the case and recorded that anothe