Deepankar Vishwas vs State of Madhya Pradesh Through P. S. Omti, District Jabalpur

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(MP) 102

IN THE HIGH COURT OF MADHYA PRADESH
Suresh Kumar Kait, CJ, and Vivek Jain, J.
Deepankar Vishwas v. State of Madhya Pradesh Through P.S. Omti, District Jabalpur
Miscellaneous Criminal Case No. 25252 of 2022 (Jabalpur); Decided on 27.2.2025

Advocates:
Vishal Daniel, Amicus Curiae with Akshay Jha, and Alok Vagrecha, Amicus Curiae with Ishan Tignath and Abhinesh Soni; Anubhav Jain, Government Advocate for respondent/State.

Headnote:
(1) Doctrine -- doctrine of merger -- mere dismissal of Special Leave Petition does not attract doctrine of merger -- Special Leave Petition dismissed without commenting on merit would not become order of Court -- it cannot be said to be binding law under Art. 141 of Constitution -- doctrine of merger would not apply in case Special Leave Petition was dismissed at admission stage. (2000) 6 SCC 359 followed. [Para 25
(2) Criminal P. C., 1973 -- Ss. 438, 82, 83 and 299 -- Nagarik Suraksha Sanhita, 2023 -- Ss. 482, 84, 85 and 335 -- maintainability of application for anticipatory bail -- proceedings initiated against accused u/ss. 82 and 83 or u/s. 299 -- accused declared absconder or proclaimed offender -- held -- power u/s. 438 of CrPC is extraordinary and therefore cannot be curtailed -- however, there shall be restrictions with regard to grant of anticipatory bail, which will depend upon nature of offences alleged against accused, coupled with fact that such grant of anticipatory bail does not in any manner hamper and affect ongoing investigation of case -- consideration and grant of anticipatory bail would depend upon gravity and seriousness of offence involved -- such power should be exercised in very cautious manner and in extreme and exceptional cases only in interest of justice -- application for anticipatory bail is maintainable even if charge-sheet has been filed showing accused as declared absconder. M. Cr. C. No. 24897 of 2017 decided on 21.12.2017 and M. Cr. C. No. 32950 of 2020 decided on 9.9.2020 overruled. (2003) 8 SCC 77 and Criminal Appeal No. 4564 of 2024 decided on 12.11.2024 followed. 2014 (1) JLJ 365 (SC) distinguished. (2012) 8 SCC 730 and Special Leave Petition (Criminal) No. 7940 of 2023 decided on 14.3.2024 discussed. M. Cr.C. No. 5621 of 2020 decided on 12.5.2020, ILR [2020] MP 1477, AIR 1980 SC 1632, Special Leave Petitions (Criminal) No. 7281-7282 of 2017 decided on 29.1.2020, (2010) 1 SCC 684, (2005) UKHL 10 and ILR [1994] MP 294 referred to. [Paras 35 & 36
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ORDER

Kait, C.J. -- 1. By order dated 9.9.2022, the learned Single Judge referred following questions to be considered by this Court:--

“(i) Whether the anticipatory bail petition filed under section 438 of CrPC is maintainable, in case proceedings under sections 82 & 83 or section 299 of CrPC have been initiated against the accused ?

(ii) Whether the anticipatory bail petition filed under section 438 of CrPC is maintainable, when the accused has been declared as ‘absconder/ proclaimed offender’ under sections 82 and 83 or section 299 of CrPC by the authority competent ?”

2. The facts in brief relatable to the present petitioner are that he is an accused in connection with Crime No.276/2019 registered at Police Station Omti. District Jabalpur for offences punishable under sections 420, 406 and 409/34 of the IPC. After the investigation, on 15.12.2020, a charge-sheet was filed before the concerned Court showing him absconding. The proceedings under sections 82 and 83 of the Cr.P.C. were initiated against him. The petitioner was declared proclaimed offender and a perpetual warrant of arrest was issued against him. The bail application filed by the petitioner before the trial Court seeking anticipatory bail under section 438 of the Cr.P.C. was rejected vide order dated 25.4.2022. Thereafter, the petitioner approached this Court seeking anticipatory bail.

3. During the hearing before the learned Single Judge, a question of maintainability of the application for anticipatory bail was raised by the State. The learned Single Judge was of the view that on this issue, there is a conflict of opinion as earlier in the case of Gaurav Malviya v. State of M.P. M.Cr.C.No.32950/2020 decided on 9.9.2020 as well as in Bhupendra Singh v.. State of M.P. M.Cr.C.No.24897/2017 decided on 21.12.2017, it was held that the application for anticipatory bail is not maintainable whereas in the case of Balveer Singh Bundela v. State of M.P.: MCrC No.5621 of 2020 decided on 12.5.2020, the coordinate Bench held that so far as maintainability of anticipatory bail is concerned, it is maintainable even the person is declared absconder under section 82 of Cr.P.C.

4. Before referring the questions for consideration by this Court. the learned Single Judge noted the diversant views expressed by the different Benches on the issue in question. In the case of Bhupendra Singh (supra), the learned Single Bench of Gwalior Bench has held as follows:

"In the present case, the charge-sheet has already been filed. The Supreme Court in the case of Pradeep Sharma (supra), Le. (State of M.P. v. Pradeep Sharma 2014 (1) JLJ 365 = (2014) 2 SCC 171] has held that once a person is declared as absconding, then the application for grant of anticipatory bail is not maintainable.'

5. In the case of Gaurav Malviya (supra), the learned Single Bench of Gwalior Bench held as under :--

"This Court in the case of Bhupendra Singh v. State of Madhya Pradesh by order dated 21.12.2017 passed in MCRC No.24897/2017 had held that after filing of the charge-sheet showing the applicant absconding, the application under section 438 of CrPC is not maintainable. The said order of this Court has been affirmed by the Supreme Court by order dated 27.3.2018 passed in the case of Bhupendra Singh v. The State of Madhya Pradesh in SLP (Cri) No.2569/2018. Similarly, this Court in the case of Ku. Aditi Tyagi @ Gudia @ Rani v. State of Madhya Pradesh by order dated 12.1.2018 in MCRC No. 28068/2017 has held that where the charge-sheet has been filed against the applicant showing her/him absconding and the trial Court has issued the warrant of arrest, then the application for grant of anticipatory bail would not be maintainable. The said order of this Court has also been affirmed by the Supreme Court by order dated 19/3/2018 passed in the case of Ku. Aditi Tyagi @ Gudia @ Rani v. State of Madhya Pradesh in SLP (Cri) No. 2132/2018.

Since the charge-sheet against the applicant has been filed under secti