Anticipatory bail applications are maintainable even if the accused is declared a proclaimed offender, provided the court considers the gravity of the offence.

ORDER

Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice:

1. By order dated 09.09.2022, 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 25.04.2022. 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 Vs. State of M.P. M.Cr.C.No.32950/2020 decided on 09.09.2020 as well as in Bhupendra Singh Vs. 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 Vs. State of M.P. : MCrC No.5621 of 2020 decided on 12.05.2020, 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) i.e. [State of M.P. Vs. Pradeep Sharma (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 (