Himachal Pradesh High Court: Anoop Chitkara J., considering the peculiar facts of the present case, allows anticipatory bail to a proclaimed offender, imposing several conditions.
On the allegations made by a girl, aged 15 years, against the petitioner of having coitus with her at the end of May 2013, by entering her home and also committing rape on her in the forest on 30-06-2013, when she was returning from school, the police registered FIR dated 19-07-2013, under Sections 376, 506 of the Penal Code, 1860, and Section 4 of Protection of Children from Sexual Offences Act, 2012, disclosing cognizable and non-bailable offences.
The police conducted the investigation, took the victim for her medical examination, got her statement recorded under S. 164 CrPC, but failed to nab the accused. Subsequently, the police filed a charge sheet without arresting the accused. After taking cognizance of the offence, the Court issued Non-bailable Warrants (NBW) and upon its non-execution, allowed the application of the prosecution and proceeded against the accused under Section 82 CrPC, declaring the petitioner as a proclaimed offender. It is to be noted that the contents of the bail petition and the status report do not reveal any criminal history.
Counsel for the petitioner
Abhilasha Kaundal, Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Further, the conduct of the accused applicant must be taken into account as much as, being declared a proclaimed offender, the petitioner voluntarily approached this Court by filing a petition for anticipatory bail. Accused explains that he and the victim were in love, and to make out an exceptional case, further states that on noticing that the girl had an affair with one Jyoti Prakash, he became melancholic and left for a distant place, far away from her. Accused further contends that due to the Lockdown of the COVID-19 pandemic, he was forced to return home and got information that an FIR was lodged against him, and that he is a proclaimed offender.
Counsel for the respondent
While opposing the bail, Nand Lal Thakur, Additional Advocate General contended that an absconder whom the Court has declared as a proclaimed offender has no legal rights to file an application under Section 438 CrPC.
Opinion of the Amicus
Ashok Tyagi, Amicus Curiae carved out a distinction in the pronouncements of Supreme Court and states that this Court has the jurisdiction to grant anticipatory bail, in peculiar facts, even to a proclaimed offender.
The Court, in addition to its decision, cited the following cases;
- Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, on the position of anticipatory bail against a proclaimed offender; “Para 10. (…)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 is not entitled the relief of anticipatory bail.”
- State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, reiterated the rationale of the aforementioned case.
- Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42, A three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires a change in fact or situation.
- Dataram Singh v. State of U.P., (2018) 3 SCC 22, “…grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions.”
- Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, A Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions on the grant of bail.
In the light of the precedent cited and the facts of the case, the Court allowed the bail application remarking, “Pre-trial incarceration needs justification depending upon the offense’s heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.” Moreover, the Court enumerated a list of conditions that the applicant must abide by, during the course of bail.[Mahender Kumar v. State of Himachal Pradesh, 2020 SCC OnLine HP 2119, decided on 26-10-2020]
Sakshi Shukla, Editorial Assistant has put this story together