Anticipatory bail to an absconder? Supreme Court says no!

Supreme Court: In a case where the Patna High Court had granted anticipatory bail to an absconder, the bench of MR Shah* and AS Bopanna, JJ has set aside the said order and has held that the if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail.

In the present case, FIR was lodged against respondent no 2 – an absconder, for   the   offences punishable under sections 406, 407, 468, 506 of the Penal Code, 1860.

The Trial Court dismissed the anticipatory bail application of the respondent on merits as well as on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail.

However, despite the fact that it was specifically pointed to the High Court that since the process of proclamation under section 82 & 83 Cr.PC have been issued, the accused should not be allowed the privilege of anticipatory bail, ignoring the aforesaid relevant aspect, the High Court allowed the said   anticipatory bail solely observing that the nature of accusation was arising out of a business transaction.

Finding the High Court’s order erroneous, the Supreme Court held that

“Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction.”

The Court noted that respondent No.2 – accused has been charge¬sheeted for the offences punishable under sections 406 and 420, etc. and a charge-sheet has been filed in the court of learned Magistrate Court.

Hence, the order of the High Court granting anticipatory bail to respondent No.2 – accused was held to be un­sustainable and was set aside.

Important Rulings

State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171

If anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail.

“…the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.”

Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730

“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.”

[Prem Shankar Prasad v. State of Bihar, 2021 SCC OnLine SC 955, decided on 21.10.2021]


For State: Advocate Devashish Bharuka

For Respondent No 2: Advocate Abhishek

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

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