absconder anticipatory bail

Supreme Court: In an appeal against order dated 4-04-2023 passed by Patna High Court dismissing application for anticipatory bail pertaining to First Information Report (‘FIR’) filed under Sections 341, 323, 354, 354(B), 379, 504, 506 and 149 of the Penal Code, 1860 (‘IPC’) and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999 (‘Witch Act’), the Division Bench of CT Ravikumar and Sanjay Kumar, JJ. clarified that since the appellants were defying bailable as well as on-bailable warrants, even absconding the proceedings were not entitled to anticipatory bail.

Timeline of Events

The Court pointed out that the FIR was registered on 28-03-2018, the Court took cognizance of the offences on 20-02-2021, chargesheet was filed on 8-08-2022 and summons were issued for appearance on 12-04-2022. Due to absence on the said date, the Trial Court issued bailable warrants on 12-04-2022. On 25-05-2022, the appellants appeared and applied for regular bail, which was accordingly granted. The same was followed by hearing on cancellation of bail, during which the appellants neither appeared before the Trial Court not sought regular bail but moved a bail-cum-surrender application before Trial Court, which was withdrawn on 23-08-2022. The Trial Court fixed the date of appearance as 30-08-2022, before which, the appellants filed application for anticipatory bail before the Sessions Court and informed the Trial Court about the same on 27-09-2022, the same day on which the bail application was dismissed. Due to their absence, the Trial Court issued non-bailable warrants and listed the matter on 4-11-2022 for production. The appellants approached the High Court seeking anticipatory bail while the non-bailable warrants were pending against them. On 4-01-2023, the Trial Court issued a proclamation under Section 82(1) of CrPC since the appellants did not appear even after issuance of non-bailable warrants and proceedings under Section 83 of CrPC were also initiated. The High Court on 4-04-2023 dismissed anticipatory bail application for maintainability, taking note of the proceedings under Sections 82 and 83 of CrPC.

The Court considered the question – During pendency of application for anticipatory bail without any interim protection, whether initiation of proceedings for issuance of proclamation under Section 82, CrPC would make that application worthy for further consideration?

Court’s Analysis

The Court started with reference to Prem Shankar Prasad v. State of Bihar, (2022) 14 SCC 516 which was rendered after referring decisions in State of M.P. v. Pradeep Sharma, (2014) 2 SCC 171 and Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730 regarding declination of bail to proclaimed offender/absconder in terms of Section 82 of the Criminal Procedure Code, 1973 (‘CrPC’).

The Court hinted towards the consistent view of restricting the grant of anticipatory bail in exceptional circumstances. With reference to HDFC Bank Ltd. v. J.J. Mannan, (2010) 1 SCC 679, the Court explained that the object of Section 438 of CrPC was protection against harassment or humiliation at the hands of the complainant to satisfy his/her grudge or personal vendetta. The Court went on to say that “When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hinderance to the normal flow of investigation method when called upon to exercise the power under Section 438, CrPC, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant.” The Court hinted that a person is bound to submit himself to the authority of law and remains at liberty to take legal recourse.

The Court explained that for initiation of action under Section 82 of CrPC, prior issuance of arrest warrant by the Court is required, and the words ‘reason to believe’ reflect that the Magistrate concerned must be subjectively satisfied that the person concerned has absconded or has concealed himself.

The Court found the appellant’s contention as unsustainable because they did not appear before the Court on issuance of bailable warrants but moved applications for bail, even after issuance of proclamation under Section 82 of CrPC. The Court pointed towards the other co-accused who appeared and obtained regular bail pursuant to the issuance of bailable warrants and found the appellants defying the authority of law and moving applications for while apprehending arrest owing to their non-attendance and dis-obedience. The Court pointed at Section 70(2) of CrPC which mandates every warrant issued to remain in force until cancelled by the Court which issued the same, or until the same is executed. The Court clarified that the bailable warrants and even non-bailable warrants in the instant matter were neither cancelled nor executed.

The Court agreed with Savitaben Govidbhai Patel v. State of Gujarat, 2004 SCC OnLine Guj 345 that “filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings are instituted.” The Court further elaborated that “What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest.”

While considering aspect of a bar over Trial Court for proceeding under Section 82 of CrPC merely because application for anticipatory bail was filed, the Court found no room for such contention. The Court further clarified that “in the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, CrPC, in accordance with law.”

On bail being the rule, the Court justified its stance that “Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power.”

The Court concluded that “Since their action is nothing short of defying the lawful orders of the Court and attempting to delay the proceedings, this appeal must fail” and accordingly dismissed the instant appeal.

[Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282, decided on 14-03-2024]

Judgment authored by: Justice CT Ravikumar

Justice Chudalayil Thevan Ravikumar: Judicial Odyssey of a Zoology graduate to the Supreme Court of India

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