Case BriefsSupreme Court

Supreme Court: In a case where two accused absconded and hence, the trial was split and three accused came to be tried for dacoity under Section 391 IPC, the bench of Dr. DY Chandrachud and MR Shah*, JJ has held that merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out.

In the case at hand in the FIR there was a reference to five persons involved in committing the crime. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery

It was, however, argued that since only three accused were tried and subsequently one another accused Benny came to be tried, the condition precedent for bringing the case under Section 391 IPC (Dacoity) has not been satisfied as the involvement of five or more persons in commission of the offence has not been established and proved and only four accused were tried.

Rejecting the aforementioned submission, the Court noted that as such all the accused were charged by the trial Court for the offences under Section 395 IPC as well as 397 IPC. With the aforesaid offences parties went for trial.

“Therefore, once a case under Section 391 IPC punishable under Section 395 IPC is made out, they can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC as no prejudice shall be caused to the accused.”

The Court, further, stated that what is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried.

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

Therefore, in the facts and circumstances, it was held that the accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC.

[Ganesan v. State, 2021 SCC OnLine SC 1023, decided on 29.10.2021]


For State: Senior Advocate Dr. Joseph Aristotle S

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

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

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has explained the principles governing cancellation of bail and has held that it is necessary that ‘cogent and overwhelming reasons’ are present for the cancellation of bail.

“Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non-conducive to fair trial, making it necessary to cancel the bail.”

Principles governing the cancellation of bail

Daulat Ram v. State of Haryana, (1995) 1 SCC 349

“Rejection of bail in a non¬bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”

Adding to the abovementioned position, the Court, in the present case, said that

“… bail can also be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system.”

What was the case about?

The Court was hearing the case wherein the mother-in-law of the deceased was charged under Sections 304B, 302 read with 120B fter the deceased’s father alleged that, just two months into her marriage with the accused, his daughter died an unnatural death in suspicious circumstances . In these twi months, the accused family members harassed and physically tortured the deceased on the pretext of dowry demands.

After two failed failed attempts of seeking anticipatory bail, the mother-in-law went on a run and was declared an absconder. She continued to evade arrest until Supreme Court granted bail to her younger son i.e. deceased’s brother-in-law.

Taking advantage of this subsequent event and presenting the same as a material change in  circumstance, she filed two petitions before the High Court, seeking quashing of the order that declared her a ‘proclaimed offender’ and further sought the relief of anticipatory bail on the ground of parity.

The Supreme Court noticed that

“… the High   Court   seems   to   have   been primarily swayed by the fact that the Respondent-Accused was ‘co-operating’ with investigation. This is, however, contrary to the record as the Respondent¬Accused remained absconding for more than two years after being declared a proclaimed offender on 23.04.2018. She chose to join investigation only after securing interim bail from the High Court. She kept on hiding from the Investigating Agency as well as Magistrate’s Court till she got protection against arrest from the High Court in the 2nd round of bail proceedings.”

On procedural irregularity in declaring the deceased’s mother-in-law as an absconder

The Court held that even if there was any procedural irregularity in declaring the Respondent-Accused   as an absconder, that by itself was not a justifiable ground to grant pre-arrest bail in a case of grave offence save where the High Court on perusal of case-diary and other material on record is, prima facie, satisfied that it is a case of false or overexaggerated accusation. Such being not the case here, the High Court went on a wrong premise in granting anticipatory bail to the Respondent-Accused.

On ground of parity with the deceased’s brother in law

The allegations in the FIR against the Respondent¬Mother¬in-Law and her younger son are materially different. While some of the allegations against all the family members are common but there are   other specific allegations accusing the Respondent¬ Mother¬in-Law of playing a key role in the alleged offence.

“The conduct of the Respondent¬Accused in absconding for more than two years without any justifiable reason should have weighed in mind while granting her any discretionary relief. These facts put her on a starkly different pedestal than the co0accused with whom she seeks parity.”


“The offence alleged in the instant case is heinous and protrudes our medieval social   structure which   still wails for reforms despite multiple efforts made by Legislation and Judiciary.”

The Court noticed that it has to be borne in mind that the deceased met with a tragic end within three   months of her marriage and a young life came to an abrupt end befor realizing any of her dreams which were grimly shattered.   She having died an unnatural death in her matrimonial home, the Investigating Agency, deserves a free hand to investigate the role of the Respondent-Mother-in-law, if any, in the unnatural and untimely death of her daughter in-law.

[Vipin Kumar Dhir v. State of Punjab,  2021 SCC OnLine SC 854, decided on 04.10.2021]

*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant