If anyone is declared as an absconder/proclaimed offender in terms of Section 82 of CrPC, he is not entitled to the relief of anticipatory bail: Supreme Court
If anyone is declared as an absconder/proclaimed offender in terms of Section 82 of CrPC, he is not entitled to the relief of anticipatory bail as upheld by the Hon’ble Supreme Court through the learned bench led by Justice M. R. Shah in the case of Prem Shankar Prasad v. The State of Bihar &amp; Anr. (CRIMINAL APPEAL NO.1209 OF 2021) The brief facts of the case are that the appellant filed an FIR against respondent No.2 for the offences punishable under sections 406, 407, 468, 506 of the Indian Penal Code, 1860. A warrant of arrest came to be issued by learned Chief Judicial Magistrate, Saran, Chapra. It appears that thereafter respondent No.2 – accused is absconding and concealing himself to avoid service of warrant of arrest. Learned Chief Judicial Magistrate issued a proclamation against respondent No.2 under section 82 Cr.P.C. Only thereafter, the accused filed anticipatory bail application before learned Trial Court. By a detailed order, the learned Trial Court dismissed the said anticipatory bail application and rejected the prayer for anticipatory bail on merits as well as on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.P.C have been issued, the accused is not entitled to the anticipatory bail. Thereafter the accused approached the High Court by way of present application and, ignoring the aforesaid relevant aspect, by the impugned judgment and order the High Court has allowed the said anticipatory bail by observing that in the event of his arrest/surrender within six weeks in the Court below, he may be released on bail subject to the conditions as laid down under section 438 (2) of Cr.P.C. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No.2 – accused, the original informant/complainant – appellant has preferred the present appeal. The Hon’ble Supreme Court held, “The High court has committed an error in granting anticipatory bail to respondent No.2 – accused ignoring the proceedings under Section 82­83 of Cr.P.C. At this stage, it is required to be noted that respondent No.2 ­ accused has been charge sheeted for the offences punishable under sections 406 and 420, etc. and a charge­sheet has been filed in the court of learned Magistrate Court. In view of the reasons stated above, the impugned judgment and order dated 14.08.2019 passed by the High Court granting anticipatory bail to respondent No.2 – accused is un­sustainable and is accordingly quashed and set aside.”
and order dated 14.08.2019 passed by the High Court of Digitally signed by RNatarajanDate: 2021.10.2116:32:23 ISTReason:Signature Not Verified 2. That first information report came to be filed by the appellant herein against respondent No.2 with Chapra Town Police Station Saran in case No.453 of 2018 for the offences punishable under sections 406 407 468 506 of the Indian Penal Code 1860. A warrant of arrest came to be issued by learned Chief Judicial Magistrate Saran Chapra on 19.12.2018. It appears that thereafter respondent No.2 of warrant of arrest. Thereafter learned Chief Judicial Magistrate issued a proclamation against respondent No.2 under section 82 Cr.PC. Only thereafter and issuance of proclamation under section 82 Cr.PC respondent No.2 accused filed anticipatory bail application before learned Trial Court dismissed the said anticipatory bail application and the ground that as the accused is absconding and even the the accused approached the High Court by way of present not be allowed the privilege of anticipatory bail ignoring the the High Court has allowed the said anticipatory bail by observing that in the event of his arrest surrender within six weeks in the Court below he may be released on bail on amount each to the satisfaction of the learned Chief Judicial Magistrate Saran Chapra and subject to the conditions as laid­ 4. Shri Rituraj Biswas learned Advocate appearing on behalf of circumstances of the case the High Court has committed a avoiding the arrest and even did not co­operate with investigating agency and even after the arrest warrants were issued the proceedings under sections 82­83 of Cr.PC were 4.2 It is submitted that though the factum of initiation of offences under sections 406 420 of IPC which were in detail considered by the learned Trial Court while rejecting the bail to respondent No.2 solely observing that the nature of that merely because it was a business transaction without further considering the nature of allegations the High Court 4.5 Relying upon the decision of this court in case of State of 4.6 It is further submitted that even subsequently a charge­sheet has been filed against the accused respondent No.2 for the High Court granting anticipatory bail to respondent No.2 5. Shri Devashish Bharuka learned Advocate appearing on behalf of the State has supported the appellant and has submitted accused a charge­sheet has been filed against the accused 6. Shri Abhishek learned Advocate appearing on behalf of respondent No.2 has vehemently submitted that in the facts and circumstances of the case the High Court has not that at the most the case may fall under section 138 of 6.2 It is submitted that as such respondent No.2 accused was 6.3 It is further submitted by the learned counsel appearing on charge­sheet has been filed in the court but the learned counsel appearing on behalf of the State and the learned has been filed against respondent no.2 accused for the accused. It has come on record that the arrest warrant was Judicial Magistrate dated 10.01.2019. Only thereafter learned Additional Sessions Judge Saran by a reasoned order The relevant observations made by the learned Additional Sessions Judge Saran while rejecting the anticipatory bail “Perused the record. The prosecution case as alleged in the typed application of the informant Prem Shankar Prasad is that the informant is a retailer shopkeeper of medicines in the name of Maa Medical Store Gandhi Chauk Chapra and the the name of Rajnish Pharma Mauna Pakari. The petitioner and the informant were on good terms so the informant gave Rs. 36 00 000 ­ to the 36 00 000 ­ then the petitioner gave a cheque of Rs. 10 00 000 ­ bearing cheque no. 137763 dated brothers of the petitioner misbehaved with the informant. The brothers of the petitioner also threatened not to contact the police or the consequences will be worst: On this informant that in para 4 there is a re­statement of the informant in which he has supported the prosecution case. In para 8 9 10 and 11 witness Amit Kumar Sinha Awadhesh Kumar Dhannu Kumar and Uday Shankar Prasad has been have supported the prosecution case. In para 16 prosecution case. In found true under sections 420 406 of IPC and 138 of NI Act. In para 23 sell the medicines of his company in course whereof he has borrowed a sum of Rs. 7 10 000 ­ from him. When he asked to return back the money he has issued a cheque of the aforesaid amount which was dishonor by his bank due to insufficient fund. In para 39 another witness Pramod Kumar Thakur has been examined who has borrowed a sum of Rs. 10 00 000 ­ on the pretext of purchasing a piece of land. When he demanded his money back. Rajnish Srivastava dishonored by the bank. The investigation in the 36 00 000 ­ to this petitioner in order to supply the amount was ever refunded. Admittedly the undertaking as there is nothing on record to substantiate the aforesaid averments but the fact said amount has issued a cheque of Rs.10 00 000 ­ bearing cheque no. 137763 dated the bank but the same was dishonored with record I further find that the petitioner is in the habit of borrowing money from different persons and then used to make default in payment that it was brought to the notice of the High Court that respondent No.2 accused is absconding and even the allegations of cheating etc. which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just 7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma declared as an absconder proclaimed offender in terms of “14. In order to answer the above question it is apprehending arrest.—(1) Where any High Court or the Court of Session for a and that court may after taking into consideration inter alia the following the fact as to whether he has previously the possibility of the applicant to flee iv) where the accusation has been made either reject the application forthwith or issue an interim order for the grant of Provided that where the High Court or as the case may be the Court of Session has section or has rejected the application for an officer in charge of a police station to The above provision makes it clear that the power exercisable under Section 438 of the Code is 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 “16. Section 438 is a procedural provision of an individual who is entitled to plead innocence since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the believe’ that he may be arrested in a non­ bailable offence. Use of the expression the applicant may be arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’ for which reason it is not some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may the applicant is based that he may be arrested in non­bailable offence must be is made to the High Court or the Court of Session it is for the court concerned to cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to only if there is something tangible to go by applicant s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the arrested for whichever offence whatsoever’ it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual s liberty it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or in the background of the legal position set to be a case where any order in terms of 8 SCC 730] this Court (of which both of us were an absconder or proclaimed offender in terms of is clear that the present appellant was not available for interrogation and investigation and was declared as ‘absconder’. Normally when the accused is ‘absconding’ and or concealing himself in order to avoid execution of warrant and declared as a the Code he is not entitled to the relief of declared as an absconder proclaimed offender in Thus the High court has committed an error in granting anticipatory bail to respondent No.2 accused ignoring the the anticipatory bail to respondent No.2 accused that the nature of accusation is arising out of a business transaction more particularly sections 406 420 467 468 etc. What is required to be considered is the nature of allegation and the of a business transaction. At this stage it is required to be for the offences punishable under sections 406 and 420 etc and a charge­sheet has been filed in the court of learned In view of the above and for the reasons stated above the High Court granting anticipatory bail to respondent No.2 accused to pray for regular bail which may be considered in