Law laid down:
1- Anticipatory bail application is maintainable even after filing of
charge-sheet, till the person is arrested as per the mandate of
Apex Court in the cases of Gurbaksh Singh Sibbia etc. Vs.
The State of Punjab, AIR 1980 SC 1632, Sushila Aggarwal
and others Vs. State (NCT of Delhi) and another in SLP
(Criminal) Nos.7281-7282/2017 passed on 29-01-2020,
Bharat Chaudhary and another Vs. State of Bihar and
another, (2003) 8 SCC 77 and Ravindra Saxena Vs. State of
Rajasthan, (2010) 1 SCC 684.
2- So far as maintainability of anticipatory bail is concerned, it ismaintainable even the person is declared absconder under
Section 82 of Cr.P.C. but on merits case would be governed by
the judgment of Apex Court rendered in the case of Lavesh Vs.
State (NCT Of Delhi), (2012) 8 SCC 73.
3- Section 82/83 Cr.P.C. is transient provision subject to finality of
proceedings as provided under Sections, 84, 85 and 86 of
Cr.P.C.
Therefore, in the considered opinion of this Court, even if the
police authority has declared award or prepared Farari
Panchnama even then anticipatory bail application is
maintainable, however, it is to be seen on merits that whether
that application deserves to be considered and allowed as per
the factors enumerated in Section 438 of Cr.P.C. itself and if any
of those factors are not satisfied then the Court certainly has
discretion to reject it. The said discretion has been given by
Constitutional Bench decision of Hon'ble Apex Court in the
case of Gurbaksh Singh Sibbia etc. (supra).
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
:SINGLE BENCH:
SHRI JUSTICE ANAND PATHAK
MISCELLANEOUS CRIMINAL CASE NO.5621/2020
Balveer Singh Bundela Vs. State of Madhya Pradesh
{Delivered on 12th day of May, 2020}
1. This is first bail application preferred by the applicant under
Section 438 of Cr.P.C. wherein he is apprehending his arrest in a
case registered vide Crime No.448/2019 at Police Station
Vishwavidyalaya, District Gwalior for alleged offence
punishable under Sections 376, 386, 506 of IPC.
2. It is submitted by learned counsel appearing for the applicant
that police has registered a false case against him. As per FIR,
date of incident appears to be 27-10-2019 whereas FIR lodged
on 15-12-2019, apparently delayed in nature. Applicant and
prosecutrix entered into wedlock through Hindu rites and
rituals and copy of marriage certificate and photographs in this
regard are attached with the application.
3. As per allegations on the pretext of marriage, alleged rape has
been committed by applicant. Some amount has been transferred
in favour of the prosecutrix by the applicant which reveals that
both were in relationship. Even otherwise, on the pretext of
marriage if physical intimacy developed then the same does
not constitute offence of rape. In support of his submission, he
relied upon the judgments of Apex Court in the case of Pramod
Suryabhan Pawar Vs. State of Maharashtra and others, AIR
2019 SC 4010 and Dr. Dhruvaram Murlidhar Sonar Vs.
State of Maharashtra and others, AIR 2019 SC 327.
4. It is further submitted that after registration of offence both
tried to settle the matter and therefore, petition has been
preferred under Section 482 of Cr.P.C. for compromise bearing
M.Cr.C.No. 930/2020 which was dismissed as withdrawn on 28-
01-2020 because the allegations were of Section 376 of IPC
also (in light of various judgments of Apex Court), therefore,
compromise could not be given effect to. This itself indicates
that domestic nature of relationship and incompatibility into it
has been tried to be converted into offence of rape. Applicant is
aged 41 years of age and prosecutrix is around 41-42 years of
age. Therefore, at such matured stage, if two adults enter into
wedlock and thereafter their domestic relationship is severed for
any reason then the same does not amount to commission of
offence of rape. He is reputed citizen of locality and chance of
absconsion is remote. Confinement would bring social
disrepute and personal inconvenience. He undertakes to
cooperate in investigation and would make himself available as
and when required by the investigating officer and also
undertakes that he would not be source of harassment and
embarrassment to the complainant party in any manner.
Consequently, he prayed for bail of anticipatory nature.
5. Learned counsel for the applicant further responded to the
queries raised by this Court about maintainability of the
application for anticipatory bail under Section 438 of Cr.P.C. in
view of the legal position that when any person has been
declared as absconder and award of Rs.5,000/- has been
declared by the Superintendent of Police as per Police
Regulation 789 (as per case diary of instant case) then his
prospects to get anticipatory bail gets extinguished, learned
counsel for the applicant submits that it is not correct
application of law because here in the present case the applicant
has not been declared absconder so far as per Sections 82 and
83 of Cr.P.C. Therefore, legal bar created by the judgments of
Apex Court in the matter of Lavesh Vs. State (NCT Of Delhi),
(2012) 8 SCC 73 as well as in the matter of State of M.P. Vs.
Pradeep Sharma, (2014) 2 SCC 171 is not applicable in the
present set of facts.
6. It is submitted by learned counsel for the applicant that police
is at liberty to declare award over any person for apprehension
who is not available for investigation but this may be their
device to deny the applicant (or other similarly situated persons)
a chance to get anticipatory bail.
7. On the other hand, learned PP for the respondent/State opposed
the prayer and on the basis of case diary submits that the
applicant is required for investigation. Rs.5,000/- as award has
been declared by the Superintendent of Police, Gwalior over his
arrest vide proclamation dated 30-01-2020 as per M.P. Police
Regulations, para 80 and the fact that several Farari
Panchnamas (arrest memos) are being prepared against him for
ensuring his appearance but he did not submit, therefore, he is
absconding and therefore his bail application be dismissed
accordingly. He relied upon the judgment of Hon'ble Apex
Court in the matter of Lavesh (supra) and Pradeep Sharma
(supra).
8. Learned counsel for the complainant also matched the
vehemence of counsel for the State and submitted that the
applicant developed physical intimacy with the prosecutrix
under the pretext of solemnization of marriage and on the
promise of giving land and flat to the prosecutrix. On 16-11-
2019 he solemnized marriage with the prosecutrix without
giving divorce to his first wife and committed rape on 11-12-
2019. Previously also he committed rape over her on 26/27-10-
2019. He is a proclaimed offender under Section 82 of Cr.P.C.
therefore, as per the judgments of Lavesh (supra) and Pradeep
Sharma (supra), he cannot be given the benefit of grant of
anticipatory bail. Learned counsel for the complainant also
6 M.Cr.C.No.5621/2020
raised the question of maintainability of the application under
Section 438 of Cr.P.C. in view of the above referred judgments.
According to learned counsel, once a person is declared as
absconder by way of cash award then application under Section
438 of Cr.P.C. is not maintainable. Since the applicant also
extended threat to the complainant, therefore, on this count also
bail application be dismissed.
9. This Court requested Shri V.K. Saxena, learned senior counsel
and Shri V.D. Sharma counsel to assist the Court as amicus
curiae and resultantly they addressed this Court on following
questions raised in this case:
i- Whether after being declared as an absconder under
Section 82/83 of Cr.P.C. or by police through Farari
Panchnama or through declaration of cash award for
apprehension of accused, his application under Section
438 of Cr.P.C. seeking anticipatory bail before High
Court or Sessions Court is maintainable or not ?
ii- Whether application for anticipatory bail is barred even
after filing of charge-sheet ?
10. Shri Saxena, learned senior counsel was ably assisted by Shri
Rajesh Kumar Shukla, Shri Atul Gupta and Shri S.K.
Shrivastava, Advocates.
11. Learned senior counsel referred the judgment of Constitution
Bench of Apex Court in the case of Gurbaksh Singh Sibbia
7 M.Cr.C.No.5621/2020
etc. Vs. The State of Punjab, AIR 1980 SC 1632 and
submitted that the concept of anticipatory bail has been
elaborately discussed by the Hon'ble Apex Court as
incorporated in Cr.P.C. by virtue of 41st report of Law
Commission. It is still holding the field, as reiterated by the
Constitution Bench of Apex Court in its recent pronouncement
in the case of Sushila Aggarwal and others Vs. State (NCT of
Delhi) and another in SLP (Criminal) Nos.7281-7282/2017
passed on 29-01-2020.
12. He submits that different facets of Section 438 of Cr.P.C. have
been elaborately dealt with in these judgments and therefore,
law is well settled that personal liberty is such sacrosanct that
it cannot be sacrificed at the whims and fancies of Investigating
Officer. He referred the solemn duty and its constant violation
by the Investigating Officer and other officers to curtail the
prospects of personal freedom of person by declaring him
absconder by issuing cash reward or preparing Farari
Panchnama.
13. According to him, such instances render the affected person at
the mercy of Police Officer and his personal freedom is
compromised. Therefore, personal liberty cannot be curtailed
and in support of his submission he referred various judgments
to bring home the fact that personal liberty of an individual by
way of seeking anticipatory bail can be considered even after
8 M.Cr.C.No.5621/2020
filing of charge-sheet.
14. Shri V.D. Sharma, learned amicus curiae also placed his
submission while taking history of Section 438 of Cr.P.C. by
referring Law Commission of India report 41st of year 1969
which categorically recommended for insertion of provision of
anticipatory bail in the old Cr.P.C. of 1898 (earlier provision
Section 497-A) and by virtue of same, Section 438 of Cr.P.C. of
1973 is offspring of said report. He referred Law Commission
of India report No.203 of the year 2005 and Law Commission
of India report No.268 of the year 2017 which deal with the
developments, difficulties and proposed amendments in respect
of anticipatory bail. He referred definition of 'Absconder' and
relied upon the judgments in support of his submissions
rendered by Apex Court in the matter of Sunil Clifford Daniel
Vs. State of Punjab, (2012) 11 SCC 205, Sujit Biswas Vs.
State of Assam, 2013 Cr.L.J. 3140 and the judgment rendered
by Madras High Court in the matter of KTMS Abdul Kader
Vs. Union of India, 1977 Cri.L.J. 1708. Through various
judgments relied upon, he tried to bring home the fact that mere
abscondence is not sufficient to deny the valuable right of
personal freedom of an individual. This is to be seen in the
facts and circumstances of each case and he also relied upon
the judgment of Apex Court in the matter of Gurbaksh Singh
Sibbia etc. (supra) and Siddharam Satlingappa Mhetre Vs.
9 M.Cr.C.No.5621/2020
State of Maharashtra, AIR 2011 SC 312 to submit that
anticipatory bail is maintainable at any stage till accused is not
arrested but with the only caveat/condition that each case bears
different factual matrix, therefore, merit of the case has to be
dealt with accordingly.
15. Heard learned counsel for the parties as well as learned Amicus
Curiae at length and perused the case diary.
16. Here, the factual contours of case indicates that the applicant
and prosecutrix are in their forties (aged 41-42 years) and as per
the allegations, the applicant was already married and
interestingly on the false promise of marriage, he committed
rape and as per contents of FIR itself, he solemnized marriage
with the prosecutrix on 16-11-2019 and thereafter continued to
live as her husband for some time. As per submission of
learned counsel for the applicant, the application under Section
482 of Cr.P.C. for compromise by way of M.Cr.C.No.930/2020
was also filed earlier by the parties to settle their dispute but
since the allegation was under Section 376 of IPC also,
therefore, the said prayer for settlement was rejected by this
Court.
17. Here, the main objection of counsel for the respondent/State
and complainant is preparation of Farari Panchnama and
declaration of award of Rs.5,000/- over the applicant to secure
his arrest and therefore, the respondent/State and complainant
10 M.Cr.C.No.5621/2020
sought dismissal of this application on this ground mainly.
18. Constitution Bench judgment of Apex Court in the matter of
Gurbaksh Singh Sibbia etc. (supra) takes all possible
contours into its ambit. Full Bench judgment of Punjab &
Haryana High Court from which case originates, rejected the
application for bail after summarizing eight legal propositions
and all those legal propositions were considered and repelled
by the Constitution Bench in very categorical terms. Some of
the paras of the judgment are worth reproduction in the present
case also; to consider the importance given by the Apex Court
to the Personal Liberty of an individual:
“15. Judges have to decide cases as they
come before them, mindful of the need to keep
passions and prejudices out of their decisions.
And it will be strange if, by employing judicial
artifices and techniques, this Court cuts down the
discretion so wisely conferred upon the Courts, by
devising a formula which will confine the power
to grant anticipatory bail within a strait-jacket.
While laying down cast-iron rules in a matter like
granting anticipatory bail, as the High Court has
done, it is apt to be overlooked that even Judges
can have but an imperfect awareness of the needs
of new situations. Life is never static and every
situation has to be assessed in the context of
emerging concerns as and when it arises.
Therefore, even if this Court were to frame a
'Code for the grant of anticipatory bail', which
11 M.Cr.C.No.5621/2020
really is the business of the legislature, it can at
best furnish broad guidelines and cannot compel
blind adherence. In which case to grant bail and
in which to refuse it is, in the very nature of
things, a matter of discretion. But apart from the
fact that the question is inherently of a kind
which calls for the use of discretion from case to
case, the legislature has, in terms express,
relegated the decision of that question to the
discretion of the Court, by providing that it may
grant bail "if it thinks fit". The concern of the
Courts generally is to preserve their discretion
without meaning to abuse it. It will be strange
if the Court exhibits concern to stultify the
discretion conferred upon the Courts by law.
21. -------A wise exercise of judicial power
inevitably takes care of the evil consequences
which are likely to flow out of its intemperate use.
Every kind of judicial discretion, whatever may be
the nature of the matter in regard to which it is
required to be exercised, has to be used with due
care and caution. In fact, an awareness of the
context in which the discretion is required to be
exercised and of the reasonably foreseeable
consequences of its use, is the hall mark of a
prudent exercise of judicial discretion. One ought
not to make a bugbear of the power to grant
anticipatory bail.
26. We find a great deal of substance in Mr.
Tarkunde's submission that since denial of bail
12 M.Cr.C.No.5621/2020
amounts to deprivation of personal liberty, the
Court should lean against the imposition of
unnecessary restrictions on the scope of Section
438, especially when no such restrictions have
been imposed by the legislature in the terms of
that section. Section 438 is a procedural provision
which is concerned with the personal liberty of
the individual, who is entitled to the benefit of the
presumption of innocence since he is not, on the
date of his application for anticipatory bail,
convicted of the offence in respect of which he
seeks bail. An overgenerous infusion of
constraints and conditions which are not to be
found in Section 438 can make its provisions
constitutionally vulnerable since the right to
personal freedom cannot be made to depend on
compliance with unreasonable restrictions. The
beneficent provision contained in Section 438
must be saved, not jettisoned. No doubt can linger
after the decision in Maneka Gandhi that in order
to meet the challenge of Article 21of the
Constitution, the procedure established by law for
depriving a person of his liberty must be fair, just
and reasonable. Section 438, in the form in which
it is conceived by the legislature, is open to no
exception on the ground that it prescribes a
procedure which is unjust or unfair. We ought, at
all costs, to avoid throwing it open to a
Constitutional challenge by reading words in it
which are not be found therein.”
19. Similarly, the Apex Court in the case of Bharat Chaudhary
and another Vs. State of Bihar and another, (2003) 8 SCC 77
13 M.Cr.C.No.5621/2020
has held in categorical terms that even after taking cognizance
of complaint by the trial Court or after filing of charge-sheet by
the Investigating Agency, a person can move an application
for anticipatory bail and Section 438 of Cr.P.C. nowhere
prohibits the Court concerned from grant of anticipatory bail in
appropriate case. Relevant extract is reproduced as under:
“7. From the perusal of this part of Section 438 of
the Crl. P.C., we find no restriction in regard to
exercise of this power in a suitable case either by
the Court of Sessions, High Court or this Court
even when cognizance is taken or charge sheet is
filed. The object of Section 438is to prevent undue
harassment of the accused persons by pre-trial
arrest and detention. The fact, that a Court has
either taken cognizance of the complaint or the
investigating agency has filed a charge-sheet,
would not by itself, in our opinion, prevent the
concerned courts from granting anticipatory bail
in appropriate cases. The gravity of the offence is
an important factor to be taken into consideration
while granting such anticipatory bail so also the
need for custodial interrogation, but these are
only factors that must be borne in mind by the
concerned courts while entertaining a petition for
grant of anticipatory bail and the fact of taking
cognizance or filing of charge sheet cannot by
themselves be construed as a prohibition against
the grant of anticipatory bail. In our opinion, the
courts i.e. the Court of Sessions, High Court or
this Court has the necessary power vested in them
14 M.Cr.C.No.5621/2020
to grant anticipatory bail in non-bailable
offences under Section 438 of the Crl. P.C. even
when cognizance is taken or charge sheet is filed
provided the facts of the case require the Court to
do so.”
20. Later on in 2010, the Apex Court in the case of Ravindra
Saxena Vs. State of Rajasthan, (2010) 1 SCC 684 in
categorical terms held that anticipatory bail can be granted at
any time so long as the applicant has not been arrested, meaning
thereby maintainability of an application under Section 438 of
Cr.P.C. does not lie at the mercy of any Investigating
Agency/Officer or any other consideration including provisions
of Cr.P.C. as tried to be projected by the respondent. Relevant
extract for ready reference is reproduced as under:
“We may notice here that the provision with
regard to the grant of anticipatory bail was
introduced on the recommendations of the Law
Commission of India in his 41st Report dated
24.09.1969. The recommendations were
considered by this Court in a Constitution Bench
decision in the case of Gurbaksh Singh Sibbia
and others vs. State of Punjab. Upon
consideration of the entire issue this Court laid
down certain salutary principles to be followed in
exercise of the power under Section 438Cr.P.C.
by the Sessions Court and the High Court. It is
clearly held that the anticipatory bail can be
granted at any time so long as the applicant has
not been arrested. When the application is made
15 M.Cr.C.No.5621/2020
to the High Court or Court of Sessions it must
apply its own mind on the question and decide
when the case is made out for granting such
relief.”
21. Recently, the Constitution Bench of Hon'ble Apex Court in the
matter of Sushila Aggarwal and others (supra) has considered
the question in respect of Section 438 of Cr.P.C. and question
centered around to the extent of period of protection granted to
a person under Section 438 of Cr.P.C. and life of anticipatory
bail. Questions were as follows:
“(1) Whether the protection granted to a person
under Section 438 CrPC should be limited to a
fixed period so as to enable the person to
surrender before the Trial Court and seek regular
bail.
(2) Whether the life of an anticipatory bail
should end at the time and stage when the
accused is summoned by the court.”
22. Although questions were having mixed trappings vis a vis
present set of facts but reason and conclusion drawn by the
Constitution Bench appears to be of great over this Court,
relevant extract are reproduced as under:
“47. At this stage, it would be essential to clear
the air on the observations made in some of the
later cases about whether Section 438 is an
essential element of Article 21. Some judgments,
notably Ram Kishna Balothia & Anr. (supra) and
Jai Prakash Singh v State of Bihar held that the
16 M.Cr.C.No.5621/2020
provision for anticipatory bail is not an essential
ingredient of Article 21, particularly in the
context of imposition of limitations on the
discretion of the courts while granting
anticipatory bail, either limiting the relief in
point of time, or some other restriction in respect
of the nature of the offence, or the happening of
an event. We are afraid, such observations are
contrary to the broad terms of the power declared
by the Constitution Bench of this court in Sibbia
(supra). The larger bench had specifically held
that an “over-generous infusion of constraints
and conditions which are not to be found in
Section 438 can make its provisions
constitutionally vulnerable since the right to
personal freedom cannot be made to depend on
compliance with unreasonable restrictions”.”
23. Constitution Bench took note of 203rd report of Law
Commission along with other previous reports and considered
the judgment rendered by Apex Court in the case of Salauddin
Abdulsamad Shaikh v. State of Maharashtra , (1996) 1 SCC
667 and Adri Dharam Das Vs. State of West Bengal, (2005) 4
SCC 303 and thereafter overruled those judgments which lay
down restrictive conditions or terms limiting grant of
anticipatory bail to the period of time.
24. From the discussion of judgments of Constitution Bench in the
case of Gurbaksh Singh Sibbia etc. and Sushila Aggarwal
(supra) as well as judgment of Apex Court in the case of
17 M.Cr.C.No.5621/2020
Bharat Chaudhary and Ravindra Saxena (supra), it is
apparently clear that no bar can exist against a person seeking
anticipatory bail. In other words application under Section 438
of Cr.P.C. is maintainable even after filing of charge-sheet or
till the person is not arrested.
25. It is to be kept in mind that Personal Liberty of an individual as
ensured by Section 438 of Cr.P.C. is embodiment of Article 21
of Constitution of India in Cr.P.C. Therefore, scope and
legislative intent of Section 438 of Cr.P.C. is to be seen from
that vantage point.
26. So far as submission of parties regarding judgments rendered
by the Apex Court in the case of Lavesh (supra) and Pradeep
Sharma (supra) is concerned, reconciliation of Justiciability and
Justifiability is to be reached. Close scrutiny of judgment of
Apex Court in the case of Lavesh (supra) nowhere bars
maintainability of an application under Section 438 of Cr.P.C. if
a person is absconding. In fact it takes care of Justifiability (or
merit of the case) of any application under Section 438 of
Cr.P.C. as per factors provided in Section 438 of Cr.P.C. itself.
For ready reference Section 438 of Cr.P.C. is reproduced as
under:
“438. Direction for grant of bail to person
apprehending arrest.
(1) Where any person has reason to believe
that he may be arrested on accusation of having
18 M.Cr.C.No.5621/2020
committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a
direction under this section that in the event of
such arrest he shall be released on bail; and that
Court may, after taking into consideration, interalia,
the following factors, namely—
i- the nature and gravity of the accusation;
ii- the antecedents of the applicant including
the fact as to whether he has previously
undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
iii- the possibility of the applicant to flee from
justice; and.
iv- where the accusation has been made with
the object of injuring or humiliating the applicant
by having him so arrested,either reject the
application forthwith or issue an interim order
for the grant of anticipatory bail;
Provided that, where the High Court or, as
the case may be, the Court of Session, has not
passed any interim order under this Sub-Section
or has rejected the application for grant of
anticipatory bail, it shall be open to an officer incharge
of a police station to arrest, without
warrant the applicant on the basis of the
accusation apprehended in such application.
(1A) Where the Court grants an interim order
under Sub-Section (1), it shall forthwith cause a
notice being not less than seven days notice,
together with a copy of such order to be served
on the Public Prosecutor and the Superintendent
of Police, with a view to give the Public
19 M.Cr.C.No.5621/2020
Prosecutor a reasonable opportunity of being
heard when the application shall be finally heard
by the Court,
(1B) The presence of the applicant seeking
anticipatory bail shall be obligatory at the time of
final hearing of the application and passing of
final order by the Court, if on an application
made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest
of justice.
(2) When the High Court or the Court of Session
makes a direction under subsection (1), it may
include such conditions in such directions in the
light of the facts of the particular case, as it may
thinks fit, including—
(i) a condition that the person shall make
himself available for interrogation by a police
officer as and when required;
(ii) a condition that the person shall not,
directly or indirectly, make any inducement,
threat or promise to any person acquainted with
the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police
officer;
(iii) a condition that the person shall not leave
India without the previous permission of the
Court;
(iv) such other condition as may be imposed
under Sub-Section (3) of section 437, as if the
bail were granted under that section.
(3) If such person is thereafter arrested
without warrant by an officer in charge of a
20 M.Cr.C.No.5621/2020
police station on such accusation, and is
prepared either at the time of arrest or at any
time while in the custody of such officer to give
bail, he shall be released on bail, and if a
Magistrate taking cognizance of such offence
decides that a warrant should issue in the first
instance against that person, he shall issue a
bailable warrant in conformity with the direction
of the Court under Sub-Section (1).
(4) Nothing in this section shall apply to any
case involving the arrest of any person on
accusation of having committed an offence under
sub-section (3) of Section 376 or section 376AB
or section 376DAor section 376DBof the Indian
Penal Code.”
27. In addition to above referred provision, relevant para of
judgment passed in Lavesh (supra) is reproduced for ready
reference:
“From these materials and information, it is clear
that the present appellant was not available for
interrogation and investigation and declared as
“absconder”. 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 82of the
Code is not entitled the relief of anticipatory
bail.”
21 M.Cr.C.No.5621/2020
28. The word 'Entitled' used in the above referred para of Lavesh
(supra) itself suggests that it talks mainly about entitlement on
merits and not about maintainability. Perusal of Section 438 of
Cr.P.C. makes it very clear that four factors as enumerated into
Section 438(1) of Cr.P.C. contemplates four different
exigencies in which factor (iii) refers the “possibility of the
applicant to flee from justice” and consequence to this factor is
'Abconsion of person' or 'his Concealment' from Investigating
Agency.
29. In other words if chance of fleeing from justice exists then
application under Section 438 of Cr.P.C. can be rejected and
when a person is declared as proclaimed offender as per Section
82 of Cr.P.C. it means that factor (iii) of Section 438 (1) of
Cr.P.C. manifested in reality or in other words possibility of
applicant to flee from justice converted into reality. To put it
differently, Section 82 of Cr.P.C. is manifestation of
“Apprehension” as contained in Section 438 (1) factor (iii) of
Cr.P.C. The judgments pronounced by the Apex Court in the
case of Lavesh and Pradeep Sharma (supra) nowhere bar the
maintainability of the application under Section 438 of Cr.P.C.
in wake of person being declared as absconder under Sections
82 and 83 of Cr.P.C. and understandably so because this would
not have been in consonance with letter and spirit of
Constitution Bench judgment of Apex Court pronounced in the
22 M.Cr.C.No.5621/2020
case of Gurbaksh Singh Sibbia etc. (supra) and Sushila
Aggarwal and others (supra) as well as two Judge Bench of
Apex Court in the case of Bharat Chaudhary and another
(supra) as well as Ravindra Saxena (supra) because these
judgments categorically held that anticipatory bail is
maintainable even after filing of charge-sheet and till the person
is not arrested.
30. Full Bench decision of this Court in the case of Jabalpur Bus
Operators Association Vs. State of Madhya Pradesh and
others, 2003 (1) MPLJ 513 has dealt with law of precedent
and rule of stare decisis. One can suitably take guidance from
the said Full Court decision of this Court which is based upon
several judgments rendered by the Apex Court from time to time
in this regard. This Court can profitably rely upon the ratio of
the said judgment as delineated in penultimate para.
31- Therefore, Apex Court in the case of Lavesh and Pradeep
Sharma (supra) impliedly referred the factor (iii) of Section
438 (1) of Cr.P.C. and its different fallouts because according to
Apex Court, a person who is proclaimed offender under
Sections 82 and 83 of Cr.P.C. loses the sheen on merits to seek
anticipatory bail. His application deserves dismissal on merits if
he is declared as absconder under Section 82 of Cr.P.C. but
application is certainly maintainable. Even otherwise, because
the proceedings under Sections 82 and 83 of Cr.P.C. are
23 M.Cr.C.No.5621/2020
transient/interim/provisional in nature and subject to
proceedings under Section 84 (at the instance of any person
other then proclaimed offender having interest in the attach
property), Section 85 (at the instance of proclaimed offender
himself) and Section 86 [Appeal against the order (under
Section 85 rejecting application for restoration of attach
property]. Even Section 84 (4) of Cr.P.C. gives power to the
objector to institute a suit to establish the right which he claims
in respect of property in dispute. Therefore, all these provisions
render the proceedings under Section 82/83 of Cr.P.C. transient
or intermediary and on the basis of transient provision, valuable
right of personal liberty of an individual at least to seek
anticipatory bail cannot be curtailed. Therefore, on this count
also, application under Section 438 of Cr.P.C. is maintainable
even if a person has been declared as proclaimed offender in
terms of Section 82 of Cr.P.C.
32. Therefore, submission of learned counsel for the complainant
lacks merits so far as maintainability of application under
Section 438 of Cr.P.C. qua Section 82 of Cr.P.C. is concerned.
Even otherwise in the present case, proceedings under Section
82 of Cr.P.C. are not given effect to yet (as per case-diary) and
only cash award of Rs.5,000/- by Superintendent of Police has
been declared. Said factor can certainly be an important
consideration while deciding anticipatory bail application but
24 M.Cr.C.No.5621/2020
not having overriding effect to create a bar for filing
anticipatory bail application.
33. Therefore, in the considered opinion of this Court, even if the
police authority has declared award or prepared Farari
Panchnama even then anticipatory bail application is
maintainable, however, it is to be seen on merits that whether
that application deserves to be considered and allowed as per
the factors enumerated in Section 438 of Cr.P.C. itself and if any
of those factors are not satisfied then the Court certainly has
discretion to reject it. The said discretion has been given by
Constitutional Bench decision of Hon'ble Apex Court in the
case of Gurbaksh Singh Sibbia etc. (supra).
34. So far as present set of facts are concerned from the case diary
and submissions, it appears that on false promise of marriage,
initially physical intimacy developed and later on both entered
into wedlock but it is grievance of prosecutrix that he is already
a married person. Certain bank transactions have already been
referred and documented which indicate that they were in
proximity. As submitted, both the parties earlier tried to settle
the matter by filing petition under Section 482 of Cr.P.C.
bearing No.930/2020. Therefore, both matured individuals
waited the consequences of their decisions and both lived some
days together comfortably. Cumulatively, it appears that the
principle enumerated by the Apex Court in the matter of
Pramod Suryabhan Pawar (supra) and Dr. Dhruvaram
Murlidhar Sonar (supra) as well as facts and circumstances of
the case, applicant deserves consideration for anticipatory bail.
Even otherwise the police nowhere referred criminal
antecedents of the applicant and his presence can be ensured by
marking his attendance before the Investigating Officer for
investigation purpose.
35. Consensual proximity of Body and Soul cannot be used as a
weapon to wreak vengeance at a later point of time when Body
and Soul drift apart.
36. Considering the submissions of learned counsel for the
applicant as well as fact situation of the case, without expressing
any opinion on the merits of the case, I intend to allow this bail
application. It is directed that applicant shall be released on
bail in case of his arrest on his furnishing personal bond in the
sum of Rs.1,00,000/- (Rs. One Lac Only) to the satisfaction of
Arresting Authority/Investigating Officer and he shall
download the Arogya Setu App. Bail bond shall be furnished
within one and half month as and when situation moves out of
Lock-down.
This order will remain operative subject to compliance of
the following conditions by the applicant:-
1. The applicant will comply with all the terms and
conditions of the bond executed by him;
2. The applicant will cooperate in the investigation/trial, as the
case may be;
3. The applicant will not indulge himself in extending
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him/her from disclosing such
facts to the Court or to the Police Officer, as the case may be.
4. The applicant will not commit an offence similar to the
offence of which he is accused;
5. The applicant will not seek unnecessary adjournments
during the trial; and
6. The applicant will not leave India without previous
permission of the trial Court/Investigating Officer, as the case
may be.
7. Applicant would not be source of harassment and
embarrassment to the prosecutrix or her family members
and would not move in her vicinity in any manner.
37. Before parting, the assistance provided by Shri V.K. Saxena,
Senior Advocate, ably assisted by Shri Rajesh Kumar Shukla,
Shri Atul Gupta and Shri S.K. Shrivastava as well as Shri V.D.
Sharma Advocate as Amicus Curiae deserves appreciation and
acknowledgment.
A copy (E-copy) of this order be sent to the trial Court
concerned for compliance.
Certified copy/E-copy as per rules.
(Anand Pathak)
Anil* Judge
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