Saturday 9 April 2022

Whether Absconder/ Proclaimed Offender are Entitled To get Anticipatory Bail?

 In this regard it is relevant to rely upon the judgment passed by

Supreme Court in Prem Shankar Prasad vs. State of Bihar and another, AIR 2021 SC 5125 where in similar facts since proceedings under Sections 82 and 83 Cr.P.C. were initiated, the Supreme Court has relied on the judgment passed in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171 and reiterated that if anyone has been declared as absconder/ proclaimed offender under Section 82 Cr.P.C., he is not entitled for relief of anticipatory bail. The relevant paragraphs of the judgement in Prem Shankar Prasad (supra) are reproduced as under:

“7.2. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that Respondent No. 2-Accused is absconding and even the proceedings Under Sections 82-83 of Code of Criminal Procedure have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to Respondent No. 2-Accused by observing that the nature of accusation is arising out of a business transaction. The specific 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 ignored the factum of initiation of proceedings Under Sections 82-83 of Code of Criminal Procedure by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.

12. In view of above discussion the applicant is not entitled for

anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also issued under Section 83 Cr.P.C. and, therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for anticipatory bail.

ALLAHBAD HIGH COURT

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438

CR.P.C. No. - 20357 of 2021

Applicant :- Yogendra Kumar Mishra

Opposite Party :- State of U.P. and Another

Delivered on 06.04.2022

Bench: Hon'ble Saurabh Shyam Shamshery,J.

1. Applicant-Yogendra Kumar Mishra has approached this Court by way

of filing this Criminal Misc. Anticipatory Bail Application under Section

438 Cr.P.C. after rejection of his anticipatory bail application vide order

dated 30.11.2021 passed by Additional District and Additional District and

Sessions Judge/Special Judge (POCSO Act), Allahabad, seeking

Anticipatory Bail in Case Crime No. 324 of 2021, under Sections 376, 506,

328 IPC, 3/4 POCSO Act and 67 I.T. Act, Police Station Kotwali, District

Prayagraj.

2. Sri Anil Tiwari, learned Senior Advocate has vehemently argued that

it is a fit case for anticipatory bail. Undisputedly the applicant is a married

person having a wife and son whereas Opposite Party No. 2 (Informant)

alongwith her daughter (a minor girl and victim) are living separately from

her husband. The Informant is a Teacher in a School where applicant is

working as Class-IV employee in same school. It is admitted case that

applicant has consensual relationship with Informant and Informant and her

daughter are staying with him. There are cordial relationship with the son of

applicant with the daughter of First Informant as brother and sister. In

support of this submission learned Senior Advocate has relied on the

photographs and whatsapp chat history which are part of record. Learned

Senior Advocate also submits that their relations were very cordial and he

has purchased a land in his name as well as in the name of Opposite Party

No. 2 and an agreement to sell is also on record. The relationship become

strained when First Informant, though not legally divorced, insisted

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applicant to get merry which was not possible for applicant because he is a

married person. In these circumstances, applicant withdrew the money

deposited towards agreement to sell. All these circumstances made the First

Informant annoyed and, therefore, a false FIR was lodged wherein false

allegation of rape against applicant, not only with First Informant but with

her minor daughter, was levelled. All the alleged incidents mentioned in FIR

are very old. So far the allegation of rape with minor daughter is concerned,

it is the case of First Informant that applicant himself communicated to her

about the incident, therefore, considering that it is absolutely improbable, a

case of anticipatory bail is made out. Learned Senior Advocate has also

fairly submits that after the Trial Court rejected applicant’s anticipatory bail,

not only non-bailable warrant was issued against applicant but proceedings

were also initiated under Sections 82 and 83 Cr.P.C.

3. Sri Munne Lal, learned A.G.A. appearing for State and Sri Subhash

Chandra Tiwari, Advocate appearing for Opposite Party No. 2, have

vehemently opposed the aforesaid submissions. They submitted that First

Informant as well as her minor daughter have made a categorical statement

against applicant in their statements recorded under Section 164 Cr.P.C. that

they were raped on multiple times taking benefit of their separation and trust

imposed by First Informant and her daughter with applicant. They also

submitted that applicant is not cooperating with investigation process,

therefore, not only non bailable warrant was issued but now proceedings

under Sections 82 and 83 Cr.P.C. have also been initiated against applicant,

therefore, no case for anticipatory bail is made out.

4. I have heard learned counsel for rival parties and perused the material

available on record.

5. Few factors and parameters, which this Court has to consider for

exercising discretion for grant or refusal of anticipatory bail are nature and

gravity of accusation, exact role of the accused, his or her antecedents,

possibility of the accused to flee from justice, likelihood to repeat similar or

other offence. Whether accusation are made only with the object of injury

and causing humiliation to the accused or case is of large magnitude with

possible effect on a large number of people. Greater care and caution is

required while considering cases under Section 34 and 149 IPC. Further

consideration of threat to complainant and witnesses and tempering of

evidences are other relevant factors.

6. While considering anticipatory bail application this Court has to

struck balance between two factors namely, no prejudice should be caused to

the fair and free investigation and accused should not be subjected to

harassment, humiliation and unjustified detention. This Court is justified to

impose conditions spelt out in Section 437 Cr.P.C. and also other restrictive

conditions if deem necessary in the facts and circumstances of a particular

case including limit of the anticipatory bail but not in routine manner. An

Anticipatory Bail Application has to be based on concrete facts (and not

vague or general allegations) relatable to offence and why the applicant

reasonably apprehends his or her arrest, as well as his version of the facts.

7. Before considering the case of applicant on merit with regard to

prayer for anticipatory bail, I have to consider that since there are

proceedings initiated against applicant under Sections 82 and 83 Cr.P.C.,

whether in the facts and circumstances of present case, the applicant is

entitled for anticipatory bail or not.

8. In this regard it is relevant to rely upon the judgment passed by

Supreme Court in Prem Shankar Prasad vs. State of Bihar and another, AIR

2021 SC 5125 where in similar facts since proceedings under Sections 82

and 83 Cr.P.C. were initiated, the Supreme Court has relied on the judgment

passed in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171

and reiterated that if anyone has been declared as absconder/ proclaimed

offender under Section 82 Cr.P.C., he is not entitled for relief of anticipatory

bail. The relevant paragraphs of the judgement in Prem Shankar Prasad

(supra) are reproduced as under:

“7.2. Despite the above observations on merits and despite the fact

that it was brought to the notice of the High Court that Respondent

No. 2-Accused is absconding and even the proceedings Under

Sections 82-83 of Code of Criminal Procedure have been initiated as

far as back on 10.01.2019, the High Court has just ignored the

aforesaid relevant aspects and has granted anticipatory bail to

Respondent No. 2-Accused by observing that the nature of accusation

4

is arising out of a business transaction. The specific 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 ignored the factum of initiation of proceedings

Under Sections 82-83 of Code of Criminal Procedure by simply

observing that "be that as it may". The aforesaid relevant aspect on

grant of anticipatory bail ought not to have been ignored by the High

Court and ought to have been considered by the High Court very

seriously and not casually.

7.3. In the case of State of Madhya Pradesh v. Pradeep Sharma

(Supra), it is observed and held by this Court that if anyone is

declared as an absconder/proclaimed offender in terms of Section 82

of Code of Criminal Procedure, he is not entitled to relief of

anticipatory bail. In paragraph 14 to 16, it is observed and held as

under:

14. In order to answer the above question, it is desirable to refer

to Section 438 of the Code which reads 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

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, inter alia, 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:

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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 in charge of a police station to arrest,

without warrant the applicant on the basis of the

accusation apprehended in such application.

The above provision makes it clear that 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.

15. In Adri Dharan Das v. State of W.B. (2005) 4 SCC 303

this Court considered the scope of Section 438 of the Code as

under: (SCC pp. 311-12, para 16)

16. Section 438 is a procedural provision which is

concerned with the personal liberty 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 offence in respect of which he

seeks bail. The applicant must show that he has 'reason to

believe' that he may be arrested in a non-bailable offence.

Use of the expression 'reason to believe' shows that the

belief that the applicant may be arrested must be founded

on reasonable grounds. Mere 'fear' is not 'belief' for

which reason it is not enough for the applicant to show

that he has some sort of vague apprehension that

someone is going to make an accusation against him in

pursuance of which he may be arrested. Grounds on

which the belief of the applicant is based that he may be

arrested in non-bailable offence must be capable of being

examined. If an application is made to the High Court or

the Court of Session, it is for the court concerned to

decide whether a case has been made out for granting of

the relief sought. The provisions 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 believe that he may be arrested. A belief can be

said to be founded on reasonable grounds only if there is

something tangible to go by on the basis of which it can

be said that the applicant's apprehension that he may be

arrested is genuine. Normally a direction should not issue

to the effect that the applicant shall be released on bail

'whenever arrested for whichever offence whatsoever'.

Such 'blanket order' should not be passed as 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

unlikely. On the facts of the case, considered in the

background of the legal position set out above, this does

not prima facie appear to be a case where any order in

terms of Section 438 of the Code can be passed.

16. Recently, in Lavesh v. State (NCT of Delhi) (2012) 8

SCC 730, this Court (of which both of us were parties)

considered the scope of granting relief Under Section 438 vis-avis

a person who was declared as an absconder or proclaimed

offender in terms of Section 82 of the Code. In para 12, this

Court held as under: (SCC p. 733)

12. From these materials and information, it 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 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.

It is clear from the above decision that if anyone is declared

as an absconder/proclaimed offender in terms of Section 82 of

the Code, he is not entitled to the relief of anticipatory bail.

Thus the High court has committed an error in granting anticipatory

bail to Respondent No. 2-Accused ignoring the proceedings Under

Section 82-83 of Code of Criminal Procedure.”

(emphasis supplied)


9. In the present case, Trial Court vide order dated 10.01.2022 has noted

that despite proclamation for applicant being absconder issued under Section

82 Cr.P.C. and in this regard publication was also made in newspaper, the

applicant remained absconding, therefore, by the said order Trial Court

issued order for attachment of property, movable or immovable or both,

belongs to proclaimed person, i.e., applicant, under the provisions of Section

83 Cr.P.C. Therefore, the facts and circumstances of present case squarely

covers by the judgment passed by Supreme Court in Prem Shankar Prasad

(supra).

10. At this stage, this Court also deals with the rival submissions made by

parties on merit.

11. On the basis of record available it appears that applicant first inspired

confidence of victims and when they imposed complete trust on him, not

only applicant violated the trust of First Informant but her minor daughter

also. The averments made in the statements recorded under Section 164

Cr.P.C. also depict that applicant not only raped the First Informant but also

raped her minor daughter. There are allegation that applicant has certain

unsolicited video clips also and he has put threat to viral it and blackmailed

the victim and her mother.

12. In view of above discussion the applicant is not entitled for

anticipatory bail on the ground that applicant was not only declared

proclaimed offender under Section 82 Cr.P.C. but proclamation of

attachment of property was also issued under Section 83 Cr.P.C. and,

therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for

anticipatory bail. Even otherwise, on merit also, considering the specific

averments made under Section 164 Cr.P.C. by First Informant as well as her

minor daughter, there are very serious allegations against the applicant and,

therefore, no case for anticipatory bail is made out on merit also.

13. The application is accordingly rejected.

14. However, two weeks time is granted to applicant to surrender before

Trial Court and to move an application for bail. In case such an application

is filed by applicant, Trial Court is directed to decide the same expeditiously


considering the judgment passed by Supreme Court in Satender Kumar Antil

vs. Central Bureau of Investigation and another, (2021) 10 SCC 773.

Order Date :- 06.04.2022


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