Supreme Court: Whether the court may grant Anticipatory Bail Where Proclamation Is Issued in a Mechanical or Casual Manner?

When the liberty of the appellant is pitted against, this Court will have to see the circumstances of the case, nature of the offence and the background based on which such a proclamation was issued. Suffice it is to state that it is a fit case for grant of anticipatory bail, on the condition that the appellant shall cooperate with the further investigation. However, liberty is also given to the respondents to seek cancellation of bail that has been granted, in the event of a violation of the conditions which are to be imposed by the Trial Court or if there are any perceived threats against the witnesses. {Para 9}

 In the Supreme Court of India

(Before M.M. Sundresh and Aravind Kumar, JJ.)

Asha Dubey Vs State of Madhya Pradesh 

Criminal Appeal No. 4564 of 2024 (@ SLP(Crl.) No. 13123/2024

Decided on November 12, 2024

Citation: 2024 SCC OnLine SC 5633.

Print Page

Supreme Court: The right of anticipatory bail is not a part of Article 21 of the Constitution of India

 Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "...except according to a procedure prescribed by law". In State of M.P. v. Ram Kishna Balothia [State of M.P. v. Ram Kishna Balothia,   MANU/SC/0239/1995 : 1995:INSC:99 : (1995) 3 SCC 221: 1995 SCC (Cri) 439], the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) {Para 71}

7. ... We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Code of Criminal Procedure of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

Print Page

Supreme Court: Anticipatory bail should be granted to absconding accused in exceptional cases

 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. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

Print Page

Supreme Court: Anticipatory bail should be granted in exceptional circumstances

 It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail Under Section 438, Code of Criminal Procedure is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J. Mannan and Anr.4). {Para 9}

10. 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 hindrance to the normal flow of investigation method when called upon to exercise the power Under Section 438, Code of Criminal Procedure, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. 

25. We have already held that the power to grant anticipatory bail is an extraordinary power. 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. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

Print Page

Supreme Court: Anticipatory bail should not be granted as a matter of routine particularly in serious economic offences

 In view of the above settled legal position, it is no more res integra that economic offences constitute a class apart, as they have deep rooted conspiracies involving huge loss of public funds, and therefore such offences need to be viewed seriously. They are considered as grave and serious offences affecting the economy of the country as a whole and thereby posing serious threats to the financial health of the country. The law aids only the abiding and certainly not its resistant's. When after the investigation, a chargesheet is submitted in the court, or in a complaint case, summons or warrant is issued to the Accused, he is bound to submit himself to the authority of law. If he is creating hindrances in the execution of warrants or is concealing himself and does not submit to the authority of law, he must not be granted the privilege of anticipatory bail, particularly when the Court taking cognizance has found him prima facie involved in serious economic offences or heinous offences. In such cases when the court has reason to believe that the person against whom the warrant has been issued has absconded or is concealing himself so that warrant could not be executed, the concerned court would be perfectly justified in initiating the proclamation proceedings against him Under Section 82 Code of Criminal Procedure The High Courts should also consider the factum of issuance of non-bailable warrants and initiation of proclamation proceedings seriously and not casually, while considering the anticipatory bail application of such Accused.

{Para 23}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

Print Page

Supreme Court: Under which circumstances the court should issue non bailable warrant instead of summons for securing presence of accused?

 Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

• it is reasonable to believe that the person will not voluntarily appear in court; or

• the police authorities are unable to find the person to serve him with a summon; or

• it is considered that the person could harm someone if not placed into custody immediately. {Para 52}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Print Page

Supreme Court: Filing Of Anticipatory Bail Application Through Advocate Can't Be Considered As Appearance Of Absconding Accused

Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel and Ors. v. State of Gujarat   MANU/GJ/0220/2004, the High Court of Gujarat observed thus:

9. Filing of an Anticipatory Bail Application by the Petitioners-Accused through their advocate cannot be said to be an appearance of the Petitioners-Accused in a competent Court, so far as proceeding initiated Under Section 82/83 of the Code is concerned; otherwise each absconding Accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding Under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely. {Para 19}

(underline supplied)

20. We are in full agreement with the view taken by the Gujarat High Court 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, as mentioned above are instituted. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1552 of 2024.

Decided On: 14.03.2024

Srikant Upadhyay and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: C.T. Ravikumar, J.

Citation:  MANU/SC/0198/2024.

Print Page

Supreme Court: No Anticipatory Bail To Accused Against Whom Non-Bailable Warrant & Proclamation Under Section 82 CrPC Are Pending.

We have already held that the power to grant anticipatory bail is an extraordinary power. 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. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant. {Para 24}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1552 of 2024 

Decided On: 14.03.2024

Srikant Upadhyay and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0198/2024.

Print Page

Should the investigating officer make the application on affidavit to court to issue a proclamation order against the accused?

  As far as the legal position is concerned, if

the accused evades the arrest during the

investigation, no doubt the Investigating Officer

has power to arrest the accused without warrant,

if the offence is cognizable one, but for issuance

of proceeding under Section 82 Cr.P.C., the

investigating officer has to seek help of the

Court and only under the orders of the Court,

proclamation under Section 482 Cr.P.C. can be

issued.

Section 82(1) Cr.P.C. runs as under:-

"82(1). Proclamation for person absconding--If any

Court has reason to believe (whether after taking

evidence or not) that any person against whom a

warrant has been issued by it has absconded or is

concealing himself so that such warrant cannot be

executed, such Court may publish a written

proclamation requiring him to appear at a specified

place and at a specified time not less than thirty

days from the date of publishing such

proclamation."

10. Section 82(1) Cr.P.C. clearly shows that

before issuance of proclamation under Section 82

Cr.P.C. issuance of NBW is necessary because

Section 82 Cr.P.C. itself says that "if the Court

has reason to believe that any person against

whom a warrant has been issued by it has

absconded or is concealing himself", hence the

issuance of NBW before proclamation under

Section 82 Cr.P.C is necessary. In the present

matter, the investigation is going on, wherein a

person died by consuming toxic liquor and the

petitioner is wanted for the investigation. But it

is also important that Magistrate should not pass

such order in a routine manner, on the simple

application of the Investigating Officer. The

application should be supported by an affidavit

of the Investigating Officer stating the reasons

why NBW and proclamation under Section 82

Cr.P.C. is required, as the issue relates to the

personal liberty of a person guaranteed under

Article 21 of the Constitution of India.

ALLAHABAD HIGH COURT

Case :- U/S 482/378/407 No. - 2261 of 2021

Kunwar Mahendra Pratap Singh @ Chandan Singh Vs State Of U.P. & Ors.

Coram: Hon'ble Mrs. Saroj Yadav,J.

Dated: 18.8.2021

Print Page

Whether court can declare an accused prosecuted for an offence U/S 406, 420 IPC as Proclaimed Offender U/S 82(4) CrPC?

 At the outset, it is essential to observe that as regards the prayer made by the petitioner seeking quashing of the proceedings initiated vide order dated 03.03.2021, under Section 82 of the Cr.PC, 1973 in as much as the FIR in the instant case is registered under Sections 406/420/120B of the Indian Penal Code, 1860, the said provisions of law sought to be invoked by the Investigating Agency do not fall within the ambit of Section 82(4) of the Cr.PC, 1973 and thus the applicant cannot be declared a Proclaimed Offender thereunder in view of the verdict of this Court in in Manoj Tandon Vs. State in Crl.M.C.1961/2020, dated 25.11.2020 whereby there is a reference made to the verdict of this Court in Sanjay Bhandari vs. State in Crl.Rev.Pet.No.223/2018, a verdict dated 31.07.2018, the verdict of the Hon’ble High Court of Rajasthan in Rishabh Sethi vs. State of Rajasthan and Ors. in Petition No.5767/2017.

{Para 2}

3. In view thereof, the order dated 03.03.2021 of the learned trial Court directing the issuance of process under Section 82 of the Cr.PC, 1973 against the petitioner in FIR No.147/2020, PS EOW, under Sections 406/420/120B of the Indian Penal Code, 1860 is quashed.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Crl.M.C.No.863/2021

Date of decision : 26.03.2021

ARUN KUMAR PARIHAR Vs STATE (GOVT NCTD) 

CORAM:

HON'BLE MS. JUSTICE ANU MALHOTRA

Print Page

Whether police can declare accused absconding if his anticipatory bail application is pending before court?

Respective counsel submit that during the pendency of their
applications seeking pre-arrest bail, investigating agency has issued
proclamation against them under section 82 of the Code of Criminal
Procedure, 1973. In fact, when the applications under section 438 of the Code
of Criminal Procedure, 1973 are pending before any court of Law, it cannot
be said that the accused are absconding. It only means that the accused are
evading arrest to take their applications under section 438 of the Code of
Criminal Procedure, 1973 to its logical end. In view of this, proclamation

issued against present applicants shall not be acted upon during the pendency
of the hearing of these applications.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO. 1880 OF 2016
Nitin Chandrrkant Kadam 
V/s.
The State of Maharashtra 

CORAM : SMT. SADHANA S. JADHAV, J.
DATED : 30th NOVEMBER, 2016.

Print Page

When court can issue order of attachment of property of absconding person along with proclamation U/S 82 of crpc?

 Moreover, in order to issue an order of attachment of property of a person absconding under Section 83 of the Cr.P.C., the Court issuing a proclamation under Section 82 of the Cr.P.C., may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both belonging to the proclaimed person, provided that the Court is satisfied that the person in relation to whom the proclamation is to be issued; (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court. Only on satisfaction of such condition, the Court may order the attachment simultaneously with the issue of the proclamation.

Equivalent Citation: 2016CriLJ1231

IN THE HIGH COURT OF ORISSA

CRLMC No. 4819 of 2015

Decided On: 03.12.2015

 Antaryami Barik and Ors.
Vs.
 State of Orissa

Hon'ble Judges/Coram:S.K. Mishra, J.

Citation;2016 CRLJ1231

Print Page