Anticipatory Bail Plea Maintainable If Proclamation U/S 82 & 83 CrPC Is Issued Against Accused After Filing Of Plea: Allahabad HC

The Allahabad High Court has observed that the initiation of the process of proclamation or attachment proceedings under sec. 82 or 83 of Cr.PC after the filing of an anticipatory bail plea by an accused does not bar the consideration of such a bail application.

With this, the Bench of Justice Rajesh Singh Chauhan granted anticipatory bail to one Manish Yadav, who is an Army personnel serving in the Indian Army and has been booked in a rape case.

Essentially, the bail applicant had filed an anticipatory bail application before the court below in April 2022 and the same was rejected on April 30, 2022. Thereafter, the proclamation u/s 82 Cr.P.C. was issued by the court below on May 9, 2022, i.e., after the rejection of his anticipatory bail plea.

Now, when he moved to the High Court seeking pre-arrest bail, the question before the Court was - whether he was entitled to anticipatory bail even when the Apex Court has held in several cases that a person against whom a proclamation has been issued u/s 82/83 Cr.P.C. would not be entitled to the benefit of anticipatory bail.

Section 82 contemplates the procedure for issuing a proclamation against a person absconding. Section 83 talks about the attachment of property of a person absconding.

Court's observations 

At the outset, the Court referred to landmark rulings of the Supreme Court laying down the law that if an accused person is declared as an absconder by the competent court, he would not be entitled to get anticipatory bail.

However, the Court noted that in the instant case, when the applicant had filed the anticipatory bail application before the court below, there was no proclamation u/s 82 Cr.P.C.

Noting that such proclamation had been issued after the rejection of anticipatory bail application of the present applicant by the court below, the Court observed that the bar to entertain anticipatory bail application after issuance of proclamation u/s 82 Cr.P.C. would not be attracted in the present case.

The Court also noted that the proclamation order of the Court does not disclose that the investigating officer had filed an affidavit before the court concerned to convince that all prior steps which are required under the law were taken; as to whether the summons, bailable warrant and non-bailable warrant have been served upon the applicant or not; as to whether before issuing the non-bailable warrant against the present applicant the learned court below has convinced itself about the service of the summons and bailable warrants.

"In the present case when the applicant filed his anticipatory bail application, he was not a proclaimed offender. His right to file such application before this court was consequential as he could have approached the High Court u/s 438 Cr.P.C. after the rejection of his application by the sessions court which was also filed u/s 438 Cr.P.C. Therefore, when the present applicant filed his application u/s 438 Cr.P.C. he was not a proclaimed offender so the bar imposed by the Apex Court entertaining anticipatory bail of the proclaimed offender would not attract in the present case." the Court observed as it ALLOWED his anticipatory bail plea. 

The Court also took into account the fact that the informant/complainant had not leveled any allegation against the present applicant in the F.I.R and that he was not even named in the F.I.R.

Case title - Manish Yadav v. State of U.P [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 Cr.P.C. No. - 4645 of 2022]

Case Citation: 2022 LiveLaw (AB) 325

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