No Bar On Entertaining Anticipatory Bail Plea If Proclamation U/S 82, 83 CrPC Is Issued During Pendency Of Plea: Allahabad High Court

The Allahabad High Court has observed that there is no bar on entertaining an anticipatory bail plea of an accused, if during the pendency of plea, any proclamation u/s 82 & 83 Cr.P.C. is issued.

The bench of Justice Suresh Kumar Gupta further observed that after the rejection of the anticipatory bail plea by the lower court, a person has a right to approach the High Court and if in the interregnum period, any proclamation u/s 82 & 83 Cr.P.C. is issued, then the same may be considered as a circumventive exercise being taken by the Investigating Officer.

The case in brief

The bench observed thus while dealing with the anticipatory bail application moved by one Siddharth Kappor seeking anticipatory bail in a case registered against him under sections- 306, 506 IPC.

At the outset, the Counsel for the accused submitted that a perusal of the FIR and statement, no offence U/s 306 IPC is made out against the applicant. It was further submitted that after the rejection of his pre-arrest bail plea on April 21, the investigating officer, who anyhow wanted to arrest the applicant, deliberately procured an order U/s 82 CrPC on April 29.

It was the case of the accused that the investigating officer did not obtain the order of N.B.W. and process U/s 82 CrPC prior to the filing of the anticipatory bail application before the court below rather, it was issued against him while the applicant was availing statutory remedy given by the appropriate court.

Court's observations

The Court noted that the applicant approached the High Court on May 5, 2022, and therefore, it was clear that the process U/s 82 CrPC was issued after the rejection of the anticipatory bail application by the sessions court concerned.

In light of the facts of the case, the Court further observed that no one can be restrained from taking legal recourse strictly in accordance with law and such legal right may not be prevented even if any process is adopted by any authority which is not permissible under the law.

"The law is trite on the point that if any person has filed any anticipatory bail application before the learned court below seeking anticipatory bail showing his reasonable apprehension of arrest in a case where the allegations of the prosecution prima facie do not corroborate with the material available on record and his anticipatory bail application is rejected, he has got a right to approach the High Court for such anticipatory bail and if in the interregnum period any proclamation u/s 82 & 83 Cr.P.C. is issued, it may be considered as a circumventive exercise being taken by the Investigating Officer."

Therefore, in this matter, the Court opined that there was no bar to interfering in the anticipatory bail application even after the issuance of process U/s 82 CrPC.

Consequently, considering the nature of the accusation as well as the fact that the applicant had no criminal antecedent and without expressing any opinion on the merits of the case, the Court observed that there was no instant instigation or abetment to commit suicide and, as such, the applicant was entitled to be released on anticipatory bail.

In view of the aforesaid terms, the application was allowed and disposed of. 

In related news, hinting that a proclaimed offender may also move an anticipatory bail plea, the Allahabad High Court recently observed that Section 438 of CrPC doesn't say that a proclaimed offender would be barred to file such a plea.

The bench of Justice Rajesh Singh Chauhan further observed that Section 82 CrPC (Proclamation for person absconding) neither creates any rider nor imposes any restrictions in filing anticipatory bail application by the proclaimed offender.

The same bench (Justice Rajesh Singh Chauhan) had recently observed that the initiation of the process of proclamation or attachment proceedings under Section 82 or 83 of CrPC after the filing of an anticipatory bail plea by an accused does not bar the consideration of such a bail application.

Case title - Siddharth Kappor v. State of U.P. and Another

Case Citation: 2022 LiveLaw (AB) 335

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