S.82 CrPC Does Not Impose Any Restrictions On Filing Of Anticipatory Bail By Proclaimed Offenders: Punjab & Haryana High Court
If the offence committed is punishable with less than seven years, is a bailable, non-heinous offence and the accused who is a first-time offender, has established a fair ground for not being present in court, to the court's satisfaction, then just the fact that accused has been a proclaimed offender will not bar him/her from availing the benefit of Anticipatory Bail under S. 438 of...
If the offence committed is punishable with less than seven years, is a bailable, non-heinous offence and the accused who is a first-time offender, has established a fair ground for not being present in court, to the court's satisfaction, then just the fact that accused has been a proclaimed offender will not bar him/her from availing the benefit of Anticipatory Bail under S. 438 of CrPC, the Punjab and Haryana High Court has held.
The observation was made by Justice Anoop Chitkara in a case where the accused woman was charged with Sections 297 (Trespassing on burial places), 337 (Causing hurt by act endangering life or personal safety of others) and 338 (Causing grievous hurt by act endangering life or personal safety of others) of the Indian Penal Code.
The petitioner-accused was declared as a proclaimed offender for missing Court hearings on several occasions.
The Bench noted noting that she was a first-time offender and all the offences were bailable. It stated,
"S.82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders."
And thus, citing that legislature makes special provisions for women and that sending a woman to custody before according her with the opportunity of bail would not put the judiciary in higher esteem.
An FIR was registered against the accused woman under S.279, S.337 and S.338 of IPC and she had missed several hearings in court. Regarding missing the first hearing, she stated that there was a miscommunication between her and her counsel and when she realized she had to appear in Court, it was impossible to come because she was not in the city.
The second hearing was missed because neither the petitioner nor her surety were aware of the Non-bailable warrant against her. On the third occasion, the petitioner still did not have any idea about the Non-bailable warrant against her and on several dates due to the non-functioning of courts because of the covid 19 pandemic, her appearance would have been impossible.
And on the last count cited, the petitioner was not only unaware of the non-bailable warrant against her but she was also down with a fever.
The petitioner further argued that she only realized that she had missed all the above hearings when she enquired about her case in September 2021 and thus, the current petition was filed by the petitioner to seek anticipatory bail.
Findings
The High court looked at several case laws, including the landmark judgment of Lavesh v. State (NCT of Delhi), where the apex court had held that "normally" in case of an absconding accused who has been declared a proclaimed offender, the question of granting anticipatory bail does not arise and the judgment in the state of Madhya Pradesh v. Pradeep Sharma, which reiterated the stance of Supreme Court that "if anyone is declared as an absconder/proclaimed offender in terms of S.82 of the Code, he is not entitled to the relief of anticipatory bail".
The High Court then noted that both these cases involved heinous offences, the conduct of the persons accused was deplorable, and that the case at hand did not follow the aspect "normally" as laid down in Lavesh v. State (NCT of Delhi), the offences the accused was charged with were punishable with less than seven years of imprisonment, were bailable offences and the accused had given reasonable rationale about her missing court hearings.
Further referring to the Supreme Court's judgment in Arnesh Kumar v. the State of Bihar, where the apex court had directed all state governments to instruct their police officers to not automatically arrest an accused where offence punishable was less than years, the High Court averred that the petitioner made a clear case for anticipatory bail.
Thus, taking a balanced approach and to speed the process of law, noting that denying bail to the accused would not "overhaul the system", the High Court granted bail to the accused, subject to her furnishing a personal bond of INR 10000 and one surety for INR 250000 to the satisfaction of the concerned investigator or subject to her furnishing a personal bond of INR 10000 and handing over a fixed deposit of INR 10000 made in favour of Chief Judicial Magistrate.
"The facts and circumstances are not normal.Thus, the circumstances cannot be termed as normal for the accused, and she makes out a special case for bail," the Judge remarked.
The petitioner was also given the liberty to apply for substitution of fixed deposit with surety bonds and vice-versa.
The petition was allowed and pending applications stood disposed of.
Case title: Mamta Giri v. State of UT Chandigarh
Citation: 2022 LiveLaw (PH) 16
Coram: Hon'ble Mr. Justice Anoop Chitkara
Counsel for Appellants: Mr. Sohrab Dhanda
Counsel for Respondents: Mr. Akashdeep Singh, Additional PP for UT Chandigarh
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