Section 438 CrPC Nowhere Indicates That A Proclaimed Offender Is Barred To File Anticipatory Bail Plea: Allahabad High Court

Hinting that a proclaimed offender may also move an anticipatory bail plea, the Allahabad High Court has 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.

In this regard, the Court also referred to the Apex Court's ruling in the case of Lavesh vs. State (NCT of Delhi) (2012) 8 SCC 730 to note that the Top Court had used the word 'Normally', meaning thereby, the High Court explained, "normally the anticipatory bail application of the proclaimed offender should not be entertained".

Here it may be noted by the readers that in the Lavesh case (supra), the Top Court had observed thus:

"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 is not entitled the relief of anticipatory bail."

It may be noted that the same bench (Justice Rajesh Singh Chauhan) had last week 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.

Read more about the case here: Anticipatory Bail Plea Maintainable If Proclamation U/S 82 & 83 CrPC Is Issued Against Accused After Filing Of Plea: Allahabad HC

The matter before the Court

Apprehending his arrest in a case under sections 323, 504, 506, 313, 376, 377 IPC, one Suresh Babu moved a 438 CrPC application seeking pre-arrest bail after his earlier plea was dismissed by the sessions court.

Allegations against the applicant are that on the pretext of the false promise of marriage, he exploited and established physical relations with the informant, and thereafter, he refused to marry her. 

Essentially, he had filed a pre-arrest bail plea before the Sessions Court on March 16, 2022, and the proclamation u/s 82 Cr.P.C. was issued on March 24, 2022 (during the pendency of bail plea), and the bail plea was rejected on April 5, 2022. 

While rejecting the anticipatory bail application, the sessions court had noted that the proclamation under section 82 Cr.P.C. had been issued against the accused. Now, he moved to the High Court seeking pre-arrest bail.

Court's observations 

At the outset, the Court said that the accused/applicant was not declared as a proclaimed offender on March 16, 2021, the date of filing anticipatory bail, therefore, the Court remarked thus:

"...to me such bar could not restrain the present applicant to file his anticipatory bail application before this Court under same section i.e. section 438 Cr.P.C. and, therefore, his anticipatory bail application may be heard and disposed of finally on merits...It has nowhere been indicated u/s 438 Cr.P.C. that the proclaimed offender would be barred to file such application. As to whether such proclaimed offender would be granted anticipatory bail or not would depend upon the facts and circumstances of the particular issue and also on the basis of bar, so imposed by the Apex Court in re: Lavesh (supra), Pradeep Sharma (supra) and Prem Shankar Prasad (supra)."

Therefore, the Court discarded the objection raised by the counsel for the opposite parties regarding the maintainability of the instant application for the reason that the proclamation u/s 82/83 Cr.P.C. had been issued against the applicant.

Regarding the allegations against the applicant, the Court prima facies observed that if the physical relationship had been established on the false promise of marriage and the physical relation was consensual in nature and it lasted for a long time, prima facie it may not be treated as rape but it may be considered as a breach of promise.

Consequently, taking into account the fact that the instant F.I.R. had been lodged after the unexplained delay of one year three months, and twenty-three days and the undertaking of the applicant that he shall cooperate with the investigation, the Court found it appropriate to protect the liberty till filing of the charge-sheet and allowed his bail plea.

However, considering the fact that the accused has not appeared before the investigating officer as yet, therefore, the Court directed the accused to appear before the investigating officer on July 25, 2022.

Case title - Suresh Babu v. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3532 of 2022]

Citation: 2022 LiveLaw (AB) 332

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