Can Anticipatory Bail Be Granted To Proclaimed Offender? Only In Exceptional & Rare Cases, Holds Supreme Court
The Supreme Court has observed that anticipatory bail can be granted to a person to a proclaimed offender only in an exceptional and rare case. The Court made this observation while setting aside an order passed by the the Punjab and Haryana High Court granting bail to the respondent, who was declared to be proclaimed offender under Section 82 of the Code of Criminal Procedure.“The...
The Supreme Court has observed that anticipatory bail can be granted to a person to a proclaimed offender only in an exceptional and rare case. The Court made this observation while setting aside an order passed by the the Punjab and Haryana High Court granting bail to the respondent, who was declared to be proclaimed offender under Section 82 of the Code of Criminal Procedure.
“The respondent, without first successfully assailing the order declaring him as a proclaimed offender, could not have proceeded to seek anticipatory bail. Looking to the factual prism, we are clear that the respondent’s application under Section 438, CrPC should not have been entertained, as he was a proclaimed offender”, observed the bench comprising Justices Ahsanuddin Amanullah and SVN Bhatti (State of Haryana v. Dharamraj).
To support the said observations, the Court relied upon the decisions passed in Lavesh v State (NCT of Delhi), (2012) 8 SCC 730, and Madhya Pradesh v Pradeep Sharma, (2014) 2 SCC 171, wherein the Apex Court was categorical against grant of anticipatory bail to a proclaimed offender.
Moreover, the Court also took into consideration that in an exceptional and rare case, the Apex Court or the High Courts can consider a plea seeking anticipatory bail, despite the applicant being a proclaimed offender, given that the Supreme Court and High Courts are Constitutional Courts. However, no exceptional situation had arisen in the case at hand.
Based on these facts and circumstances, the Court allowed the appeal and directed the respondent to surrender before the Court concerned within four weeks.
Anticipatory bail to be granted exercising judicial discretion
“We are cognizant that liberty is not to be interfered with easily. More so, when an order of pre-arrest bail already stands granted by the High Court. Yet, much like bail, the grant of anticipatory bail is to be exercised with judicial discretion", the Court observed in the judgment.
The said appeal was filed by the State of Haryana assailing impugned order passed by a Single Judge of the High Court of Punjab and Haryana wherein the Court granted anticipatory bail to the respondent.
Case Background
In the present case, First Information Report (FIR) was registered against the respondent under several sections of the Indian Penal Code, 1860 (IPC), including Sections 147 (Punishment for rioting), 148 (Rioting, armed with deadly weapon) and 364 (Kidnapping or abducting in order to murder).
Counsel, appearing for the appellant, submitted that in the background of the nature of the allegations and the materials collected as well as the respondent having been declared a proclaimed offender, grant of indulgence under Section 438 (Direction for grant of bail to person apprehending arrest) of the Code of Criminal Procedure, 1973 (CRPC) was erroneous and misplaced. It was further submitted that there is enough evidence to show the complicity of the appellant and further, based on this very order, other co-accused persons have been granted the benefit of anticipatory bail, which does not serve larger public interest.
On the other hand, counsel, appearing for the respondent, supported the impugned order and contended that the Investigating Agency has tried to unnecessarily harass and implicate the respondent.
Contours of Anticipatory Bail
At the outset, the Apex Court cited several judgments that elucidated the factors to be borne in mind while considering an application for bail. These included judgments pronounced in the cases of Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, Mahipal v. Rajesh Kumar alias Polia, , X v. State of Telangana, (2018) 16 SCC 511, XXX v. Union Territory of Andaman & Nicobar Islands, 2023 INSC 767.
It is worth mentioning that in the case of Mahipal, the Court held:
“The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. …”
Moving forward, the Court emphasised that in Vipan Kumar Dhir v. State of Punjab, (2021) 15 SCC 518, the court while relying upon Dolat Ram v. State of Haryana, (1995) 1 SCC 349 and X v. State of Telangana, cancelled the anticipatory bail granted to the accused therein.
Findings Of The Court With Respect To The Impugned Order
Addressing the facts of the present case, the Court expressed its discontentment with the impugned order and opined that it was not proper for the High Court to have granted anticipatory bail to the respondent. It noted that the High Court placed reliance on Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 to the effect that where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine, there is to be no automatic arrest. While the Court agreed with the ratio decidendi of Arnesh Kumar but observed:
“However, Section 364, IPC carries a term of imprisonment for life or rigorous imprisonment of ten years and fine. We are a bit perplexed as to how, despite addition of Section 364, IPC, the High Court took the view that Arnesh Kumar (supra) would aid the respondent in his quest for pre-arrest bail.”
Further, the Court also observed that High Court lost sight of was that the respondent was a declared proclaimed offender.
“As things were, the respondent was declared a proclaimed offender on 05.02.2021, and sought anticipatory bail from the High Court only in October, 2021. As such, it was not correct for the High Court to brush aside such factum, on the basis of averments alone”.
Case Title: STATE OF HARYANA v. DHARAMRAJ,
Citation : 2023 LiveLaw (SC) 739; 2023INSC784