Filing Of Anticipatory Bail Application Through Advocate Can't Be Considered As Appearance Of Absconding Accused : Supreme Court

Recently, the Supreme Court observed that the mere filing of an anticipatory bail application by the accused could not be treated as his appearance before the court which had initiated proceedings under Section 82/83 Cr.P.C. against the accused.

“We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings (when accused is declared as proclaimed offender), as mentioned above are instituted.”, the Bench Comprising Justices CT Ravikumar and Sanjay Kumar said.

The aforesaid observation came while deciding a criminal appeal preferred by the accused against the refusal of the High Court to grant him anticipatory bail.

After non-complying with the summoning orders, the bailable and non-bailable warrants, the Trial Court ultimately issued a proclamation under Section 82/83 of Cr.P.C. declaring the accused to be an absconder and directed him to show its presence before the court.

Before the issuance of the proclamation, the accused preferred an anticipatory bail application and asked the court to defer the proceedings of a proclamation by stating that the filing of the anticipatory bail application by the accused should be considered his presence before the court. However, the court refused to grant anticipatory bail to the accused citing the pendency of the proclamation under Section 82/83 Cr.P.C.

Thus, the primary contention of the accused was that mere issuance of proclamation couldn't restrict the right of the accused to seek anticipatory bail.

Rejecting such contention, the Judgment authored by Justice CT Ravikumar observed that mere filing of an anticipatory bail application by the accused couldn't be considered his presence before the court in the proclamation proceedings, otherwise it would create a situation where every time the accused would prefer the anticipatory bail application to avoid his presence before the court in the Section 83 Cr.P.C. proceedings.

To this effect, the Supreme Court endorsed the Gujarat High Court judgment of Savitaben Govindbhai Patel & Ors. v. State of Gujarat, which held as follows:

“Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely.”, the Gujarat High Court said.

Also Read: No Anticipatory Bail To Accused Against Whom Non-Bailable Warrant & Proclamation Under Section 82 CrPC Are Pending: Supreme Court

Case Title: SRIKANT UPADHYAY VS. THE STATE OF BIHAR

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