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

The Supreme Court held that an accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under Section 82(1) Cr.P.C. is pending against him.

“Thus, it is obvious that the position of law, which was being followed with alacrity, is that in cases where an accused against whom non-bailable warrant is pending and the process of proclamation under Sections 82/83, Cr.PC is issued, is not entitled to the relief of anticipatory bail.”, the Bench Comprising Justices C.T. Ravikumar and Sanjay Kumar observed.

The aforesaid observation in the Judgment authored by Justice C.T Ravikumar came while deciding a Criminal Appeal preferred by the Appellant/Accused against the Judgment of the High Court which had denied the pre-arrest/anticipatory bail to the accused on the ground that the non-bailable warrant and the proclamation is issued against the accused for defying the lawful orders of the Trial Court and attempting to delay the proceedings.

Against the refusal to grant pre-arrest bail under Section 438 Cr.P.C., the accused preferred the Criminal Appeal before the Supreme Court.

The gist of the dispute is related to the non-appearance of the accused/appellant before the trial court despite the issuance of summons, bailable warrant, non-bailable warrant and then proclamation under Sections 82/83 Cr.P.C. After defying the order of summons, the court issued the bailable warrant, and thereafter the non-bailable warrant to secure the presence of the accused before the court. However, when the non-bailable warrant didn't succeed in securing the accused presence, the court ultimately issued a proclamation by declaring the accused as a proclaimed offender/absconder.

Before the Supreme Court, Senior Counsel R. Basant appearing for the Appellant/accused submitted that the High Court shouldn't have dismissed the bail application without hearing on merits as the accused is not defying the arrest but only exercising his legal right to be released on anticipatory bail. He contended that if the application seeking anticipatory bail was filed before the issue of non-bailable warrant and the proclamation under Sections 82/82 Cr.P.C., then the pending application for anticipatory bail is liable to be considered on its own merits and, the pending application of prearrest bail could not be dismissed merely on the ground that the non-bailable warrant and the proclamation is pending against the accused.

For the sake of clarity, it is important to mention that the non-bailable warrant was pending against the accused when he moved the High Court to seek pre-arrest bail. However, the proclamation was issued during the pendency of the anticipatory bail application.

Thus, the short question that appeared before the Supreme Court was whether the Accused/Appellant would be entitled to anticipatory/pre-arrest bail despite the non-bailable warrant and proclamation is pending against him.

Answering negatively, the Supreme Court held that the accused against whom the non-bailable warrant and proclamation is issued wouldn't be entitled to seek anticipatory bail.

To this effect, the court relied on its judgment of Prem Shankar Prasad v. State of Bihar and Anr. where also the Supreme Court set aside the order of the High Court granting anticipatory bail to the accused after taking note of the fact that the accused was absconding and concealing himself to avoid service of a warrant of arrest and the proceedings under Sections 82/83, Cr.PC that has been initiated against him.

Further, the court referred to the Judgment of Lavesh v. State (NCT of Delhi), where also the court denied the anticipatory bail to the accused after noting that the warrant of arrest and proclamation is pending against the accused.

“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 he is not entitled to the relief of anticipatory bail.”, the Supreme Court said in Lavesh v. State (NCT of Delhi).

Mere Filing of Anticipatory Bail Application Cannot Be Said To Be Appearance By The Accused Under The Proclamation

It is worthwhile to mention that the accused had filed an anticipatory bail for registering attendance in obedience to the proclamation under Section 82 Cr.P.C. However, deprecating such an approach, the Supreme Court held that filing of an anticipatory bail through an advocate would not and could not be treated as an appearance before a court by a person against whom proclamation proceedings are pending.

To this effect, the Supreme Court endorsed the Gujarat High Court judgment, 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.”, the Gujarat High Court said in Savitaben Govindbhai Patel & Ors. v. State of Gujarat.

Filing of Anticipatory Bail Application Couldn't Be A Bar To Proceedings Under Section 82 Cr.P.C.

It was specifically pleaded by the Accused that the proceedings under Section 82 Cr.P.C. wouldn't have any effect on the accused as the application seeking anticipatory bail was filed before the issuance of the proclamation, and since the High Court should have granted the interim order protecting the arrest of the accused.

However, rejecting such a contention the Supreme Court held that in the absence of any interim order, the pendency of an application for anticipatory bail shall not bar the Trial Court from issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr.PC, in accordance with law.

Conclusion

“Even after the issuance of nonbailable warrants on 03.11.2022 they did not care to appear before the Trial Court and did not apply for regular bail after its recalling. It is a fact that even after coming to know about the proclamation under Section 82 Cr.PC., they did not take any steps to challenge the same or to enter appearance before the Trial Court to avert the consequences. Such conduct of the appellants in the light of the aforesaid circumstances leaves us with no hesitation to hold that they are not entitled to seek the benefit of pre-arrest bail.”, the Supreme Court concluded.

Based on the above premise, the Supreme Court found no ground to interfere with the High Court's Judgment, thus the plea seeking anticipatory bail preferred by the accused stands dismissed.

Counsels For Petitioner(s) Mr. Basant R, Sr. Adv. Mr. Anand Shankar, AOR Mr. Debashis Mukherjee, Adv. Mr. Param Nand, Adv. Mr. Kavinesh Rm, Adv. Mr. Onkar Nath, Adv.

Counsels For Respondent(s) Mr. Anshul Narayan, Adv. Mr. Prem Prakash, AOR Mr. Bhanwar Pal Singh Jadon, Adv. Mr. Susheel Tomar, Adv. Mr. Satya Prakash, Adv. Mr. Chetan Jadon, Adv. Ms. Abha R. Sharma, AOR

Case Title: SRIKANT UPADHYAY VS. THE STATE OF BIHAR

Citation : 2024 LiveLaw (SC) 232

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