Anticipatory Bail Plea Maintainable Even If Chargesheet Shows Accused As Declared Absconder: Madhya Pradesh HC

The Jabalpur bench of the Madhya Pradesh High Court while answering a reference made by a single judge, clarified that an anticipatory bail plea is maintainable even if the chargesheet filed shows the accused as a declared absconder. 

The court further ruled that an anticipatory bail plea is maintainable even when proceedings under CrPC Section 82 (Proclamation for person absconding) & 83 (Attachment of property of person absconding) or Section 299 (Record of evidence in absence of accused) have been initiated against the accused or when the accused has been declared as absconder/proclaimed offender.

The division bench of Chief Justice Suresh Kumar Kait and Justice Vivek Jain observed, “…taking note of the legal aspects on the question and the judgments passed by the Hon'ble Apex Court, we are inclined to hold that in both the scenarios, where the proceedings under Section 82/83 and 299 of Cr.P.C.(84/85 and 335 of the BNSS) have been initiated against the accused and/or he has been declared proclaimed offender, the application for anticipatory bail would be maintainable. However, such consideration and grant of anticipatory bail to the accused would depend upon the gravity and seriousness of the offence involved therein. It is needless to mention here that such power should be exercised in a very cautious manner and in extreme and exceptional cases only in the interest of justice.”

"In this view of the matter the judgments rendered by the learned Single Judge in the case of Bhupender Singh and Gaurav Malviya and Gaurav Malviya (supra) and other allied cases holding that anticipatory bail application is not maintainable in cases where the chargesheet has been filed, are not the correct enunciation of law and the same are hereby overruled to that extent.We, therefore, hold that the application for anticipatory bail is maintainable even if the charge sheet has been filed showing accused as declared absconder," the bench clarified

The present case was referred by the Single Judge vide order dated September 9, 2022 to be considered by the Division Bench. The following questions were considered by the Division Bench:

(i) Whether the anticipatory bail petition filed under Section 438 of CrPC is maintainable, in case proceedings under Section 82 & 83 or Section 299 of CrPC have been initiated against the accused?

(ii) Whether the anticipatory bail petition filed under Section 438 of CrPC is maintainable, when the accused has been declared as 'absconder/proclaimed offender' under Sections 82 and 83 or Section 299 of CrPC by the authority competent?

Background

As per the factual matrix of the case, the petitioner was accused of offences punishable under Sections 420(cheating), 406(criminal breach of trust) and 409(Criminal breach of trust by public servant, or by banker, merchant or agent)/34 (common intention) of the IPC.

After the investigation, a charge-sheet was filed before the concerned Court showing him as absconding. Then proceedings under Sections 82 and 83 Cr.P.C were initiated against him. The petitioner was declared proclaimed offender and a perpetual warrant of arrest was issued against him. He thereafter moved an anticipatory bail plea before trial court which was rejected. The petitioner thus approached the High Court seeking anticipatory bail.

During the hearing before the learned Single Judge, a question of maintainability of the application for anticipatory bail was raised by the State. The Single Bench while referring to contradictory orders of the Madhya Pradesh High Court in two similar cases referred the case to a division bench. The two court orders of the court were divergent in nature as one held that anticipatory bail application of a proclaimed offender is not maintainable while the other held that the application can be heard and decided by the Court.

After hearing the arguments put forward by the amicus curiae and Government advocate, the bench referred to Bhupendra Singh Vs. State of M.P., wherein the Single Judge was of the view that when the charge-sheet is filed showing the applicant absconding, the application under Section 438 of the Cr.P.C. for anticipatory bail was not maintainable.The bench noted that the single judge had referred to Pradeep Sharma vs. State of M.P., where the Apex Court considering the seriousness of the offence and that the accused was not cooperating with the investigation and being proclaimed offender, anticipatory bail was not granted to him. 

Further, in Bharat Chaudhary and Another Vs. State of Bihar and another (2003) the apex court had an occasion to consider the power under Section 438 Cr.P.C wherein it was held that there is no restriction in regard to exercise of power in a suitable case either by the Court of Session, High Court or the Apex Court even when cognizance is taken or charge-sheet is filed. The Apex Court further held that even if the cognizance is taken or the charge-sheet has been filed would not by itself prevent the Court from granting anticipatory bail in appropriate cases. The only important factor is to be taken into consideration while granting anticipatory bail is gravity of offence and also need for custodial interrogation.

Further, in another case, the Apex Court granted anticipatory bail by saying that it is fit case for grant of anticipatory bail in the event of declaration under Section 82 of the CrPC on the condition that the appellant shall cooperate with the further investigation.

After considering various judgments, the division bench said:

“It is clear like a noon-day that the power under Section 438 of the Cr.P.C. is an extraordinary power and therefore, it cannot be curtailed. If a view is taken that in all cases application for anticipatory bail is not maintainable, it would curtail the power conferred upon the Courts under Section 438 of the Cr.P.C./482 of the BNSS. However, there shall be restrictions with regard to grant of anticipatory bail to the accused which will depend upon the nature of the offences which are alleged against the accused coupled with the fact that such grant of anticipatory bail to the accused does not in any manner hamper and affect the ongoing investigation of the case”.

Thus, the court held that in both the scenarios, where the proceedings under Section 82/83 and 299 of Cr.P.C. (84/85 and 335 of the BNSS) have been initiated against the accused and/or he has been declared proclaimed offender, the application for anticipatory bail would be maintainable.

Case Title: Deepankar Vishwas Versus State Of Madhya Pradesh Through P.S. Omti, District Jabalpur,

Miscellaneous Criminal Case No. 25252 Of 2022

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