Application For Anticipatory Bail Is Maintainable Even After An Accused Is Declared "Absconder": Madhya Pradesh HC [Read Judgment]

"No bar can exist against a person seeking anticipatory bail." The Gwalior Bench of the Madhya Pradesh High Court on Tuesday observed that declaration of an accused as an "absconder" under Section 82 of CrPC does not preclude him from filing an application for seeking anticipatory bail. The state government had contested the maintainability of the anticipatory bail application of a 40-yr-old man accused of committing rape on the pretext of marriage, on the ground that the accused was an absconder, required for investigation. The court was informed that the Superintendent of Police, Gwalior had announced a reward of Rs. 5,000/- over his arrest vide proclamation dated January 30, 2020. Reliance was placed on Lavesh v. State (NCT Of Delhi), (2012) 8 SCC 73, whereby the Apex Court had held, "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 82of the Code is not entitled the relief of anticipatory bail." Absconder's application loses "entitlement", not "maintainability" Giving an interpretation of this ruling, the bench of Justice Anand Pathak emphasized that the judgment does not talks about "maintainability" of anticipatory bail application after a person is declared absconder but, it merely suggests that the absconder loses "entitlement" to bail. "The word 'Entitled' used in the above referred para of Lavesh (supra) itself suggests that it talks mainly about entitlement on merits and not about maintainability," he emphasized. Elaborating on this aspect the court said, "…according to Apex Court, a person who is proclaimed offender under Sections 82 and 83 of Cr.P.C. loses the sheen on merits to seek anticipatory bail. His application deserves dismissal on merits if he is declared as absconder under Section 82 of Cr.P.C. but application is certainly maintainable." Personal liberty can't be curtailed on the basis of a transient provision The court then pointed out that Sections 82 and 83 of CrPC are transient/interim/provisional in nature and subject to proceedings under Sections 84-86 of CrPC. It thus held, "valuable right of personal liberty of an individual at least to seek anticipatory bail cannot be curtailed. Therefore, on this count also, application under Section 438 of Cr.P.C. is maintainable even if a person has been declared as proclaimed offender in terms of Section 82 of Cr.P.C." Anticipatory bail application maintainable until accused is arrested The court reinforced the importance of personal liberty of an individual in terms of Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 SC 1632, and held that an application for anticipatory bail is maintainable until a person is arrested. It observed, "The judgments pronounced by the Apex Court in the case of Lavesh and Pradeep Sharma (supra) nowhere bar the maintainability of the application under Section 438 of Cr.P.C. in wake of person being declared as absconder under Sections 82 and 83 of Cr.P.C. and understandably so because this would not have been in consonance with letter and spirit of Constitution Bench judgment of Apex Court pronounced in the case of Gurbaksh Singh Sibbia etc. (supra) and Sushila Aggarwal and others (supra) as well as two Judge Bench of Apex Court in the case of Bharat Chaudhary and another (supra) as well as Ravindra Saxena (supra) because these judgments categorically held that anticipatory bail is maintainable even after filing of charge-sheet and till the person is not arrested." Mere declaration of cash-award for arrest doesn't give effect to Section 82 Coming to the facts of the case, the court noted that the Superintendent of Police had only declared a bounty on arrest of the applicant herein, and no process under Section 82 of CrPC was issued. In this context the court observed, "in the present case, proceedings under Section 82 of Cr.P.C. are not given effect to yet (as per case-diary) and only cash award of Rs.5,000/- by Superintendent of Police has been declared. Said factor can certainly be an important consideration while deciding anticipatory bail application but not having overriding effect to create a bar for filing anticipatory bail application. Therefore, in the considered opinion of this Court, even if the police authority has declared award or prepared Farari Panchnama even then anticipatory bail application is maintainable, however, it is to be seen on merits that whether that application deserves to be considered and allowed as per the factors enumerated in Section 438 of Cr.P.C. itself and if any of those factors are not satisfied then the Court certainly has discretion to reject it. The said discretion has been given by Constitutional Bench decision of Hon'ble Apex Court in the case of Gurbaksh Singh Sibbia etc. (supra)." Consideration on ...

Application For Anticipatory Bail Is Maintainable Even After An Accused Is Declared "Absconder": Madhya Pradesh HC [Read Judgment]

Akshita Saxena

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