Sections 302
and 120B read with Section 34 of IPC. -Anticipatory Bail - an absconder/proclaimed offender is not entitled for anticipatory bail - high court with out considering these facts granted anticipatory bail - set aside - appeal was allowed =
in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this
Court, (of which both of us were parties) considered the scope of granting
relief under Section 438 vis-à-vis to a person who was declared as an
absconder or proclaimed offender in terms of Section 82 of the Code. In
para 12, this Court held as under:
“12. From these materials and information, it is clear that the
present appellant was not available for interrogation and
investigation and was declared as “absconder”. Normally, when the
accused is “absconding” and declared as a “proclaimed offender”, there
is no question of granting anticipatory bail. 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.”
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
In the case on hand, a
perusal of the materials i.e., confessional statements of Sanjay Namdev,
Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the
respondents administered poisonous substance to the deceased.
Further, the
statements of witnesses that were recorded and the report of the Department
of Forensic Medicine & Toxicology Government Medical College & Hospital,
Nagpur dated 21.03.2012 have confirmed the existence of poison in milk
rabri.
Further, it is brought to our notice that warrants were issued on
21.11.2012 for the arrest of the respondents herein. Since they were not
available/traceable, a proclamation under Section 82 of the Code was issued
on 29.11.2012. The documents (Annexure-P13) produced by the State clearly
show that the CJM, Chhindwara, M.P. issued a proclamation requiring the
appearance of both the respondents/accused under Section 82 of the Code to
answer the complaint on 29.12.2012. All these materials were neither
adverted to nor considered by the High Court while granting anticipatory
bail and the High Court, without indicating any reason except stating
“facts and circumstances of the case”, granted an order of anticipatory
bail to both the accused. It is relevant to point out that both the
accused are facing prosecution for offences punishable under Sections 302
and 120B read with Section 34 of IPC. In such serious offences,
particularly, the respondents/accused being proclaimed offenders, we are
unable to sustain the impugned orders of granting anticipatory bail. The
High Court failed to appreciate that it is a settled position of law that
where the accused has been declared as an absconder and has not cooperated
with the investigation, he should not be granted anticipatory bail.
13) In the light of what is stated above, the impugned orders of the High
Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of
2012 and 15283 of 2012 respectively are set aside. Consequently, the
subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011
releasing the accused on bail after taking them into custody in compliance
with the impugned order of the High Court is also set aside.
14) In view of the same, both the respondents/accused are directed to
surrender before the court concerned within a period of two weeks failing
which the trial Court is directed to take them into custody and send them
to jail.
15) Both the appeals are allowed on the above terms.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 2049 OF 2013
(Arising out of S.L.P. (Crl.) No. 4102 of 2013)
State of Madhya Pradesh .... Appellant(s)
Versus
Pradeep Sharma ....
Respondent(s)
WITH
2 CRIMINAL APPEAL No. 2050 OF 2013
(Arising out of S.L.P. (Crl.) No. 4406 of 2013)
J U D G M E N T
P.Sathasivam, CJI.
1) Leave granted.
2) These appeals are filed against the orders dated 10.01.2013 and
17.01.2013 passed by the High Court of Madhya Pradesh Principal Seat at
Jabalpur in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012
respectively whereby the High Court granted anticipatory bail to the
respondents herein.
3) Brief facts:
a) The case of the prosecution is that Rajesh Singh Thakur (the
deceased), resident of village Gopalpur, Tehsil Chaurai, District
Chhindwara, Madhya Pradesh and Pradeep Sharma (respondent herein), resident
of the same village, were having enmity with each other on account of
election to the post of Sarpanch.
b) On 10.09.2011, Pradeep Sharma (respondent herein), in order to get
rid of Rajesh Singh Thakur (the deceased), conspired along with other
accused persons and managed to call him to the Pawar Tea House, Chhindwara
on the pretext of setting up of a tower in a field where they offered him
poisoned milk rabri (sweet dish).
c) After consuming the same, when he left the place to meet his sister,
his condition started getting deteriorated because of vomiting and
diarrhea. Immediately, the father of the deceased took him to the District
Hospital, Chhindwara wherefrom he was referred to the Government Hospital,
Chhindwara.
d) Since there was no improvement in his condition, on 11.09.2011, he
was shifted to the Care Hospital, Nagpur where he took his last breath.
The hospital certified the cause of death to be poisoning. On the very
same day, after sending the information to the Police Station, Sitabardi,
Nagpur, the body was sent for the post mortem.
e) Inder Singh Thakur-father of the deceased submitted a written
complaint to the Police Station Kotwali, Chhindwara on 13.09.2011
suspecting the role of the respondents herein. After investigation, a
First Information Report (in short ‘the FIR’) being No. 1034/2011 dated
18.10.2011 was registered under Sections 302 read with 34 of the Indian
Penal Code, 1860 (in short ‘the IPC’).
f) On 01.08.2012, Pradeep Sharma (respondent herein) moved an
application for anticipatory bail by filing Misc. Criminal Case No. 7093 of
2012 before the High Court which got rejected vide order dated 01.08.2012
on the ground that custodial interrogation is necessary in the case.
g) On 26.08.2012, a charge sheet was filed in the court of Chief
Judicial Magistrate, Chhindwara against Sanjay Namdev, Rahul Borkar, Ravi
Paradkar and Vijay @ Monu Brahambhatt whereas the investigation in respect
of Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi
(respondents herein), absconding accused, continued since the very date of
the incident.
h) On 21.11.2012, arrest warrants were issued against Pradeep Sharma,
Sudhir Sharma and Gudda @ Naresh Raghuvanshi but the same were returned to
the Court without service. Since the accused persons were not traceable,
on 29.11.2012, a proclamation under Section 82 of the Code of Criminal
Procedure, 1973 (in short ‘the Code’) was issued against them for their
appearance to answer the complaint.
i) Instead of appealing the order dated 01.08.2012, Pradeep Sharma
(respondent herein) filed another application for anticipatory bail being
Misc. Criminal Case No. 9996 of 2012 before the High Court. Vide order
dated 10.01.2013, the High Court granted anticipatory bail to Pradeep
Sharma (respondent herein). Similarly, another accused-Gudda @ Naresh
Raghuvanshi was granted anticipatory bail by the High Court vide order
dated 17.01.2013 in Misc. Criminal Case No. 15283 of 2012.
j) Being aggrieved by the orders dated 10.01.2013 and 17.01.2013, State
of Madhya Pradesh has filed the above appeals before this Court.
k) In the meantime, the respondents herein approached the Court of Chief
Judicial Magistrate, Chhindwara for the grant of regular bail. Vide order
dated 20.02.2013, the accused persons were enlarged on bail.
4) Heard Ms. Vibha Datta Makhija, learned senior counsel for the
appellant-State and Mr. Niraj Sharma, learned counsel for the respondents.
5) The only question for consideration in these appeals is whether the
High Court is justified in granting anticipatory bail under Section 438 of
the Code to the respondents/accused when the investigation is pending,
particularly, when both the accused had been absconding all along and not
cooperating with the investigation.
6) Ms. Vibha Datta Makhija, learned senior counsel for the appellant-
State, by drawing our attention to the charge sheet, submitted that the
charges filed against the respondents/accused relate to Sections 302, 120B
and 34 of the IPC which are all serious offences and also of the fact that
both of them being absconders from the very date of the incident, the High
Court is not justified in granting anticipatory bail that too without
proper analysis and discussion.
7) On the other hand, Mr. Niraj Sharma, learned counsel for the
respondents in both the appeals supported the order passed by the High
Court and prayed for dismissal of the appeals filed by the State.
8) We have carefully perused the relevant materials and considered the
rival contentions.
9) In order to answer the above question, it is desirable to refer
Section 438 of the Code which reads as under:-
“438. Direction for grant of bail to person apprehending arrest.—(1)
Where any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to
the High Court or the Court of Session for a direction under this
section that in the event of such arrest he shall be released on bail;
and that Court may, after taking into consideration, inter alia, the
following factors, namely—
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring
or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for
the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court
of Session, has not passed any interim order under this sub-section or
has rejected the application for grant of anticipatory bail, it shall
be open to an officer in charge of a police station to arrest, without
warrant the applicant on the basis of the accusation apprehended in
such application.
Xxx xxx xxx”
10) The above provision makes it clear that the power exercisable under
Section 438 of the Code is somewhat extraordinary in character and it is to
be exercised only in exceptional cases where it appears that the person may
be falsely implicated or where there are reasonable grounds for holding
that a person accused of an offence is not likely to otherwise misuse his
liberty.
11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303, this Court
considered the scope of Section 438 of the Code as under:-
“16. Section 438 is a procedural provision which is concerned with the
personal liberty of an individual who is entitled to plead innocence,
since he is not on the date of application for exercise of power under
Section 438 of the Code convicted for the offence in respect of which
he seeks bail. The applicant must show that he has “reason to believe”
that he may be arrested in a non-bailable offence. Use of the
expression “reason to believe” shows that the belief that the
applicant may be arrested must be founded on reasonable grounds. Mere
“fear” is not “belief” for which reason it is not enough for the
applicant to show that he has some sort of vague apprehension that
someone is going to make an accusation against him in pursuance of
which he may be arrested. Grounds on which the belief of the applicant
is based that he may be arrested in non-bailable offence must be
capable of being examined. If an application is made to the High Court
or the Court of Session, it is for the court concerned to decide
whether a case has been made out for granting of the relief sought.
The provisions cannot be invoked after arrest of the accused. A
blanket order should not be generally passed. It flows from the very
language of the section which requires the applicant to show that he
has reason to believe that he may be arrested. A belief can be said to
be founded on reasonable grounds only if there is something tangible
to go by on the basis of which it can be said that the applicant’s
apprehension that he may be arrested is genuine. Normally a direction
should not issue to the effect that the applicant shall be released on
bail “whenever arrested for whichever offence whatsoever”. Such
“blanket order” should not be passed as it would serve as a blanket to
cover or protect any and every kind of allegedly unlawful activity. An
order under Section 438 is a device to secure the individual’s
liberty, it is neither a passport to the commission of crimes nor a
shield against any and all kinds of accusations likely or unlikely. On
the facts of the case, considered in the background of the legal
position set out above, this does not prima facie appear to be a case
where any order in terms of Section 438 of the Code can be passed.”
12) Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this
Court, (of which both of us were parties) considered the scope of granting
relief under Section 438 vis-à-vis to a person who was declared as an
absconder or proclaimed offender in terms of Section 82 of the Code. In
para 12, this Court held as under:
“12. From these materials and information, it is clear that the
present appellant was not available for interrogation and
investigation and was declared as “absconder”. Normally, when the
accused is “absconding” and declared as a “proclaimed offender”, there
is no question of granting anticipatory bail. 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.”
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
In the case on hand, a
perusal of the materials i.e., confessional statements of Sanjay Namdev,
Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the
respondents administered poisonous substance to the deceased.
Further, the
statements of witnesses that were recorded and the report of the Department
of Forensic Medicine & Toxicology Government Medical College & Hospital,
Nagpur dated 21.03.2012 have confirmed the existence of poison in milk
rabri.
Further, it is brought to our notice that warrants were issued on
21.11.2012 for the arrest of the respondents herein. Since they were not
available/traceable, a proclamation under Section 82 of the Code was issued
on 29.11.2012. The documents (Annexure-P13) produced by the State clearly
show that the CJM, Chhindwara, M.P. issued a proclamation requiring the
appearance of both the respondents/accused under Section 82 of the Code to
answer the complaint on 29.12.2012. All these materials were neither
adverted to nor considered by the High Court while granting anticipatory
bail and the High Court, without indicating any reason except stating
“facts and circumstances of the case”, granted an order of anticipatory
bail to both the accused. It is relevant to point out that both the
accused are facing prosecution for offences punishable under Sections 302
and 120B read with Section 34 of IPC. In such serious offences,
particularly, the respondents/accused being proclaimed offenders, we are
unable to sustain the impugned orders of granting anticipatory bail. The
High Court failed to appreciate that it is a settled position of law that
where the accused has been declared as an absconder and has not cooperated
with the investigation, he should not be granted anticipatory bail.
13) In the light of what is stated above, the impugned orders of the High
Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of
2012 and 15283 of 2012 respectively are set aside. Consequently, the
subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011
releasing the accused on bail after taking them into custody in compliance
with the impugned order of the High Court is also set aside.
14) In view of the same, both the respondents/accused are directed to
surrender before the court concerned within a period of two weeks failing
which the trial Court is directed to take them into custody and send them
to jail.
15) Both the appeals are allowed on the above terms.
………….…………………………CJI.
(P. SATHASIVAM)
.………….……………………………J.
(RANJAN GOGOI)
NEW DELHI;
DECEMBER 6, 2013.
-----------------------
7
and 120B read with Section 34 of IPC. -Anticipatory Bail - an absconder/proclaimed offender is not entitled for anticipatory bail - high court with out considering these facts granted anticipatory bail - set aside - appeal was allowed =
in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this
Court, (of which both of us were parties) considered the scope of granting
relief under Section 438 vis-à-vis to a person who was declared as an
absconder or proclaimed offender in terms of Section 82 of the Code. In
para 12, this Court held as under:
“12. From these materials and information, it is clear that the
present appellant was not available for interrogation and
investigation and was declared as “absconder”. Normally, when the
accused is “absconding” and declared as a “proclaimed offender”, there
is no question of granting anticipatory bail. 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.”
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
In the case on hand, a
perusal of the materials i.e., confessional statements of Sanjay Namdev,
Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the
respondents administered poisonous substance to the deceased.
Further, the
statements of witnesses that were recorded and the report of the Department
of Forensic Medicine & Toxicology Government Medical College & Hospital,
Nagpur dated 21.03.2012 have confirmed the existence of poison in milk
rabri.
Further, it is brought to our notice that warrants were issued on
21.11.2012 for the arrest of the respondents herein. Since they were not
available/traceable, a proclamation under Section 82 of the Code was issued
on 29.11.2012. The documents (Annexure-P13) produced by the State clearly
show that the CJM, Chhindwara, M.P. issued a proclamation requiring the
appearance of both the respondents/accused under Section 82 of the Code to
answer the complaint on 29.12.2012. All these materials were neither
adverted to nor considered by the High Court while granting anticipatory
bail and the High Court, without indicating any reason except stating
“facts and circumstances of the case”, granted an order of anticipatory
bail to both the accused. It is relevant to point out that both the
accused are facing prosecution for offences punishable under Sections 302
and 120B read with Section 34 of IPC. In such serious offences,
particularly, the respondents/accused being proclaimed offenders, we are
unable to sustain the impugned orders of granting anticipatory bail. The
High Court failed to appreciate that it is a settled position of law that
where the accused has been declared as an absconder and has not cooperated
with the investigation, he should not be granted anticipatory bail.
13) In the light of what is stated above, the impugned orders of the High
Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of
2012 and 15283 of 2012 respectively are set aside. Consequently, the
subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011
releasing the accused on bail after taking them into custody in compliance
with the impugned order of the High Court is also set aside.
14) In view of the same, both the respondents/accused are directed to
surrender before the court concerned within a period of two weeks failing
which the trial Court is directed to take them into custody and send them
to jail.
15) Both the appeals are allowed on the above terms.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 2049 OF 2013
(Arising out of S.L.P. (Crl.) No. 4102 of 2013)
State of Madhya Pradesh .... Appellant(s)
Versus
Pradeep Sharma ....
Respondent(s)
WITH
2 CRIMINAL APPEAL No. 2050 OF 2013
(Arising out of S.L.P. (Crl.) No. 4406 of 2013)
J U D G M E N T
P.Sathasivam, CJI.
1) Leave granted.
2) These appeals are filed against the orders dated 10.01.2013 and
17.01.2013 passed by the High Court of Madhya Pradesh Principal Seat at
Jabalpur in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012
respectively whereby the High Court granted anticipatory bail to the
respondents herein.
3) Brief facts:
a) The case of the prosecution is that Rajesh Singh Thakur (the
deceased), resident of village Gopalpur, Tehsil Chaurai, District
Chhindwara, Madhya Pradesh and Pradeep Sharma (respondent herein), resident
of the same village, were having enmity with each other on account of
election to the post of Sarpanch.
b) On 10.09.2011, Pradeep Sharma (respondent herein), in order to get
rid of Rajesh Singh Thakur (the deceased), conspired along with other
accused persons and managed to call him to the Pawar Tea House, Chhindwara
on the pretext of setting up of a tower in a field where they offered him
poisoned milk rabri (sweet dish).
c) After consuming the same, when he left the place to meet his sister,
his condition started getting deteriorated because of vomiting and
diarrhea. Immediately, the father of the deceased took him to the District
Hospital, Chhindwara wherefrom he was referred to the Government Hospital,
Chhindwara.
d) Since there was no improvement in his condition, on 11.09.2011, he
was shifted to the Care Hospital, Nagpur where he took his last breath.
The hospital certified the cause of death to be poisoning. On the very
same day, after sending the information to the Police Station, Sitabardi,
Nagpur, the body was sent for the post mortem.
e) Inder Singh Thakur-father of the deceased submitted a written
complaint to the Police Station Kotwali, Chhindwara on 13.09.2011
suspecting the role of the respondents herein. After investigation, a
First Information Report (in short ‘the FIR’) being No. 1034/2011 dated
18.10.2011 was registered under Sections 302 read with 34 of the Indian
Penal Code, 1860 (in short ‘the IPC’).
f) On 01.08.2012, Pradeep Sharma (respondent herein) moved an
application for anticipatory bail by filing Misc. Criminal Case No. 7093 of
2012 before the High Court which got rejected vide order dated 01.08.2012
on the ground that custodial interrogation is necessary in the case.
g) On 26.08.2012, a charge sheet was filed in the court of Chief
Judicial Magistrate, Chhindwara against Sanjay Namdev, Rahul Borkar, Ravi
Paradkar and Vijay @ Monu Brahambhatt whereas the investigation in respect
of Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi
(respondents herein), absconding accused, continued since the very date of
the incident.
h) On 21.11.2012, arrest warrants were issued against Pradeep Sharma,
Sudhir Sharma and Gudda @ Naresh Raghuvanshi but the same were returned to
the Court without service. Since the accused persons were not traceable,
on 29.11.2012, a proclamation under Section 82 of the Code of Criminal
Procedure, 1973 (in short ‘the Code’) was issued against them for their
appearance to answer the complaint.
i) Instead of appealing the order dated 01.08.2012, Pradeep Sharma
(respondent herein) filed another application for anticipatory bail being
Misc. Criminal Case No. 9996 of 2012 before the High Court. Vide order
dated 10.01.2013, the High Court granted anticipatory bail to Pradeep
Sharma (respondent herein). Similarly, another accused-Gudda @ Naresh
Raghuvanshi was granted anticipatory bail by the High Court vide order
dated 17.01.2013 in Misc. Criminal Case No. 15283 of 2012.
j) Being aggrieved by the orders dated 10.01.2013 and 17.01.2013, State
of Madhya Pradesh has filed the above appeals before this Court.
k) In the meantime, the respondents herein approached the Court of Chief
Judicial Magistrate, Chhindwara for the grant of regular bail. Vide order
dated 20.02.2013, the accused persons were enlarged on bail.
4) Heard Ms. Vibha Datta Makhija, learned senior counsel for the
appellant-State and Mr. Niraj Sharma, learned counsel for the respondents.
5) The only question for consideration in these appeals is whether the
High Court is justified in granting anticipatory bail under Section 438 of
the Code to the respondents/accused when the investigation is pending,
particularly, when both the accused had been absconding all along and not
cooperating with the investigation.
6) Ms. Vibha Datta Makhija, learned senior counsel for the appellant-
State, by drawing our attention to the charge sheet, submitted that the
charges filed against the respondents/accused relate to Sections 302, 120B
and 34 of the IPC which are all serious offences and also of the fact that
both of them being absconders from the very date of the incident, the High
Court is not justified in granting anticipatory bail that too without
proper analysis and discussion.
7) On the other hand, Mr. Niraj Sharma, learned counsel for the
respondents in both the appeals supported the order passed by the High
Court and prayed for dismissal of the appeals filed by the State.
8) We have carefully perused the relevant materials and considered the
rival contentions.
9) In order to answer the above question, it is desirable to refer
Section 438 of the Code which reads as under:-
“438. Direction for grant of bail to person apprehending arrest.—(1)
Where any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to
the High Court or the Court of Session for a direction under this
section that in the event of such arrest he shall be released on bail;
and that Court may, after taking into consideration, inter alia, the
following factors, namely—
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring
or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for
the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court
of Session, has not passed any interim order under this sub-section or
has rejected the application for grant of anticipatory bail, it shall
be open to an officer in charge of a police station to arrest, without
warrant the applicant on the basis of the accusation apprehended in
such application.
Xxx xxx xxx”
10) The above provision makes it clear that the power exercisable under
Section 438 of the Code is somewhat extraordinary in character and it is to
be exercised only in exceptional cases where it appears that the person may
be falsely implicated or where there are reasonable grounds for holding
that a person accused of an offence is not likely to otherwise misuse his
liberty.
11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303, this Court
considered the scope of Section 438 of the Code as under:-
“16. Section 438 is a procedural provision which is concerned with the
personal liberty of an individual who is entitled to plead innocence,
since he is not on the date of application for exercise of power under
Section 438 of the Code convicted for the offence in respect of which
he seeks bail. The applicant must show that he has “reason to believe”
that he may be arrested in a non-bailable offence. Use of the
expression “reason to believe” shows that the belief that the
applicant may be arrested must be founded on reasonable grounds. Mere
“fear” is not “belief” for which reason it is not enough for the
applicant to show that he has some sort of vague apprehension that
someone is going to make an accusation against him in pursuance of
which he may be arrested. Grounds on which the belief of the applicant
is based that he may be arrested in non-bailable offence must be
capable of being examined. If an application is made to the High Court
or the Court of Session, it is for the court concerned to decide
whether a case has been made out for granting of the relief sought.
The provisions cannot be invoked after arrest of the accused. A
blanket order should not be generally passed. It flows from the very
language of the section which requires the applicant to show that he
has reason to believe that he may be arrested. A belief can be said to
be founded on reasonable grounds only if there is something tangible
to go by on the basis of which it can be said that the applicant’s
apprehension that he may be arrested is genuine. Normally a direction
should not issue to the effect that the applicant shall be released on
bail “whenever arrested for whichever offence whatsoever”. Such
“blanket order” should not be passed as it would serve as a blanket to
cover or protect any and every kind of allegedly unlawful activity. An
order under Section 438 is a device to secure the individual’s
liberty, it is neither a passport to the commission of crimes nor a
shield against any and all kinds of accusations likely or unlikely. On
the facts of the case, considered in the background of the legal
position set out above, this does not prima facie appear to be a case
where any order in terms of Section 438 of the Code can be passed.”
12) Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this
Court, (of which both of us were parties) considered the scope of granting
relief under Section 438 vis-à-vis to a person who was declared as an
absconder or proclaimed offender in terms of Section 82 of the Code. In
para 12, this Court held as under:
“12. From these materials and information, it is clear that the
present appellant was not available for interrogation and
investigation and was declared as “absconder”. Normally, when the
accused is “absconding” and declared as a “proclaimed offender”, there
is no question of granting anticipatory bail. 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.”
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
In the case on hand, a
perusal of the materials i.e., confessional statements of Sanjay Namdev,
Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the
respondents administered poisonous substance to the deceased.
Further, the
statements of witnesses that were recorded and the report of the Department
of Forensic Medicine & Toxicology Government Medical College & Hospital,
Nagpur dated 21.03.2012 have confirmed the existence of poison in milk
rabri.
Further, it is brought to our notice that warrants were issued on
21.11.2012 for the arrest of the respondents herein. Since they were not
available/traceable, a proclamation under Section 82 of the Code was issued
on 29.11.2012. The documents (Annexure-P13) produced by the State clearly
show that the CJM, Chhindwara, M.P. issued a proclamation requiring the
appearance of both the respondents/accused under Section 82 of the Code to
answer the complaint on 29.12.2012. All these materials were neither
adverted to nor considered by the High Court while granting anticipatory
bail and the High Court, without indicating any reason except stating
“facts and circumstances of the case”, granted an order of anticipatory
bail to both the accused. It is relevant to point out that both the
accused are facing prosecution for offences punishable under Sections 302
and 120B read with Section 34 of IPC. In such serious offences,
particularly, the respondents/accused being proclaimed offenders, we are
unable to sustain the impugned orders of granting anticipatory bail. The
High Court failed to appreciate that it is a settled position of law that
where the accused has been declared as an absconder and has not cooperated
with the investigation, he should not be granted anticipatory bail.
13) In the light of what is stated above, the impugned orders of the High
Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of
2012 and 15283 of 2012 respectively are set aside. Consequently, the
subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011
releasing the accused on bail after taking them into custody in compliance
with the impugned order of the High Court is also set aside.
14) In view of the same, both the respondents/accused are directed to
surrender before the court concerned within a period of two weeks failing
which the trial Court is directed to take them into custody and send them
to jail.
15) Both the appeals are allowed on the above terms.
………….…………………………CJI.
(P. SATHASIVAM)
.………….……………………………J.
(RANJAN GOGOI)
NEW DELHI;
DECEMBER 6, 2013.
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