Supreme Court Cancels Anticipatory Bail for Absconding Accused in Cheating Case: Prem Shankar Prasad vs. State of Bihar (21 October 2021)

Date of the Judgment: 21 October 2021
Citation: [Not Available in Source]
Judges: M. R. Shah, J. and A. S. Bopanna, J.
Can a person who is declared an absconder be granted anticipatory bail? The Supreme Court of India addressed this critical question in a recent case involving allegations of cheating and financial misappropriation. The court overturned a High Court order that had granted anticipatory bail to an accused who had been declared an absconder. This judgment clarifies that individuals who evade arrest and are subject to legal proceedings under Section 82 and 83 of the Code of Criminal Procedure (CrPC) are not eligible for anticipatory bail. The judgment was authored by Justice M.R. Shah, with Justice A.S. Bopanna concurring.

Case Background

The case originated from a First Information Report (FIR) filed by Prem Shankar Prasad (the appellant) against Rajnish Srivastava (respondent No. 2) at Chapra Town Police Station, Saran. The FIR, registered as Case No. 453 of 2018, alleged offences under Sections 406, 407, 468, and 506 of the Indian Penal Code, 1860 (IPC). The core of the complaint revolved around a business transaction where the appellant claimed to have given Rs. 36,00,000 to the respondent for the purchase of medicines. When the medicines were not supplied, and the money was not returned, the appellant filed the complaint.

Timeline

Course of Proceedings

Following the registration of the FIR, an arrest warrant was issued against respondent No. 2 on 19 December 2018. As the accused evaded arrest, the Chief Judicial Magistrate issued a proclamation under Section 82 of the CrPC on 10 January 2019. Subsequently, respondent No. 2 filed an anticipatory bail application before the Trial Court, which was dismissed on 29 January 2019. The Trial Court rejected the bail application on merits and also because the accused was absconding and proceedings under Section 82 and 83 of the CrPC had been initiated. Despite these facts, the High Court of Judicature at Patna granted anticipatory bail to respondent No. 2 on 14 August 2019, which led to the present appeal before the Supreme Court.

Legal Framework

The case primarily revolves around Section 438 of the Code of Criminal Procedure, 1973 (CrPC), which provides for anticipatory bail. The Supreme Court also considered Sections 82 and 83 of the CrPC, which deal with the proclamation of an absconder and the attachment of their property.

Section 438 of the CrPC states:

“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.”

Section 82 of the CrPC deals with the proclamation for a person absconding.

Section 83 of the CrPC deals with the attachment of property of a person absconding.

The Supreme Court highlighted that the power under Section 438 of the CrPC is extraordinary and should be used in exceptional cases.

Arguments

Appellant’s Arguments:

• The appellant argued that the High Court erred in granting anticipatory bail, especially since the accused was avoiding arrest and not cooperating with the investigation.
• The appellant contended that the High Court ignored the fact that proceedings under Sections 82 and 83 of the CrPC had been initiated against the accused.
• It was submitted that the High Court did not consider the seriousness of the offences alleged under Sections 406 and 420 of the IPC.
• The appellant argued that the High Court incorrectly granted anticipatory bail by only observing that the accusation arose from a business transaction, without considering the nature of the allegations.
• The appellant relied on the Supreme Court’s decision in State of Madhya Pradesh vs. Pradeep Sharma [(2014) 2 SCC 171], which held that a person against whom a proclamation has been issued under Sections 82 and 83 of the CrPC is not entitled to anticipatory bail.
• The appellant also pointed out that a charge sheet had been filed against the accused under Sections 406 and 420 of the IPC.

Respondent’s Arguments:

• The respondent argued that the High Court was correct in granting anticipatory bail, as the accusation arose from a business transaction.
• The respondent submitted that the case might fall under Section 138 of the Negotiable Instruments Act, 1881, rather than the offences under Sections 406 and 420 of the IPC.
• The respondent claimed that he was available for interrogation and was not absconding.
• The respondent’s counsel stated that the Magistrate had yet to take cognizance of the charge sheet.

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was:

1. Whether the High Court was justified in granting anticipatory bail to respondent No. 2 despite the initiation of proceedings under Sections 82 and 83 of the CrPC against him.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• State of Madhya Pradesh vs. Pradeep Sharma [(2014) 2 SCC 171] – Supreme Court of India. The court relied on this case to emphasize that a person declared an absconder is not entitled to anticipatory bail. The ratio of this case is that if anyone is declared an absconder or proclaimed offender in terms of Section 82 of the CrPC, they are not entitled to anticipatory bail.
• Adri Dharan Das v. State of W.B. [(2005) 4 SCC 303] – Supreme Court of India. This case was referred to explain the scope of Section 438 of the CrPC, highlighting that the power under this section is extraordinary and should be exercised in exceptional cases.
• Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] – Supreme Court of India. This case was cited to reiterate that a person declared an absconder or proclaimed offender under Section 82 of the CrPC is not entitled to anticipatory bail.

Legal Provisions:

• Section 438 of the Code of Criminal Procedure, 1973 (CrPC): This section deals with the grant of anticipatory bail. The court noted that the power under this section should be exercised cautiously.
• Sections 82 and 83 of the Code of Criminal Procedure, 1973 (CrPC): These sections deal with the proclamation of an absconder and the attachment of their property. The court emphasized that initiating proceedings under these sections indicates that the accused is evading the law.
• Sections 406 and 420 of the Indian Penal Code, 1860 (IPC): These sections pertain to criminal breach of trust and cheating, respectively, which were the offences alleged against the respondent.
• Section 138 of the Negotiable Instruments Act, 1881: This section deals with the dishonor of cheques, which was an argument made by the respondent.

Judgment

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that the accused had been declared an absconder and proceedings under Sections 82 and 83 of the CrPC had been initiated against him. The court emphasized that a person who is evading the law and is declared an absconder is not entitled to the discretionary relief of anticipatory bail. The court also highlighted that the High Court had not considered the seriousness of the allegations against the accused and had incorrectly focused on the fact that the accusation arose from a business transaction. The court’s reasoning was also influenced by the earlier judgments of the Supreme Court which clarified the scope of Section 438 of the CrPC and held that it should not be used to protect absconders.

The Supreme Court held that the High Court had erred in granting anticipatory bail to respondent No. 2. The court observed that the High Court had ignored the fact that the accused was absconding and that proceedings under Sections 82 and 83 of the CrPC had been initiated against him. The court also noted that the High Court had failed to consider the seriousness of the allegations against the accused and had incorrectly focused on the fact that the accusation arose from a business transaction. The Supreme Court emphasized that the power to grant anticipatory bail under Section 438 of the CrPC is an extraordinary power and should be exercised with caution, especially when the accused is evading the law.

The Supreme Court quoted from State of Madhya Pradesh vs. Pradeep Sharma [(2014) 2 SCC 171]:

“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.”

The Court further noted:

“Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction.”

The Supreme Court also stated:

“The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.”

There was no minority opinion. The bench consisted of two judges, both of whom agreed on the decision.

Key Takeaways

• A person declared an absconder or proclaimed offender under Section 82 of the CrPC is generally not entitled to anticipatory bail.
• The High Court should consider the seriousness of the allegations and the conduct of the accused while deciding on anticipatory bail applications.
• The fact that an accusation arises from a business transaction does not automatically entitle the accused to anticipatory bail.
• The power under Section 438 of the CrPC is extraordinary and should be exercised with caution.

Directions

The Supreme Court directed respondent No. 2 to surrender before the concerned Trial Court within two weeks from the date of the judgment. After surrendering, it would be open for respondent No. 2 to apply for regular bail, which would be considered on its own merits.

Development of Law

The ratio decidendi of this case is that a person against whom a proclamation under Section 82 of the CrPC has been issued is not entitled to anticipatory bail. This judgment reinforces the position of law established in previous Supreme Court judgments, particularly State of Madhya Pradesh vs. Pradeep Sharma [(2014) 2 SCC 171] and Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730]. There is no change in the previous position of law, but this case reiterates the importance of considering the conduct of the accused and seriousness of allegations while deciding anticipatory bail applications.

Conclusion

The Supreme Court’s decision in Prem Shankar Prasad vs. State of Bihar reaffirms that anticipatory bail is not a right, especially for those who evade the law. The judgment emphasizes the importance of considering the conduct of the accused and the seriousness of the allegations while deciding on anticipatory bail applications. The court’s decision serves as a reminder that the process of law must be respected, and those who try to evade it cannot expect to receive the discretionary relief of anticipatory bail.