Supreme Court clarifies the maintainability of anticipatory bail applications when proclamation under Section 82 CrPC is issued: Srikant Upadhyay vs. State of Bihar (2024) INSC 202 (14 March 2024)

Introduction

Date of the Judgment: 14 March 2024
Citation: 2024 INSC 202
Judges: C.T. Ravikumar, J. and Sanjay Kumar, J. (authored by C.T. Ravikumar, J.)

Can a person, who is avoiding arrest and has had a proclamation issued against them under Section 82 of the Code of Criminal Procedure, 1973 (CrPC), still seek anticipatory bail? The Supreme Court of India recently addressed this critical question, clarifying the interplay between the process of proclamation for an absconding person and the right to seek pre-arrest bail. This judgment clarifies that the pendency of an anticipatory bail application, without any interim protection, does not bar the court from issuing a proclamation under Section 82 of the CrPC, and such a person is not entitled to seek pre-arrest bail.

Case Background

The case involves an appeal against an order by the High Court of Judicature at Patna, which dismissed the appellants’ application for anticipatory bail. The appellants were accused in FIR No. 79 of 2020, registered at Govindganj Police Station, District East Champaran, Bihar. The charges included offenses under Sections 341, 323, 354, 354(B), 379, 504, 506, and 149 of the Indian Penal Code, 1860 (IPC), and Sections 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 (the Daain Act). The FIR was lodged based on a complaint that the appellants and other family members assaulted and humiliated the complainant’s grandmother, accusing her of being a witch.

Initially, the police filed a charge sheet against only one accused for minor offenses. However, the Trial Court took cognizance of more serious offenses against all the accused, including the appellants, and issued summons. When the accused did not appear, bailable warrants were issued. While some co-accused appeared and obtained regular bail, the appellants did not. They filed a bail-cum-surrender application, which they later withdrew fearing arrest. Subsequently, the Trial Court issued non-bailable warrants, and when the appellants still did not appear, it initiated proceedings under Section 82 of the CrPC, issuing a proclamation for their appearance. The appellants then approached the High Court for anticipatory bail, which was dismissed, leading to the present appeal before the Supreme Court.

Timeline:

Legal Framework

The Supreme Court considered the following legal provisions:

• Section 82(1) of the Code of Criminal Procedure, 1973 (CrPC): This section deals with the proclamation for a person absconding. It states that if a court believes that a person against whom a warrant has been issued is absconding or concealing themselves, it may issue a written proclamation requiring them to appear at a specified place and time. The court noted that the use of the expression ‘reason to believe’ suggests that the Magistrate must be subjectively satisfied that the person concerned has absconded or concealed themselves.
• Section 438 of the Code of Criminal Procedure, 1973 (CrPC): This section provides for the grant of anticipatory bail. The court highlighted that the power to grant anticipatory bail is an extraordinary power and should be exercised only in exceptional cases. The proviso to this section states that if the High Court or the Court of Sessions does not pass an interim order or rejects the application for anticipatory bail, the police officer can arrest the person without a warrant.
• Section 70(2) of the Code of Criminal Procedure, 1973 (CrPC): This section mandates that every warrant issued under Section 70(1) remains in force until it is canceled by the court or executed.
• Sections 19, 20, and 21 of the Indian Penal Code, 1860 (IPC): These sections define “Judge,” “Court of Justice,” and “Public Servant,” respectively. The Court noted that a judge is a public servant and a court is a court of justice as per these definitions.
• Section 174 of the Indian Penal Code, 1860 (IPC): This section deals with non-attendance in obedience to an order from a public servant. It states that if a person intentionally omits to attend a place or time as ordered by a public servant, they can be punished with imprisonment or fine.
• Section 174A of the Indian Penal Code, 1860 (IPC): This section deals with non-appearance in response to a proclamation under Section 82 of the CrPC. It states that whoever fails to appear as required by a proclamation under Section 82 will be punished with imprisonment or fine. If they are declared a proclaimed offender, the punishment can be more severe.

Arguments

Arguments of the Appellants:

• The appellants argued that the settled position of law, which denies anticipatory bail to absconders, should not apply when an anticipatory bail application is already pending.
• They contended that the issuance of a proclamation under Section 82 of the CrPC during the pendency of their anticipatory bail application should not be a reason to reject the application on merits.
• The appellants claimed they were not “evading arrest” or “absconding” but were merely exercising their legal right to seek anticipatory bail.
• They argued that the Trial Court should not have issued a proclamation under Section 82 CrPC simply because the anticipatory bail application was pending.
• They also argued that the High Court should not have dismissed their application for anticipatory bail without considering it on its merits.

Arguments of the Respondent-State:

• The State argued that the issuance of a non-bailable warrant and the initiation of proceedings under Section 82 of the CrPC are justifiable.
• They contended that the pendency of an anticipatory bail application, without interim protection, does not prevent the issuance of a non-bailable warrant or the initiation of proceedings under Section 82 of the CrPC.
• The State argued that the appellants’ conduct of not appearing before the Trial Court despite summons and warrants, and their withdrawal of the bail-cum-surrender application, indicated that they were evading arrest.
• The State submitted that the appellants were not entitled to anticipatory bail as they were defying the authority of law.
• They argued that the power to grant anticipatory bail is an exceptional one and should not be exercised in favor of those who are evading the legal process.

[TABLE] of Submissions:

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. When an application seeking anticipatory bail filed by a person apprehending arrest is pending without any interim protection, whether the initiation of proceedings for the issuance of a proclamation under Section 82 of the CrPC would make that application unworthy of further consideration on its own merits?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court relied on Prem Shankar Prasad v. State of Bihar and Anr. [(2022) 14 SCC 516]*, State of Madhya Pradesh v. Pradeep Sharma [(2014) 2 SCC 171]*, and Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730]* to reiterate the position that an accused who is absconding and against whom proceedings under Sections 82/83 CrPC have been initiated is not entitled to anticipatory bail.
• The Court cited HDFC Bank Ltd. v. J.J.Mannan & Anr. [2010 (1) SCC 679]* to highlight that the object of anticipatory bail is to prevent harassment, not to aid those who defy the law.
• The Court agreed with the view taken by the High Court of Gujarat in Savitaben Govindbhai Patel & Ors. v. State of Gujarat [2004 SCC OnLine Guj 345]* that filing an anticipatory bail application cannot be treated as an appearance before the court for proceedings under Sections 82 and 83 of the CrPC.
• The Court agreed with the view of the Bombay High Court in Shrenik Jayantilal Jain and Anr. v. State of Maharashtra Through EOW Unit II, Mumbai [2014 SCC Online Bom 549]* that there is no statutory bar for arrest if the anticipatory bail application is adjourned without passing an interim order.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the appellants’ consistent defiance of court orders. The Court emphasized that the appellants failed to appear before the Trial Court despite summons, bailable warrants, and non-bailable warrants. Their conduct of withdrawing a bail-cum-surrender application further indicated an intention to evade arrest. The Court also highlighted that the power to grant anticipatory bail is an extraordinary one and should not be extended to those who are deliberately avoiding the legal process.

The Court’s reasoning was also based on the interpretation of legal provisions, particularly Sections 82 and 438 of the CrPC, and the understanding that the pendency of an anticipatory bail application without an interim order does not prevent the issuance of a proclamation under Section 82 of the CrPC.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio Table:

The Court’s decision was primarily influenced by the factual aspects of the case, particularly the appellants’ conduct in evading the legal process. However, legal considerations, such as the interpretation of relevant provisions of the CrPC and the nature of anticipatory bail, also played a significant role.

Logical Reasoning:

The Court considered alternative interpretations, such as the argument that the pendency of an anticipatory bail application should prevent the issuance of a proclamation under Section 82 CrPC. However, the Court rejected this interpretation, stating that it would allow people to evade the legal process by repeatedly filing anticipatory bail applications. The Court emphasized that the power to grant anticipatory bail is an extraordinary one and should not be used to undermine the legal process.

The court concluded that “in the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr.PC, in accordance with law.”

The Court also stated, “when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.”

The Court further noted, “Since their action is nothing short of defying the lawful orders of the Court and attempting to delay the proceedings, this appeal must fail.”

Key Takeaways

• The pendency of an anticipatory bail application, without any interim protection, does not prevent a court from issuing a proclamation under Section 82 of the CrPC.
• A person who is evading arrest and has had a proclamation issued against them is generally not entitled to anticipatory bail.
• The power to grant anticipatory bail is an extraordinary power and should be exercised cautiously, not as a matter of course.
• Filing an anticipatory bail application is not considered an appearance before the court for the purpose of proceedings under Sections 82 and 83 of the CrPC.
• Individuals must comply with court orders and cannot use the process of seeking anticipatory bail to evade arrest.

Potential Future Impact:

• This judgment reinforces the importance of complying with court orders and the legal process.
• It clarifies that the legal system will not be used to protect those who are deliberately evading arrest.
• The judgment may lead to a more cautious approach by courts in granting anticipatory bail, particularly in cases where there is evidence of the accused evading the legal process.

Directions

No specific directions were given by the Supreme Court in this case.

Specific Amendments Analysis

There was no specific amendment analysis in this case.

Development of Law

The ratio decidendi of this case is that the pendency of an anticipatory bail application, without any interim protection, does not bar the Trial Court from issuing a proclamation under Section 82 of the CrPC. This judgment reinforces the principle that anticipatory bail is an extraordinary power to be exercised cautiously and not as a matter of course, particularly for those who are evading the legal process. There is no change in the previous position of law, but this judgment clarifies the interplay between the process of proclamation for an absconding person and the right to seek pre-arrest bail.

Conclusion

In conclusion, the Supreme Court dismissed the appeal, holding that the High Court was correct in rejecting the anticipatory bail application. The Court clarified that the pendency of an anticipatory bail application, without any interim protection, does not prevent the issuance of a proclamation under Section 82 of the CrPC. The Court emphasized that anticipatory bail is an extraordinary remedy and should not be used by those who are evading the legal process. This judgment underscores the importance of complying with court orders and the legal process.