Oral Order
1. Apprehending arrest in connection with Crime No.20/2012, registered at Police Station Lalpur, District Mungeli, Chhattisgarh for commission of offence punishable under Section 420/34 of the Indian Penal Code (for short, IPC), the applicant herein has filed this application under Section 438 of Cr.P.C. for releasing him on anticipatory bail.
2. Case of the prosecution, in brief, is that the present applicant and other co-accused persons obtained Rs.19,50,000/- from various persons between 24.06.2011 to December, 2011 for securing employment for them, and thereby cheated the complainant and committed the aforesaid offences.
3. Shri Govind Dewangan, learned counsel appearing for the applicant would submit that applicant has not committed any offence and four co-accused have already been acquitted by the jurisdictional criminal court, since the charge sheet has been filed against the present applicant in his absence, he could not contest the trial, and therefore, he be granted privilege of anticipatory bail.
4. Per contra, Shri Neeraj Pradhan, learned panel lawyer appearing for the State while opposing the bail application would submit that charge sheet against the present applicant was filed in his absence as he could not be searched and arrested as he was declared absconded on 24.03.2012 and Farari Panchnama was prepared and thereafter in exercise of power under Section 299 Cr.P.C. standing warrant of arrest has been issued by Judicial Magistrate, First Class, Mungeli on 29.05.2012 and as such, the applicant being absconder and not co-operating with the investigation and trial, is not entitled for anticipatory bail.
5. I have heard learned counsel appearing for the parties and considered their rival submissions made therein and perused the case diary with utmost circumspection.
6. After hearing learned counsel appearing for the parties and after perusal of case diary, it appears that charge sheet has been filed against the present applicant in his absence as he did not cooperate with investigation and failed to appear before the court when charge sheet was filed, and therefore, Chief Judicial Magistrate, Mungeli, has issued standing warrant of arrest against him on 29.05.2012.
7. The short question for consideration would be whether an accused who is absconding and not co-operated with the investigation and even not appearing in the trial and against whom standing warrant of arrest has been issued by the jurisdiction criminal court under Section 299 Cr.P.C. is entitled for privilege of anticipatory bail.
8. At this stage, it would proper to notice provision for anticipatory bail as provided in Section 438 of the Code of Criminal Procedure, 1973 as under:-
438. Direction for grant of bail to person apprehending arrest
[(1) When any person has reason to believe that he may be arrested on an accusation of having committed a nonbailable 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 natue and gravity of the accusation;
(ii) the antecedents of the applicant including that 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.
(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice."]
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including -(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).
Thus, the power exercisable under Section 438 Cr.P.C. is to be exercised only in exceptional cases and upon the fulfillment of factors mentioned in Section 438(1) Cr.P.C.
9. The Supreme Court in case of Lavesh v. State (NCT of Delhi) (2012(8) SCC 730) has clearly held that an absconder accused or the proclaimed offender is not entitled for anticipatory bail and observed as under :
From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and 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 is not entitled the relief of anticipatory bail.
10. Very recently, in the matter of State of Madhya Pradesh v. Pradeep Sharma (AIR 2014 SC 626), their Lordships of the Supreme Court reiterating the principle laid down in Lavesh (supra) and following the said decision has held that if anyone is declared as an absconder /proclaimed offender in terms of Section 82 of the Code he is not entitled for anticipatory bail by observing as under:-
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.
11. Reverting back to the facts of the case it would appear that charge-sheet was filed against the applicant in his absence on 30.03.2012 and since he was declared absconded by the police, the concerned criminal court in exercise of power under Section 299 Cr.P.C. issued standing warrant of arrest against him by order dated 29.05.2012. The said order states as under:-
**29-05-2012
HINDI
12. Bearing in mind the principle of law laid down by their Lordships of the Supreme Court in above-stated cases Lavesh(supra), State of Madhya Pradesh(supra) it would appear that, the absconder or the proclaimed offender who is concealing himself in order to avoid execution of warrant is not entitled for privilege of anticipatory bail. In the instant case standing warrant of arrest has been issued as the applicant has neither co-operated in investigation nor appearing in the trial and avoiding process of the court issued against him timeto-time to secure his presence and ultimately finding no way the jurisdictional criminal court has issued the standing warrant of arrest against him on 29.05.2012 and as such following the law laid down by their Lordships in this regard, in the considered opinion of this Court the applicant is not entitled for the privilege of anticipatory bail. The application for anticipatory bail deserves to and accordingly rejected. No order as to cost(s).