Bail Application Liable To Be Denied Due To Non-appearance Of Absconding Accused: Srikant Upadhyay & Ors V. State Of Bihar And Anr

Case title:  

Srikant Upadhyay & Ors. v. State of Bihar & Anr

Date of Order:

14th March, 2024

Bench:  

Hon’ble Justice C.T. Ravikumar and Justice Sanjay Kumar

Parties:

Appellants: Srikant Upadhyay & Ors.

Respondents: State of Bihar & Anr

SUBJECT:

The appeal is against the dismissal of an anticipatory bail application filed by the appellant concerning FIR No. 79 of 2020, registered at Govindganj Police Station, Bihar under Section 341, 323, 354, 354 (B), 379, 504, 506 and 149 of the IPC and Section 3/4 of the Prevention of Witch (Daain) Practices Act, 1999.

IMPORTANT PROVISIONS:

Sec 156 (3) CrPC- any magistrate with authority may mandate for an investigation.

Sec 82 CrPC- Any Court may publish a written proclamation requiring any person against whom it has issued a warrant to appear at a specified place and time within thirty days of the date of the proclamation if it has reason to believe—whether or not after taking evidence—that the person has absconded or is hiding so that the warrant cannot be executed.

Sec 83 CrPC- Anytime after making a proclamation under section 82, the court may, for reasons to be documented in writing, direct the attachment of any of the proclaimed person's moveable or immovable property, or both: 

With the caveat that in cases in which the Court determines, by affidavit or other means, that the individual for whom the proclamation is intended to be issued, -

 (a) is ready to dispose of all or any portion of his property, or (b) is ready to remove all or any portion of his property from the Court's local jurisdiction, it may order the attachment concurrently with the proclamation's release. 

Sec 70 (1) CrPC- Any arrest warrant that is issued by a court under this code must be in written, signed by the court's presiding officer, and have the court's seal on it. 

Sec 70 (2) CrPC- Until it is executed or revoked by the court that issued it, each of these warrants will remain valid.

OVERVIEW: 

• The appellants filed an application for anticipatory bail in connection with FIR No.79 of 2020 registered at Govindgunj Police Station. The FIR was registered based on a complaint filed by Respondent No.4 under Section 156(3) of the Cr. PC. 
• The complaint alleged serious offenses including assault, abuse, and theft against the appellants and others. Despite the issuance of summons and warrants, the appellants failed to appear before the trial court.
• The trial court issued bailable and non-bailable warrants against the appellants. The appellants neither challenged these warrants nor appeared before the court. They subsequently filed a bail-cum-surrender application but withdrew it fearing arrest. 
• The trial court initiated proceedings under Section 82 and 83 of the Cr. PC against the appellants. The appellants moved an anticipatory bail application before the High Court, which was dismissed. The appellants contended that the pendency of the anticipatory bail application should prevent the trial court from proceeding further.

ISSUES RAISED:

• Whether the pendency of an anticipatory bail application should prevent the trial court from proceeding further with warrants and proclamations? 
• Whether the failure of the appellants to appear before the court, despite legal processes being initiated against them, constitutes evasion of arrest or absconding? 
• Whether the appellants' argument that they were merely exercising their legal rights by filing an anticipatory bail application is valid, given their non-compliance with court procedures and warrants? 
• Whether the absence of an interim order in the anticipatory bail application bars the court from issuing proclamations or proceeding under Section 83 of the Cr.PC?
• Whether the appellants' conduct, including their consistent disobedience of court orders and attempts to delay proceedings, disqualifies them from seeking anticipatory bail?

ARGUMENTS FROM THE APPELLANT:

• The appellant's counsel cited several legal precedents to support their arguments. These include Prem Shankar Prasad v. State of Bihar, State of Madhya Pradesh v. Pradeep Sharma, and Lavesh v. State (NCT of Delhi). These cases establish that individuals declared as absconders or proclaimed offenders are generally not entitled to anticipatory bail. 
• The appellant's senior counsel argued that even if an application for anticipatory bail is pending without interim protection and the court subsequently issues a proclamation under Section 82 of the Cr.PC, the pending application should still be considered on its merits. 
• They contended that the mere pendency of a non-bailable warrant should not automatically lead to the dismissal of an anticipatory bail application.
• The appellants argued that their failure to appear in court or comply with warrants does not equate to evading arrest or absconding. They claimed they were merely exercising their legal right to seek anticipatory bail. 
• They asserted that the issuance of proclamations under Section 82 of the Cr.PC should not be a reason to dismiss their anticipatory bail application without considering its merits.

ARGUMENTS FROM THE RESPONDENT:

• The state's counsel opposed the appellant's proposition. They arguede that the issuance of a non-bailable warrant and initiation of proceedings under Section 82 of the Cr.PC are justiciable.
• They asserted that in the absence of interim protection, there is no legal impediment to issuing a non-bailable warrant or initiating proceedings under Section 82, Cr.PC.

JUDGEMENT ANALYSIS:

• The court acknowledged the exceptional nature of anticipatory bail and emphasizes that it should be granted sparingly. It reiterated that when an accused is avoiding arrest or absconding, anticipatory bail may not be granted. 
• The court delved into the requirements and procedures outlined in Section 82 of the Cr.PC. It emphasized that this provision is triggered by the issuance of a warrant of arrest and requires the subjective satisfaction of the magistrate regarding the accused's absconding status. 
• The court scrutinized the actions and inactions of the appellants, noting their failure to appear before the court despite legal processes being initiated against them. It questioned the appellants' claim that they were merely exercising their legal rights, given their non-compliance with court procedures and warrants.
• The court concurred with previous rulings that filing an anticipatory bail application does not constitute appearance before the court. It emphasized the importance of physical appearance before the court, especially in cases involving proceedings under Sections 82 and 83 of the Cr.PC. 
• The court examined the appellants' argument that the pendency of an anticipatory bail application should prevent the court from proceeding with proclamations or warrants. It rejected this argument, stating that the absence of an interim order in the anticipatory bail application does not bar the court from issuing proclamations or proceeding under Section 83 of the Cr.PC. 

CONCLUSION:

• The court underscored that the power to grant anticipatory bail is exceptional and should be exercised judiciously. It stressed the need for accused individuals to comply with legal processes and submit to the authority of the law, even while exercising their rights through legal remedies.
• The court reiterated that the grant of anticipatory bail is an extraordinary power and should be exercised cautiously. It highlighted the appellants' consistent disobedience of court orders and their failure to appear before the trial court, even after the issuance of warrants and proclamations. Due to the appellants' conduct and their attempts to delay proceedings, the court concluded that they are not entitled to pre-arrest bail.