This court rejected an application for anticipatory bail under Section 438 Cr.P.C. holding that applicants, who were declared absconders and faced non-bailable warrants under Section 82 Cr.P.C., were not entitled to relief.
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A.F.R.
Court No. - 77
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8536 of 2022
Applicant :- Anand Shankar Pandey And 2 Others Opposite Party :- State Of U.P And Another Counsel for Applicant :- Niraj Kumar Dwivedi,Adya Prasad Tewari,Pradip Kumar Singh Counsel for Opposite Party :- G.A.,Rajesh Kumar Roy Sharma
Hon'ble Mrs. Manju Rani Chauhan,J.
informant's nephew on 27.07.2020, after marriage, the deceased and his family members demanded dowry from the applicants and on non-fulfilment of the aforesaid demand, the applicant alongwith his family members committed maarpeet with the applicant no.3. However, the applicant no.3 did not take any legal action and always compromised with the deceased and his family members as she wanted to live happily with them. Out of the wedlock, she was blessed with a child, who is about eight months old at the time of incident. On 12.06.2022, the deceased alongwith his family members committed maarpeet with the applicant no.3 and forced her to leave the house. Thereafter, the applicant no.3 after informing her father (applicant no.1) went to her parents' house and lodged a complaint against the deceased and his family members on 13.06.2022. On such complaint being lodged, the S.H.O. concerned called the deceased and his family members, but they did not turn up.
contention, he has relied upon the judgements of the Apex Court in the cases of Umang Singhar vs. State of Madhya Pradesh and another reported in 2022 LawSuit(MP) 3, Mariano Anto Bruno and another vs. The Inspector of Police reported in 2022 0 Supreme(SC) 1034, Sunilkumar Rajeshwarprasad Sinha vs. State of Gujarat reported in 2022 LawSuit(Guj) 1774 and Daxaben vs. State of Gujarat and others reported in 2022 0 Supreme(SC) 633. He further submits that applicants undertake to co-operate during investigation and trial and they would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicants are granted anticipatory bail, they shall not misuse the liberty of bail and will co-operate during investigation and would obey all conditions of bail.
7. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for granted anticipatory bail to the applicants by contending that the applicants are named accused persons. The investigation is going on and the applicants are not co-operating in it. They further submit that the real fact is that the money was taken from the deceased by the applicant promising him to provide him Government Job, however, when did not provide any job, he demanded back his money from the applicant no.1 and he was threatened for being killed in case he demands money in future. After sometime, the deceased Akash was called by the applicants to their house and was offered sweets which contained some poisonous substances, due to which the deceased was admitted in Saket Hospital on 20.07.2021 in I.C.U. After being discharged from the Hospital, the deceased moved an application before the Senior Superintendent of Police, Prayagraj on 22.07.2021 but nothing was done, therefore, an application under Section 156(3) Cr.P.C. was filed by the deceased on 05.08.2021, copy of the said application has been annexed as Annexure no.S.C.A.-2 to the counter affidavit filed in support of bail application. Subsequently, after recording the statements under Sections 200 and 202 Cr.P.C., the aforesaid application U/s 156(3) Cr.P.C. has been treated as complaint case.
made out by the suicide note. The case does not fall under the category of section 438 Cr.P.C. They further submit that as per the report of S.S.P., Prayagraj, the court below has issued Nonbailable Warrants and intiated the proceedings under Section 82 Cr.P.C. against the applicants, which goes to show that the applicants are not co-operating in the investigation. Therefore, the relief as prayed cannot be granted.
"74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. ........."
"14. Law on the applicability or grant of anticipatory bail under section 438 Cr.P.C. may be briefly summarised as under:
14.1. In Shri Gurbaksh Singh Sibbia and Others v. State of Punjab1, a Constitution Bench of this Court, Chief Justice Y.V. Chandrachud, speaking for the Court dealt with in detail on the considerations for grant of anticipatory bail.
14.2. In Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others2; this Court relying upon the Constitution Bench judgment in Shri Gurbaksh Singh Sibbia laid down in paragraph 112 of the report the following factors and parameters to be considered while dealing with an application for anticipatory bail:
"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused 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;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
14.3. In yet another recent Constitution Bench judgment in the case of Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another3, in paragraph 85 of the report Justice Ravindra Bhatt laid down the guiding principles in dealing with applications under Section 438. Justice M.R. Shah had authored a separate opinion. Justice Arun Misra, Justice Indira Banerjee and Justice Vineet Saran agreed with both the opinions. The concluding guiding factors stated in paragraphs 92, 92.1 to 92.9 are reproduced hereunder:
"92. This Court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438 CrPC.
92.1. Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab4, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.
92.2. It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat
(of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
92.3. Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc.
The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr.P.C. [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a casebycase basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.
92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.
92.5. Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the chargesheet till end of trial.
92.6. An order of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted prearrest bail.
92.8. The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in
regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya."
92.9. It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc."
"16. Recently, in Lavesh v. 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 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 : (SCC p. 733) "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."
Thus the High court has committed an error in granting anticipatory bail to respondent No.2 – accused ignoring the proceedings under Section 8283 of Cr.PC."
of Criminal Procedure is made out in favour of applicant.
Order Date :- 3.1.2023 Jitendra/-
Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad
2 issues framed by the court
Whether anticipatory bail can be granted to applicants who have been declared absconders and for whom non-bailable warrants have been issued under Section 82 Cr.P.C.
Whether non-cooperation in investigation by applicants justifies rejection of anticipatory bail application under Section 438 Cr.P.C.
Colour shows how this judgement treated each authority
Umang SingharReferred¶13
Umang Singhar vs. State of Madhya Pradesh and another, 2022 LawSuit(MP) 3
Mariano Anto BrunoReferred¶13
Mariano Anto Bruno and another vs. The Inspector of Police, 2022 0 Supreme(SC) 1034
Sunilkumar Rajeshwarprasad SinhaReferred¶13
Sunilkumar Rajeshwarprasad Sinha vs. State of Gujarat, 2022 LawSuit(Guj) 1774
P. ChidambaramRelied on¶20
P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC 24 · Who else cites this
State Rep. By The CBI v. Anil SharmaReferred¶21
State Rep. By The CBI v. Anil Sharma, (1997) 7 SCC 187 · Who else cites this
Sadhna ChaudharyRelied on¶23
Sadhna Chaudhary Vs. State of Rajasthan & Anr., 2022 (237) AIC 205 (SC)
Shri Gurbaksh Singh SibbiaRelied on¶39
Shri Gurbaksh Singh Sibbia and Others v. State of Punjab
Siddharam Satlingappa MhetreRelied on¶35
Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others
Sushila AggarwalRelied on¶44
Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another
Prem Shankar PrasadRelied on¶52
Prem Shankar Prasad vs. The State of Bihar and another, AIR (2021) SC 5125 · Who else cites this
Lavesh v. State (NCT of Delhi)Referred¶52
Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730 · Who else cites this
2 provisions across 1 enactments
Anand Shankar Pandey
Smt. Pushpa Pandey
Sweta Pandey
Dhananjay Pandey
Dablu Pandey
Pappu Mishra
Jitendra Kumar Yadav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
