Application for anticipatory bail rejected. Applicants declared as proclaimed offenders under Section 82 CrPC due to absconding since 2004; Court holds they are not entitled to anticipatory bail under Section 438 CrPC.
Application rejected; anticipatory bail not granted as applicants are proclaimed offenders.
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Diksha Rane 906. ABA 287-23.doc
DIKSHA DINESH RANE
Digitally signed by DIKSHA DINESH RANE Date: 2023.02.09 20:33:13 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.287/2023
LAIK LAL MOHAMMAD KHAN & ANR. ..APPLICANTS VS. THE STATE OF MAHARASHTRA ..RESPONDENT
Adv. Nikhil S. Ghate i/b. Adv. Sandeep Mishra for the applicants.
Ms. A. A. Takalkar, APP for State.
PSI Rajendra Chitte, Rabale Police Station, Navi Mumbai.
CORAM : M. S. KARNIK, J.
DATE : FEBRUARY 8, 2023.
P.C. :
1. Heard learned counsel for the applicants and learned APP.
2. This is an application for pre-arrest bail in respect of First Information Report (FIR) No.I-69/2004 registered with the Rabale Police Station, under Sections 363, 366 read with 34 of the Indian Penal Code, 1860 (hereafter “the IPC”, for short).
3. Learned APP pointed out that the present applicants are absconding since July 5, 2004. The proclamation is issued against them. The investigating ofocer tried to
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Diksha Rane 906. ABA 287-23.doc
search the applicant at their known address in Uttar Pradesh. The proclamation order was pasted on the door of the house of the applicants.
4. The complaint was lodged by one Yakoob Ismail khan alleging that on January 30, 2004, when they woke up in the morning they found that the daughter of the complainant aged 15 years was not at home. The missing complaint was, therefore, filed on February 2, 2004 with the Rabale Police Station. They searched for their daughter. The brother of the complainant informed that since January 31, 2004, the watchman of the building Lal Mohammad Khan (accused no.1) and sons Laik Khan and Khalik Khan (the applicants herein) were also missing. On February 1, 2004, Lal Mohammad Khan (accused no.1) and the applicant no.1 called the brother of the complainant to tell him that they had brought the missing girl from Airoli. The applicant no.1 expressed his desire to marry Tabassum. The accused no.1Lal Mohammad Khan was arrested on July 6, 2004 and he has been released on bail. The present applicants absconded.
5. My attention is invited to the decision of the Hon’ble
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Diksha Rane 906. ABA 287-23.doc
Supreme Court in the case of Prem Shankar Prasad vs. State of Bihar and anr.1 wherein in paragraph 16 it is observed thus: -
“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-a-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
1 AIR 2021 SC 5125
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Diksha Rane 906. ABA 287-23.doc
anticipatory bail to respondent No.2 – accused ignoring the proceedings under Section 82-83 of Cr.PC.”
6. In this view of the matter, as the applicants have been declared as proclaimed offenders in terms of Section 82 of the Code of Criminal Procedure, they are not entitled to the relief of the anticipatory bail.
7. The application is rejected and disposed of accordingly.
(M. S. KARNIK, J.)
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2 issues framed by the court
Whether an applicant declared as a proclaimed offender under Section 82 CrPC is entitled to anticipatory bail under Section 438 CrPC.
Whether anticipatory bail must be denied when the accused has absconded since July 2004 and a proclamation has been issued.
Colour shows how this judgement treated each authority
Prem Shankar Prasad vs. State of Bihar and anr.Explained¶20
Prem Shankar Prasad vs. State of Bihar and anr.
Lavesh v. State (NCT of Delhi)Explained¶24
Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] · Who else cites this
3 provisions across 2 enactments
LAIK LAL MOHAMMAD KHAN & ANR.
THE STATE OF MAHARASHTRA
M. S. KARNIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
