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KEY TAKEAWAYS

  • Anyone who is declared as an absconder or proclaimed offender in terms of Section 82 of the Criminal Procedure Code is not entitled to the relief of anticipatory bail.
  • A person against whom a warrant had been issued and who absconds or conceals himself in order to avoid execution of warrant is declared as a proclaimed offender in terms of Section 82 of the CrPC.

INTRODUCTION

Section 82 of the Criminal Procedure Code states that a proclaimed offender is a person who has been identified as a person absconding from the court proceedings where the court announces the particular individual as a transmitted offender and guides the concerned law enforcement authorities to capture the individual named in the proceeding and make him stand under the watchful eye of the court.A proclaimed offender procedure is a judicial process that can be initiated for the police to identify a person who has been declared a criminal and show them to the court.
Section 438 CrPC provides direction to grant of bail to person apprehending arrest. Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable 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 the Court should take into consideration, inter-alia, the following factors, namely-

  • the nature and gravity of the accusation;
  • the antecedents of the applicant
  • the possibility of the applicant to flee from justice; and
  • where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

In a recent judgment of Prem Shankar Prasad v. the State of Bihar and Anr., the Supreme Court ruled that people who are declared as proclaimed offenders are not entitled to bail. This article aims to explore and analyze the judgment and also elucidates various precedents related to this matter

ABSCONDER AND ANTICIPATORY BAIL: JUDGEMENT ANALYSIS

In a recent judgment of Prem Shankar Prasad v. the State of Bihar and Anr, the Supreme Court ruled that people who are declared as proclaimed offenders are not entitled to bail. The Court also held that a person cannot be granted anticipatory bail simply because the nature of the accusation arose out of a business transaction.

Even if a business transaction is stated, there may be offences under the IPC. The case was pertainingto a transaction of a dishonoredcheque. A First Information Report was lodged against the accused under various sections of the IPC. A warrant of arrest was also issued against them.

The counsel for the accused argued that since the accused was absconding, and he hadn’t co-operated with the investigating agency, anticipatory bail must not be granted.

The Advocate on side of the accused argued that the nature of the accusation is that it arises out of a business transaction. He argued that since the cheque was given and the same was later dishonored, it cannot be said that offences under Sections 406 and 420 of the IPC are made out. It would fall at most under Section 138 of Negotiable Instruments Act,1881.

The Court rejected the arguments of the accused and noted that a charge-sheet has been filed against the accused under various sections of the IPC. It also noted that an arrest warrant was issued against the accused on December 19, 2018 by the magistrate and thereafter proceedings were initiated under Section 82 and 83.The Supreme Court has observed that the High Court has just ignored factual and procedural considerations in granting anticipatory bail to a person under Section 82 of the CrPC.The Court held that the nature of the allegation and the accusation are to be considered and not that the nature of accusation was arising out of a business transaction.


PRECEDENTS

  • Mahindra Kumar v State of Himachal Pradesh

The case of Mahindra Kumar v.State of Himachal Pradesh (2020) was about a person, who was accused of raping a minor girl while she was returning from school in May, 2013. The case was registered under various sections of the Indian Penal Code. The statement of the girl was examined after her medical condition was confirmed. The police failed to arrest him.

The charge sheet was filed without his arrest. After non-execution, the court declared him a proclaimed offender under Section 82 of theCrPC. The Court relied on the Supreme Court's decisions in Lavesh v. State, which held that when an accused is declared a proclaimed offender, there is no question of granting him anticipatory bail.

The Court stated that Section 82 of the Criminal Procedure Code does not create any restriction on the filing for anticipatory bail. In Lavesh’s case, the Court had structured the pronouncement by the words, “normally.”

However, the court observed that in this case, the fear of being subjected to the COVID-19 pandemic, the man returned home and only came to know about FIR when he was already declared a proclaimed offender. He made a special case for bail. The Court stated that a balanced approach would encourage proclaimed offenders to surrender, speeding up the process.

  • Chandru v. State of Karnataka

The Karnataka High Court in 2020 observed that the informant of Social Forest Range, who was working as a Watcher, had found a dead body with a rope tied to its neck. He suspected that the body was killed and thrown away.

An FIR was then registered against the four accused persons. The charge sheet was then filed against them. The counsel for the petitioner states that he was earlier, under certain conditions, granted bail but could not appear before trial court.

The court noted that since the applicant has not complied with the conditions of the bail, Section 82 of the CrPC was invoked to issue a proclamation and the petition was dismissed.

  • State of Madhya Pradesh v. Pradeep Sharma

In this case, it was observed and held that if anyone is declared as an absconder in terms of Section 82 of the CrPC, he is not entitled to relief of anticipatory bail. Even in the case of a business transaction, there may be offences under the IPC more particularly under Sections 406, 420, 467, 468, etc.What is required to be considered is the nature of allegation and the accusation and not the nature of accusation arising out of a business transaction.

CONCLUSION

The Apex Court was hearing the appeal challenging an order of the High Curt which granted anticipatory bail to an accused while ignoring that the proceedings under Sections 82 and 83 of CrPC had been initiated by the lower court, dismissed the anticipatory bail on the ground that as the accused is absconding and the proceedings under Section 82/83 CrPC have been issued, the accused is not entitled to the anticipatory bail.


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