Assignment - 5

Absconding persons/proclaimed offenders

not entitled to anticipatory bail - Supreme
Court's recent judgment

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 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,
ABSCONDER AND ANTICIPATORY BAIL:
JUDGEMENT ANALYSIS -

In a case where the Patna High Court had granted anticipatory

bail to an absconder, the bench of MR Shah* and AS Bopanna,
JJ has set aside the said order and has held that if anyone is
declared as an absconder/proclaimed offender in terms of section
82 of Cr.PC, he is not entitled to relief of anticipatory bail.
In the present case, FIR was lodged against respondent no 2 – an
absconder, for the offences punishable under sections 406,
407, 468, 506 of the Penal Code, 1860.
The Trial Court dismissed the anticipatory bail application of the
respondent on merits as well as on the ground that as the accused
is absconding and even the proceedings under section 82/83
Cr.PC have been issued, the accused is not entitled to the
anticipatory bail.
However, despite the fact that it was specifically pointed to the
High Court that since the process of proclamation under section
82 & 83 Cr.PC have been issued, the accused should not be
allowed the privilege of anticipatory bail, ignoring the aforesaid
relevant aspect, the High Court allowed the said anticipatory
bail solely observing that the nature of accusation was arising out
of a business transaction.
Finding the High Court’s order erroneous, the Supreme Court
held that :

“Even in the case of a business transaction also there may be

offences under the IPC more particularly sections 406, 420,
467, 468, etc. What is required to be considered is the nature of
allegation and the accusation and not that the nature of
accusation is arising out of a business transaction.”
The Court noted that respondent No.2 – accused has been
charge¬sheeted for the offences punishable under sections 406
and 420, etc. and a charge-sheet has been filed in the court of
learned Magistrate Court.Hence, the order of the High Court
granting anticipatory bail to respondent No.2 – accused was held
to be un­sustainable and was set aside.

PRECEDENTS -

State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC

171 :

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.

Mahender Kumar v State of Himachal Pradesh , (2020)

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.