Kanhai vs The State (Nct Of Delhi) & Anr.

Court
Delhi High Court

$~96
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Date of Decision : 27.10.2026
# CNR No.DLHC010512312026
+ BAIL APPLN. 4532/2026, CRL.M.A.33419/2026
KANHAI .....Petitioner
Through: Mr. Suraj Prakash Sharma, Adv.
versus
THE STATE (NCT OF DELHI) & ANR. .....Respondent
Through: Mr. Utkarsh (APP)
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA

ORAL
SACHIN DATTA, J. ( )

(Exemption from filing certified copies of annx.)
CRL.M.A. 33420/2026

1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
BAIL APPLN. 4532/2026
3. The petitioner/applicant, via the present application filed under
Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter
“ BNSS ”) read with Section 438 of the Code of Criminal Procedure, 1973,
seeks anticipatory bail in FIR No. 2/2026, dated 17.02.2026, registered at
P.S. IGI Airport Metro (Delhi), under Sections 318(4)/ 3(5) of the Bharatiya
Nyaya Sanhita, 2023. The FIR was registered on the complaint of
respondent no. 2.
4. The petitioner’s/applicant’s previous application for anticipatory bail
was dismissed by the Ld. Additional Sessions Judge-04, Patiala House

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Courts, New Delhi, vide order dated 13.05.2026. The aforesaid order
recorded that despite a notice under Section 35(3) of the BNSS being served
twice on the applicant’s father-in-law, the applicant did not cooperate with
the investigation, and that, consequently, Non-Bailable Warrants (NBWs)
have been issued against him.
5. Learned counsel for the petitioner/applicant submits that the applicant
has been falsely implicated and that he is ready to join the investigation. He
further submits that notice under Section 35(3) of the BNSS should have
been served on him personally, instead of his father-in-law.
6. While opposing the current application, learned APP for the State
submits that the present application is thoroughly misconceived. He submits
that the petitioner/applicant has already been declared a Proclaimed
Offender (PO) by the trial Court. To that effect, during the course of
hearing, he has handed over a copy of the order dated 30.07.2026 passed by
the Ld. ACJM-01, Patiala House Courts, New Delhi. The same reads as
under:
“A separate statement of Process Server/SI Ashok Kumar, who
executed the process under Section 84 BNSS against the accused
Kanhai S/o Mintu Raj, R/o F-279, JJ Colony, Bawana, Delhi has been
recorded in which he affirmed the report Ex.D1 on oath. The copy of
the process was duly affixed at the main door of the premises of the
accused and the local residents were duly affirmed by way of munadi .
In view of his statement and report, the proclamation under Section
84 BNSS stands duly executed. As accused Kanhai S/o Mintu Raj,
R/o F-279, JJ Colony, Bawana, Delhi has failed to appear in the
court within the stipulated period of time, he is declared as
proclaimed person
.”
(emphasis supplied)
7. It is pertinent to note that the petitioner/applicant has urged the


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following ground in the present petition:


8. The assertion of the petitioner/applicant that he has already joined the
investigation is contrary to his assertion regarding non-service of Section
35(3) of the BNSS notice on him. It is untenable for the petitioner/applicant
to assert that no notice reached him, while simultaneously asserting, in
ground (m) of the present application, that he has already joined the
investigation.
9. Learned APP for the State, on instructions from the concerned
Investigating Officer (IO), who is present in the Court, vehemently refutes
the aforesaid assertion of the petitioner/applicant that he has joined the
investigation. He states that the petitioner/applicant has been remiss in this
regard despite passage of more than five (5) months after the order dated
13.05.2026, rejecting his previous anticipatory bail application, was passed.
10. Moreover, as noted above, the petitioner/applicant has since been
declared a PO on 30.07.2026. This factor has not been disclosed in the
present application. On the contrary, the applicant’s affidavit states that he
has never been declared a PO. The same is reproduced hereinbelow:



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11. The legal position is well settled that an accused who has been
declared an absconder/PO is not entitled to the relief of anticipatory bail. In
this regard, a reference may be made to the judgment of the Supreme Court
delivered in Lavesh v. State (NCT of Delhi) , (2012) 8 SCC 730 , wherein it
observed as under:
“ 12. From these materials and information, it is clear that the present
appellant was not available for interrogation and investigation
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.
”
(emphasis supplied)

12. The Supreme Court in Abhishek v. State of Maharashtra , (2022) 8
SCC 282 reiterated this legal position in the following terms:
“ 68. As regards the implication of proclamation having been issued
against the appellant, we have no hesitation in making it clear that
any person, who is declared as an “absconder” and remains out of
reach of the investigating agency and thereby stands directly at
conflict with law, ordinarily, deserves no concession or indulgence.
By way of reference, we may observe that in relation to the
indulgence of pre-arrest bail in terms of Section 438 CrPC, this
Court has repeatedly said that when an accused is absconding and is
declared as proclaimed offender, there is no question of giving him
the benefit of Section 438 CrPC.
What has been observed and said in
relation to Section 438 CrPC applies with more vigour to the
extraordinary jurisdiction of this Court under Article 136 of the
Constitution of India. The submission on behalf of the appellant for
consideration of his case because of application of stringent
provisions impinging his fundamental rights does not take away the
impact rights also cannot be justifiably made without the person
concerned himself adhering to and submitting to the process of law. ”
(emphasis supplied)

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13. Furthermore, in State of Haryana v. Dharamraj , (2023) 17 SCC 510 ,
the Supreme Court observed as under:
“ 17. The respondent, without first successfully assailing the order
declaring him as a proclaimed offender, could not have proceeded to
seek anticipatory bail.
Looking to the factual prism, we are clear that
the respondent’s application under Section 438 CrPC should not have
been entertained, as he was a proclaimed offender. ”
(emphasis supplied)

14. The petition is accordingly dismissed. Pending application also stands
disposed of.
15. It shall be open to the petitioner/applicant to surrender before the
learned trial Court and move an appropriate application for regular bail,
which shall be considered on its own merits and in accordance with law,
uninfluenced by the dismissal of the present bail application.

SACHIN DATTA, J
OCTOBER 27, 2026/ uk/vk

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