Full Judgment Text
2024 INSC 202
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. of 2024
(@Special Leave Petition (Crl.) No.7940 of 2023)
Srikant Upadhyay & Ors.
…Appellants
Versus
State of Bihar & Anr.
…Respondents
J U D G M E N T
C.T. RAVIKUMAR, J.
Leave granted.
1. This appeal is directed against the order dated
04.04.2023 in CRLM No.67668 of 2022 passed by the High
Court of Judicature at Patna whereby and whereunder
the application for anticipatory bail filed by the appellant
was dismissed. The pre-arrest bail application was
moved in connection with FIR No.79 of 2020, registered
against him and co-accused at Govidganj, Police Station,
Signature Not Verified
Digitally signed by
VARSHA MENDIRATTA
Date: 2024.03.14
16:08:39 IST
Reason:
District East Champaran, Bihar, under Sections 341, 323,
Special Leave Petition (Crl.) 7940 of 2023 Page 1 of 33
354, 354 (B), 379, 504, 506 and 149 of the Indian Penal
Code, 1860 (for short, ‘IPC’) and Section 3/4 of
Prevention of Witch (Daain) Practices Act, 1999 (for
short, ‘the Daain Act’).
2. Heard, Mr. Basant R., learned Senior Counsel for
the appellants and Mr. Anshul Narayan, learned counsel
for the respondent-State.
3. The question of seminal importance that arises for
consideration can better be explained and understood
by referring to a decision of this Court in Prem Shankar
1
Prasad v. State of Bihar and Anr. , which was rendered
after referring to the earlier decisions of this Court in
2
State of Madhya Pradesh v. Pradeep Sharma and
3
Lavesh v. State (NCT of Delhi) . In Lavesh’s case
(supra), this Court held in paragraph 12 thus: -
“12. From these materials and information, it is clear
that the present appellant was not available for
1
(2022) 14 SCC 516
2
(2014) 2 SCC 171
3
(2012) 8 SCC 730
Special Leave Petition (Crl.) 7940 of 2023 Page 2 of 33
interrogation and investigation and 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.”
(Underline supplied)
4. In the decision in Pradeep Sharma’s case (supra)
this Court held that if anyone is declared as an
absconder/proclaimed offender in terms of Section 82
Cr.PC., he is not entitled to relief of anticipatory bail.
After extracting Section 438, Cr.PC., it was further held
therein thus:-
“The above provision makes it clear that the power
exercisable under Section 438 of the Code is
somewhat extraordinary in character and it is to be
exercised only in exceptional cases where it appears
that the person may be falsely implicated or where
there are reasonable grounds for holding that a
Special Leave Petition (Crl.) 7940 of 2023 Page 3 of 33
person accused of an offence is not likely to otherwise
misuse his liberty.”
5. In Prem Shankar Prasad’s case (supra), this Court
took note of the fact that the respondent-accused was
absconding and concealing himself to avoid service of
warrant of arrest and the proceedings under Sections
82/83, Cr.PC have been initiated against him, set aside
the order of the High Court granting anticipatory bail
ignoring the proceedings under Sections 82/83, Cr.PC.
Thus, it is obvious that the position of law, which was
being followed with alacrity, is that in cases where an
accused against whom non-bailable warrant is pending
and the process of proclamation under Sections 82/83,
Cr.PC is issued, is not entitled to the relief of anticipatory
bail.
6. The learned Senior Counsel appearing for the
appellants-accused would contend that the well-nigh
settled position of law in respect of pre-arrest bail as
above, is inapplicable in a case where a person
Special Leave Petition (Crl.) 7940 of 2023 Page 4 of 33
apprehending arrest has already filed an application
seeking anticipatory bail and it is pending sans any
interim orders and during its pendency if the Trial Court
issues proclamation under Section 82, Cr.PC. In short,
the proposition of law raised is – when an application
seeking anticipatory bail filed by a person
apprehending arrest is pending without any interim
protection, whether initiation of proceeding for issuance
of proclamation under Section 82, Cr. PC would make
that application worthy for further consideration on its
own merits? According to the learned Senior Counsel
appearing for the appellants even in such envisaged
circumstances and despite the pendency of non-bailable
warrant, the pending application for anticipatory bail is
liable to be considered on its own merits and at any rate,
on the aforesaid grounds the pending application of pre-
arrest bail could not be dismissed.
Special Leave Petition (Crl.) 7940 of 2023 Page 5 of 33
7. Per contra , the learned counsel appearing for the
State vehemently opposed the proposition(s) mooted on
behalf of the appellants. It is submitted that the issuance
of non-bailable warrant and initiation of the proceedings
under Section 82, Cr.PC are justiciable. Certainly, in the
absence of an interim protection, there can be no legal
trammel for issuing non-bailable warrant or for initiating
proceedings under Section 82, Cr. PC. merely because
of the pendency of an application for anticipatory bail
though more often than not, under such circumstances
subordinate Courts would wait for orders of the High
Court. It be so, existence of any such circumstance
would disentitle a person to press for pre-arrest bail.
Even a pending application is not maintainable, it is
contended.
8. It is thus obvious from the catena of decisions
dealing with bail that even while clarifying that arrest
should be the last option and it should be restricted to
Special Leave Petition (Crl.) 7940 of 2023 Page 6 of 33
cases where arrest is imperative in the facts and
circumstances of a case, the consistent view is that the
grant of anticipatory bail shall be restricted to
exceptional circumstances. In other words, the position
is that the power to grant anticipatory bail under Section
438, Cr. PC is an exceptional power and should be
exercised only in exceptional cases and not as a matter
of course. Its object is to ensure that a person should not
be harassed or humiliated in order to satisfy the grudge
or personal vendetta of the complainant. (See the
decision of this Court in HDFC Bank Ltd. v. J.J.Mannan
4
& Anr. ).
9. When a Court grants anticipatory bail what it
actually does is only to make an order that in the event of
arrest, the arrestee shall be released on bail, subject to
the terms and conditions. Taking note of the fact the said
power is to be exercised in exceptional circumstances
4
2010 (1) SCC 679
Special Leave Petition (Crl.) 7940 of 2023 Page 7 of 33
and that it may cause some hinderance to the normal flow
of investigation method when called upon to exercise the
power under Section 438, Cr.PC, courts must keep
reminded of the position that law aides only the abiding
and certainly not its resistant. By saying so, we mean that
a person, having subjected to investigation on a serious
offence and upon making out a case, is included in a
charge sheet or even after filing of a refer report, later,
in accordance with law, the Court issues a summons to a
person, he is bound to submit himself to the authority of
law. It only means that though he will still be at liberty,
rather, in his right, to take recourse to the legal remedies
available only in accordance with law, but not in its
defiance. We will dilate this discussion with reference
to the factual matrix of this case. However, we think that
before dealing with the same, a small deviation to have
a glance at the scope and application of the provisions
under Section 82, Cr.PC will not be inappropriate.
Special Leave Petition (Crl.) 7940 of 2023 Page 8 of 33
10. There can be little doubt with respect to the
position that the sine qua non for initiation of an action
under Section 82, Cr. PC is prior issuance of warrant of
arrest by the Court concerned. In that regard it is
relevant to refer to Section 82 (1), Cr. PC, which reads
thus: -
“82. Proclamation for person absconding . — (1) If
any Court has reason to believe (whether after taking
evidence or not) that any person against whom a
warrant has been issued by it has absconded or is
concealing himself so that such warrant cannot be
executed, such Court may publish a written
proclamation requiring him to appear at a specified
place and at a specified time not less than thirty days
from the date of publishing such proclamation.”
11. The use of expression ‘ reason to believe ’ employed
in Section 82 (1) Cr. PC would suggest that the Magistrate
concerned must be subjectively satisfied that the person
concerned has absconded or has concealed himself. In
the context of Section 82, Cr. PC, we will have to
understand the importance of the term ‘ absconded’ . Its
Special Leave Petition (Crl.) 7940 of 2023 Page 9 of 33
etymological and ordinary sense is that one who is
hiding himself or concealing himself and avoiding
arrest. Since the legality of the proceedings under
Section 82, Cr. PC is not under challenge, we need not
go into that question. As noticed above, the nub of the
contentions is that pending the application for pre-arrest
bail, proclamation under Section 82, Cr.P.C., should not
have been issued and at any rate, its issuance shall not
be a reason for declining to consider such application on
merits. Bearing in mind the position of law revealed
from the decisions referred to hereinbefore and the
positions of law, we will briefly refer to the factual
background of the case.
12. For considering the aforesaid proposition of law,
we think it absolutely unnecessary to deal with FIR No.
37 of 2018 dated 28.03.2018 filed against Respondent
No.2, Mr. Rajiv Kumar Upadhyay and four others, and
also FIR No.66 of 2018 registered against appellant No.4
Special Leave Petition (Crl.) 7940 of 2023 Page 10 of 33
(first accused) and four other family members of the
appellants. Civil Suit No.140 of 2019 filed against the
family members of the appellants for illegal
encroachment is also not to be considered as nothing
would turn out of it in relation to the question posed for
consideration. We may hasten to add that if the question
whether the appellants are entitled to anticipatory bail
survives, even after answering the aforementioned
question(s) posed for consideration, we may refer to the
relevant aspects in relation to the said cases.
13. As noticed hereinbefore, the appellants herein
moved the application for anticipatory bail in connection
with FIR No.79 of 2020 registered at Govindgunj Police
Station. It is a fact that the subject FIR was registered
pursuant to the directions of the learned Chief Judicial
Magistrate, East Champaran, Motihari on complaint
No.395 of 2020 filed by Respondent No.4 under Section
Special Leave Petition (Crl.) 7940 of 2023 Page 11 of 33
156 (3), Cr. PC. The allegations in the complaint are as
follows: -
On 22.02.2020, at about 8.00 am, when Jagmati
Kunwar, the grandmother of respondent No.4 reached in
front of the house of appellant No.2, Shashikant
Upadhyay, he said that she is the witch who made his
child sick and shall not be spared. Then, the appellants
and eight other family members gathered around her
th
and the 4 appellant caught hold of her hair and asked
the others to bring dung. Thereupon, accused Paritosh
Kumar brought dung and accused Rishu put dung into
the mouth of Jagmati Kunwar. Consequently, she
vomited and fell down. When respondent No.2/
complainant and other witnesses went for her help, the
second appellant Shashikant Upadhayay assaulted and
abused respondent No.2. Co-accused Paritosh Kumar
and Jishu Kumar tore the blouse of Kiran Devi and she
was disrobed. Another co-accused Soni Devi snatched a
Special Leave Petition (Crl.) 7940 of 2023 Page 12 of 33
gold chain from the complainant. The co-accused
Ravikant and appellant No.5 tore the clothes of Jagmati
Kunwar and made her half-naked.
14. Later, after completing the investigation, charge
sheet was filed on 08.08.2022 only for offences under
Sections 341, 323 and 504 IPC, that too only against
accused Lakhpati Kunwar (accused No.7). However, the
learned Trial Court, on perusal of the FIR, charge sheet
and case diary found that sufficient materials are
available in the case diary to proceed against the other
12 accused, including the appellants herein and
accordingly vide order dated 20.02.2021 took
cognizance of the offences under Sections 341, 323,
354B, IPC and Section 3/4 of the Daain Act and issued
summons to all accused including the appellants and
fixed 12.04.2022 as the date for their appearance. The
accused were absent on that day and hence on
12.04.2022, the Trial Court issued bailable warrants. On
Special Leave Petition (Crl.) 7940 of 2023 Page 13 of 33
25.05.2022, the accused, other than the appellants
herein, appeared and applied for regular bail before the
Trial Court and the Trial Court granted them regular bail.
Subsequently, the complainant/the second respondent
herein, applied for cancellation of bail granted to them
and as per the order dated 09.06.2022 the grantees of
bail were issued with show cause notices. Upon
receiving the notice for cancellation of bail, they
unsuccessfully approached the Sessions Court
challenging the order taking cognizance, in Criminal
Revision Petition No.94 of 2022. Pursuant to the dismissal
of the Revision Petition, the Trial Court posted the
application for cancellation of bail on different dates.
The fact is that despite such developments, the
appellants herein neither appeared before the Trial
Court nor sought for regular bail. In the meanwhile, the
appellants herein moved a bail-cum-surrender
application (described as such by them), before the Trial
Special Leave Petition (Crl.) 7940 of 2023 Page 14 of 33
Court. However, it was withdrawn on 23.08.2022 on the
fear of arrest. Thereupon, the Trial Court fixed the date
for appearance of the appellants on 30.08.2022. Before
the date fixed for their appearance, the appellants filed
application for anticipatory bail before the Sessions
Court and, thereafter on 06.09.2022, informed the Trial
Court about its listing before the Sessions Court on
27.09.2022 for final hearing. The Trial Court thereupon
posted the matter for appearance of the appellants to
11.10.2022. The anticipatory bail moved by the
appellants was dismissed on 27.09.2022 and thereupon,
the Trial Court took up the matter on 03.11.2022. Since
the appellants remained absent, the Trial Court issued
non-bailable warrants and listed the matter to 04.11.2022
for their production. Meanwhile, the appellants herein
approached the High Court by filing CRLM No.67668 of
2022 seeking anticipatory bail. It is to be noted that non-
bailable warrants were pending against them when they
Special Leave Petition (Crl.) 7940 of 2023 Page 15 of 33
moved the said application for anticipatory bail. On
04.12.2022, on behalf of the appellants, the Trial Court
was informed about the filing of anticipatory bail
application before the High Court. Consequently, the
matter was listed on 04.01.2023. On 04.01.2023, pursuant
to the non-appearance of the appellants despite the
earlier order for their appearance and the issuance of
non-bailable warrants, the Trial Court issued
proclamation under Section 82(1), Cr. PC. Later,
proceedings under Section 83, Cr.PC were also initiated.
On 15.03.2023, on behalf of the appellants it was prayed
to postpone the process under Section 82/83, Cr. PC.
However, the Trial Court proceeded to issue the process
under Section 83, Cr. PC, based on the proclamation
under Section 82(1) Cr.PC. On 04.04.2023, the
application for anticipatory bail filed by the appellants
was dismissed, obviously taking note of the proceedings
under Sections 82/83, Cr. PC and observing that owing
Special Leave Petition (Crl.) 7940 of 2023 Page 16 of 33
to such developments the application for pre-arrest bail
could not be maintained.
15. The core contention of the appellants is that the
rejection of the application for anticipatory bail without
considering the application on merits for the reason of
issuance of proclamation under Section 82, Cr. PC, is
unsustainable. It is the further contended that at no
stage, the appellants were “ evading the arrest ” or
“ absconding ” but were only exercising their legal right
to seek anticipatory bail. It is in the aforesaid
circumstances that the learned Senior Counsel
appearing for the appellants raised the contention that
when an application for anticipatory bail is pending, the
issuance of proclamation, following issuance of non-
bailable warrant could not be a reason for non-
considering the application for anticipatory bail on
merits.
Special Leave Petition (Crl.) 7940 of 2023 Page 17 of 33
16. For a proper consideration of the aforesaid
contentions and allied questions, it is only appropriate to
refer to certain provisions of law as also certain relevant
decisions. From the chronology of events narrated
hereinbefore, it is evident that for reasons best known to
the appellants, subsequent to the filing of the final report
in terms of the provisions under Section 173 (2), Cr.P.C
in FIR No.79/2020 and issuance of summons, issuance of
bailable warrants and issuance of non-bailable warrants;
pursuant to the failure of the appellants to appear before
the Court on the date fixed for their appearance based
on bailable warrants, they did not care to take any action
in accordance with law except moving applications for
bail. Same was the position even after the issuance of the
proclamation under Section 82, Cr.PC. As noted earlier,
in the case of similarly situated co-accused of the
appellants, they appeared and obtained regular bail
pursuant to the issuance of bailable warrants. Thus, a
Special Leave Petition (Crl.) 7940 of 2023 Page 18 of 33
scanning of the acts and omissions of the appellants, it
can only be seen that virtually, the appellants were
defying the authority of law and moving applications for
bail when they apprehended arrest owing to their non-
attendance and dis-obedience. It is in the context of the
aforesaid facts revealed from the materials on record
that the contention of the appellants that they were only
pursuing their right to file application for anticipatory
bail and, therefore, they were not either evading the
arrest or absconding, has to be appreciated.
17. Section 70 (2), Cr. PC mandates that every warrant
issued under Section 70 (1), Cr. PC shall remain in force
until it is cancelled by the Court which issued it, or until
it is executed. In this case, as noticed hereinbefore, the
bailable warrants and thereafter the non-bailable
warrants, were issued against the appellants. They were
neither cancelled by the Trial Court nor they were
executed. It is not their case that they have successfully
Special Leave Petition (Crl.) 7940 of 2023 Page 19 of 33
challenged them. Sections 19, 20, 21, 174 and 174 A, IPC
assume relevance in this context. They, insofar as
relevant read thus:
19. “Judge” . —The word “Judge” denotes not only
every person who is officially designated as a Judge,
but also every person
who is empowered by law to give, in any legal
proceeding, civil or criminal, a definitive judgment, or
a judgment which, if not appealed against, would be
definitive, or a judgment which, if confirmed by some
other authority, would be definitive, or who is one of a
body or persons, which body of persons is empowered
by law to give such a judgment.
20. “Court of Justice” .—The words “Court of Justice”
denote a Judge who is empowered by law to act
judicially alone, or a body of Judges which is
empowered by law to act judicially as a body, when
such Judge or body of Judges is acting judicially.
21. “Public servant” .—The words “public servant”
denote a person falling under any of the descriptions
hereinafter following, namely:—
…
[Third.—Every Judge including any person
empowered by law to discharge, whether by himself
Special Leave Petition (Crl.) 7940 of 2023 Page 20 of 33
or as a member of any body of persons, any
adjudicatory functions;]
174. Non-attendance in obedience to an order from
public servant .—Whoever, being legally bound to
attend in person or by an agent at a certain place and
time in obedience to a summons, notice, order, or
proclamation proceeding from any public servant
legally competent, as such public servant, to issue the
same,
intentionally omits to attend at that place or time, or
departs from the place where he is bound to attend
before the time at which it is lawful for him to depart,
shall be punished with simple imprisonment for a term
which may extend to one month, or with fine which
may extend to five hundred rupees, or with both,
or, if the summons, notice, order or proclamation is to
attend in person or by agent in a Court of Justice, with
simple imprisonment for a term which may extend to
six months, or with fine which may extend to one
thousand rupees, or with both.
174A .Non-appearance in response to a
proclamation under section 82 of Act 2 of 1974 .—
Whoever fails to appear at the specified place and the
specified time as required by a proclamation
published under sub-section (1) of section 82 of the
Code of Criminal Procedure, 1973 shall be punished
Special Leave Petition (Crl.) 7940 of 2023 Page 21 of 33
with imprisonment for a term which may extend to
three years or with fine or with both, and where a
declaration has been made under sub-section (4) of
that section pronouncing him as a proclaimed
offender, he shall be punished with imprisonment for
a term which may extend to seven years and shall also
be liable to fine.
18. Taking note of the aforesaid facts with respect to
the issuance of summons, warrants and subsequently the
proclamation, a conjoint reading of Sections 19, 20 and
21, IPC containing the terms “ Judge ”, “ Court of Justice ”
and “ Public Servant ” and Sections 174 and 174A, IPC can
make them liable even to face further proceedings.
Same is the position in case of non-attendance in
obedience to proclamation under Section 82, Cr. PC.
19. Bearing in mind the aforesaid provisions and
position, we will refer to certain relevant decisions. In
5
Savitaben Govindbhai Patel & Ors. v. State of Gujarat ,
the High Court of Gujarat observed thus: -
5
2004 SCC OnLine Guj 345
Special Leave Petition (Crl.) 7940 of 2023 Page 22 of 33
“9. Filing of an Anticipatory Bail Application by the
petitioners-accused through their advocate cannot be
said to be an appearance of the petitioners-accused in
a competent Court, so far as proceeding initiated
under Section 82/83 of the Code is concerned;
otherwise each absconding accused would try to
create shelter by filing an Anticipatory Bail Application
to avoid obligation to appear before the court and
raises the proceeding under Section 83 of the Code
claiming that he cannot be termed as an absconder in
the eye of law. Physical appearance before the Court
is most important, if relevant scheme of Sections 82
and 83, is read closely.”
(underline supplied)
20. We are in full agreement with the view taken by the
Gujarat High Court that filing of an anticipatory bail
through an advocate would not and could not be treated
as appearance before a court by a person against whom
such proceedings, as mentioned above are instituted.
The meaning of the term “absconded” has been dealt by
us hereinbefore. We found that its etymological and
original sense is that the accused is hiding himself. What
Special Leave Petition (Crl.) 7940 of 2023 Page 23 of 33
is required as proof for absconding is the evidence to the
effect that the person concerned was knowing that he
was wanted and also about pendency of warrant of
arrest. A detailed discussion is not warranted in this case
to understand that the appellants were actually
absconding. It is not in dispute that they were served
with the “summons”. The fact that bailable warrants
were issued against them on 12.04.2022 is also not
disputed, as the appellants themselves have produced
the order whereunder bailable warrants were issued
against them. We have already referred to Section 70
(2), Cr. PC which would reveal the position that once a
warrant is issued it would remain in force until it is
cancelled by the Court which issued it or until its
execution. There is no case for the appellants that either
of such events had occurred in this case to make the
warrants unenforceable. They also got no case that their
application was interfered with by a higher Court. That
Special Leave Petition (Crl.) 7940 of 2023 Page 24 of 33
apart, it is a fact that the appellants themselves on
23.08.2022, moved a bail-cum-surrender application
before the Trial Court but withdrew the same fearing
arrest. It is also relevant to note that in the case on hand
even while contending that they were before a Court, the
appellants got no case that in terms of the provisions
under Section 438 (1-B), Cr. PC an order for their
presence before the Court was ordered either suo motu
by the Court or on an application by the public
prosecutor. When that be the circumstance, the
appellants cannot be allowed to contend that they were
not hiding or concealing themselves from arrest or that
they were not knowing that they were wanted in a Court
of law.
21. To understand and consider another contention of
the appellants it is worthy to extract ground No.3 raised
by the appellants in SLP which reads thus:
“III. Because the Hon'ble High Court has failed to
appreciate that proclamation under section 82 Cr.P.C.
Special Leave Petition (Crl.) 7940 of 2023 Page 25 of 33
was issued on 04.01.2023 by the Ld. Trial Court and
thereafter process under section 83 Cr.P.C. have been
initiated on 15.03.2023 whereas the application for
anticipatory bail by the petitioner before the Hon'ble
High Court was filed in November, 2022, however, the
same was came for hearing on 04.04.2023. It is,
therefore, evident that when the petitioners preferred
filing of anticipatory bail before the Hon'ble High
Court then none of the petitioner was declared
absconder and process under section 82/83 Cr.P.C.
were not initiated against them.”
22. The above extracted ground taken by the appellant
constrains us to consider the question whether there
could be any bar on the Trial Court for proceeding under
Section 82 Cr.PC, merely because an anticipatory
application for bail has been filed or because such an
application was adjourned without passing any interim
order. We may hasten to add here that it is always
preferable to pass orders, either way, at the earliest. In
the case on hand, application for anticipatory bail was
filed by the appellants before the High Court in
Special Leave Petition (Crl.) 7940 of 2023 Page 26 of 33
November, 2022 and brought up for hearing on
04.04.2023, on which day it was dismissed as per the
impugned order. The very ground, extracted above,
would reveal that in the meanwhile, proclamation under
Section 82 Cr.PC, was issued on 04.01.2023 and
thereafter process under Section 83 Cr.PC was initiated
on 15.03.2023.
23. There can be no room for raising a contention that
when an application is filed for anticipatory bail, it cannot
be adjourned without passing an order of interim
protection. A bare perusal of Section 438 (1), Cr.PC,
would reveal that taking into consideration the factors
enumerated thereunder the Court may either reject the
application forthwith or issue an interim order for the
grant of anticipatory bail. The proviso thereunder would
reveal that if the High Court or, the Court of Sessions, as
the case may be, did not pass an interim order under this
Section or has rejected the application for grant of
Special Leave Petition (Crl.) 7940 of 2023 Page 27 of 33
anticipatory bail, it shall be open to an officer in-charge
of a police station to arrest the person concerned without
warrant, on the basis of the accusation apprehended in
such application. In view of the proviso under Section
438(1), Cr.PC, it cannot be contended that if, at the stage
of taking up the matter for consideration, the Court is not
rejecting the application, it is bound to pass an interim
order for the grant of anticipatory bail. In short, nothing
prevents the court from adjourning such an application
without passing an interim order. This question was
considered in detail by a Single Bench of the High Court
of Bombay, in the decision in Shrenik Jayantilal Jain and
Anr. v. State of Maharashtra Through EOW Unit II,
6
Mumbai and answered as above and we are in
agreement with the view that in such cases, there will be
no statutory inhibition for arrest. Hence, the appellants
cannot be heard to contend that the application for
6
[2014 SCC Online Bom 549]
Special Leave Petition (Crl.) 7940 of 2023 Page 28 of 33
anticipatory bail filed in November, 2022 could not have
been adjourned without passing interim order. At any
rate, the said application was rejected on 04.04.2023.
Pending the application for anticipatory bail, in the
absence of an interim protection, if a police officer can
arrest the accused concerned how can it be contented
that the court which issued summons on account of non-
obedience to comply with its order for appearance and
then issuing warrant of arrest cannot proceed further in
terms of the provisions under Section 82, Cr.PC, merely
because of the pendency of an application for
anticipatory bail. If the said position is accepted the
same would be adopted as a ruse to escape from the
impact and consequences of issuance of warrant for
arrest and also from the issuance of proclamation under
Section 82, Cr.PC, by filing successive applications for
anticipatory bail. In such circumstances, and in the
absence of any statutory prohibition and further, taking
Special Leave Petition (Crl.) 7940 of 2023 Page 29 of 33
note of the position of law which enables a police officer
to arrest the applicant for anticipatory bail if pending an
application for anticipatory bail the matter is adjourned
but no interim order was passed. We have no hesitation
to answer the question posed for consideration in the
negative. In other words, it is made clear that in the
absence of any interim order, pendency of an
application for anticipatory bail shall not bar the Trial
Court in issuing/proceeding with steps for proclamation
and in taking steps under Section 83, Cr.PC, in
accordance with law.
24. We have already held that the power to grant
anticipatory bail is an extraordinary power. Though in
many cases it was held that bail is said to be a rule, it
cannot, by any stretch of imagination, be said that
anticipatory bail is the rule. It cannot be the rule and the
question of its grant should be left to the cautious and
judicious discretion by the Court depending on the facts
Special Leave Petition (Crl.) 7940 of 2023 Page 30 of 33
and circumstances of each case. While called upon to
exercise the said power, the Court concerned has to be
very cautious as the grant of interim protection or
protection to the accused in serious cases may lead to
miscarriage of justice and may hamper the investigation
to a great extent as it may sometimes lead to tampering
or distraction of the evidence. We shall not be
understood to have held that the Court shall not pass an
interim protection pending consideration of such
application as the Section is destined to safeguard the
freedom of an individual against unwarranted arrest and
we say that such orders shall be passed in eminently fit
cases. At any rate, when warrant of arrest or
proclamation is issued, the applicant is not entitled to
invoke the extraordinary power. Certainly, this will not
deprive the power of the Court to grant pre-arrest bail in
extreme, exceptional cases in the interest of justice. But
Special Leave Petition (Crl.) 7940 of 2023 Page 31 of 33
then, person(s) continuously, defying orders and keep
absconding is not entitled to such grant.
25. The factual narration made hereinbefore would
reveal the consistent disobedience of the appellants to
comply with the orders of the trial Court. They failed to
appear before the Trial Court after the receipt of the
summons, and then after the issuance of bailable
warrants even when their co-accused, after the issuance
of bailable warrants, applied and obtained regular bail.
Though the appellants filed an application, which they
themselves described as “bail-cum-surrender
application” on 23.08.2022, they got it withdrawn on the
fear of being arrested. Even after the issuance of non-
bailable warrants on 03.11.2022 they did not care to
appear before the Trial Court and did not apply for
regular bail after its recalling. It is a fact that even after
coming to know about the proclamation under Section 82
Cr.PC., they did not take any steps to challenge the same
Special Leave Petition (Crl.) 7940 of 2023 Page 32 of 33
or to enter appearance before the Trial Court to avert the
consequences. Such conduct of the appellants in the
light of the aforesaid circumstances, leaves us with no
hesitation to hold that they are not entitled to seek the
benefit of pre-arrest bail.
26. The upshot of the discussion is that there is no
ground for interfering with the order of the High Court
rejecting the application for anticipatory bail rather not
considering application on merits. Since their action is
nothing short of defying the lawful orders of the Court
and attempting to delay the proceedings, this appeal
must fail. Consequently, it is dismissed.
……………………, J.
(C.T. Ravikumar)
……………………, J.
(Sanjay Kumar)
New Delhi;
March 14 , 2024
Special Leave Petition (Crl.) 7940 of 2023 Page 33 of 33