Delhi HC Denies Anticipatory Bail To Proclaimed Offender Who Swore He Had Never Been Declared One

The petitioner sought anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with Section 438 of the Code of Criminal Procedure, 1973, in an FIR alleging offences under Sections 318(4) and 3(5) of the Bharatiya Nyaya Sanhita, 2023.

His earlier anticipatory-bail application had been dismissed after the Sessions Court noted his non-cooperation with the investigation and the issuance of non-bailable warrants.

The petitioner claimed he had been falsely implicated, was willing to join the investigation, and had not personally received a notice under Section 35(3) BNSS.

The State produced a subsequent trial-court order declaring him a proclaimed person under Section 84 BNSS; the petitioner had not disclosed that order and had stated in his affidavit that he had never been declared a proclaimed offender.

Section 35(3) BNSS concerns notice to a person against whom arrest is not immediately required, while Section 84 BNSS provides for proclamation when a person against whom a warrant has been issued is absconding or concealing himself.

In Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, the Supreme Court held that an accused who is absconding and declared a proclaimed offender is ordinarily not entitled to anticipatory bail.

Abhishek v. State of Maharashtra, (2022) 8 SCC 282, reiterated that a proclaimed absconder ordinarily does not merit the concession of pre-arrest bail.

In State of Haryana v. Dharamraj, (2023) 17 SCC 510, the Court held that a person must first successfully assail the order declaring him a proclaimed offender before seeking anticipatory bail.

The Court considered the petitioner’s claim that he had joined the investigation inconsistent with his contention that the Section 35(3) notice had not reached him, and recorded the State’s denial that he had cooperated.

More decisively, the petitioner had been declared a proclaimed person under Section 84 BNSS, had not disclosed that order, and had asserted in his affidavit that no such declaration had been made.

Applying the Supreme Court authorities, the Court held that his proclaimed-person status precluded the grant of anticipatory bail; his application could not succeed without first challenging that status.

It left open the petitioner’s right to surrender before the trial court and seek regular bail, to be considered on its own merits and in accordance with law, uninfluenced by the dismissal.