Supreme Court on Anticipatory Bail and Proclamation Under Section 82 CrPC: Srikant Upadhyay v. State of Bihar (2024)

Case Details

This appeal, Criminal Appeal No. 1552 of 2024, arose from the Judgment and Order dated 04.04.2023 of the High Court of Judicature at Patna in CRLM No.67668 of 2022. The Supreme Court bench comprising Justices C.T. Ravikumar and Sanjay Kumar delivered the judgment on 14 March 2024. The case involved an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, in the context of concurrent proceedings under Sections 82 and 83 CrPC for proclamation and attachment of property. The statutory setting included the Indian Penal Code, 1860, and the Prevention of Witch (Daain) Practices Act, 1999. The nature of the proceeding was a criminal appeal against the dismissal of an anticipatory bail application, where the core legal controversy centered on the interplay between the right to seek pre-arrest bail and the court's power to declare an accused an absconder.

Facts

The appellants were accused in FIR No.79 of 2020 registered at Govidganj Police Station, East Champaran, Bihar, for offences under Sections 341, 323, 354, 354(B), 379, 504, 506, and 149 IPC and Section 3/4 of the Prevention of Witch (Daain) Practices Act, 1999. The allegations involved assault, outraging modesty, and witch-hunting practices against the complainant's family. After investigation, a charge sheet was filed only against one accused, but the Trial Court, upon perusal of the case diary, took cognizance against all 12 accused, including the appellants, on 20.02.2021 and issued summons. The appellants failed to appear on the fixed date (12.04.2022), leading the Trial Court to issue bailable warrants. While other co-accused appeared and obtained regular bail, the appellants remained absent. On 23.08.2022, the appellants filed a "bail-cum-surrender application" before the Trial Court but withdrew it fearing arrest. Subsequently, the Trial Court issued non-bailable warrants on 03.11.2022. Meanwhile, the appellants had filed an application for anticipatory bail before the Sessions Court, which was dismissed on 27.09.2022. They then approached the High Court with an anticipatory bail application in November 2022. Pending this application before the High Court, and in light of their continued non-appearance, the Trial Court issued a proclamation under Section 82 CrPC on 04.01.2023 and later initiated process under Section 83 CrPC on 15.03.2023. The High Court ultimately dismissed the anticipatory bail application on 04.04.2023, prompting the appeal to the Supreme Court.

Issues

The seminal legal questions for consideration before the Supreme Court were: (1) Whether the pendency of an application for anticipatory bail, without an interim order of protection, bars the Trial Court from proceeding under Section 82 CrPC (issuance of proclamation for absconding) and Section 83 CrPC (attachment of property). (2) Whether the filing of an anticipatory bail application through an advocate can be treated as an appearance before the court for the purposes of proceedings under Sections 82/83 CrPC. (3) Whether the appellants, considering their conduct of consistent disobedience of court orders and evasion of process, were entitled to the extraordinary relief of pre-arrest bail under Section 438 CrPC.

Decision

The Supreme Court dismissed the appeal, upholding the High Court's order and clarifying several important principles of law governing anticipatory bail and proceedings against absconders. The Court's reasoning on each distinct issue is elaborated below.

1. Interplay between Pendency of Anticipatory Bail and Proceedings under Sections 82/83 CrPC

The Court exhaustively analyzed the statutory scheme and held unequivocally that the mere pendency of an anticipatory bail application, in the absence of a specific interim order granting protection from arrest, does not operate as a legal bar preventing the Trial Court from issuing or proceeding with a proclamation under Section 82 CrPC or taking consequent steps under Section 83 CrPC. The Court rooted this conclusion in a combined reading of Section 438(1) CrPC and its proviso. Section 438(1) provides that the court may, if it thinks fit, direct that in the event of arrest, the applicant be released on bail. The proviso explicitly states that where the High Court or Court of Session has not passed an interim order under this section or has rejected the application, it shall be open to the police to arrest the applicant without warrant. The Court reasoned that if the legislature expressly permits arrest by police in such a scenario, there can be no implied prohibition on the court, which has already issued a warrant due to the accused's non-appearance, from escalating the process by issuing a proclamation under Section 82. To hold otherwise, the Court warned, would allow the filing of successive anticipatory bail applications to be used as a "ruse" to indefinitely escape the consequences of non-bailable warrants and proclamations, thereby defying the authority of the court and obstructing the course of justice. The Court affirmed the view taken by the Bombay High Court in Shrenik Jayantilal Jain that there is no statutory inhibition on arrest or further process merely because a bail application is pending but not decided. Consequently, the Trial Court's actions in issuing the proclamation on 04.01.2023 and initiating Section 83 process on 15.03.2023, while the High Court application was pending, were perfectly valid and legal.

2. Filing of Anticipatory Bail Application is Not Equivalent to Personal Appearance

The Court decisively rejected the appellants' implied contention that by pursuing legal remedies for bail, they were not absconding. It approved the view of the Gujarat High Court in Savitaben Govindbhai Patel & Ors. v. State of Gujarat, which held that filing an anticipatory bail application through an advocate cannot be construed as an appearance before the court for the purposes of proceedings under Sections 82/83 CrPC. The Court emphasized that the scheme of Sections 82 and 83 CrPC requires the physical presence of the accused before the court. The term "absconded" in Section 82(1) denotes hiding or concealing oneself to avoid the execution of a warrant. The Court noted that proof of absconding involves evidence that the person knew they were wanted and that a warrant was pending. In this case, the appellants were undisputedly served with summons and were aware of the bailable and non-bailable warrants. Their act of filing bail applications, while simultaneously withdrawing a surrender application and never personally appearing before the Trial Court, demonstrated a conscious avoidance of the court's process. The Court stressed that the law aids the abiding, not the resistant. Therefore, the legal pursuit of bail cannot legitimize or excuse the simultaneous defiance of lawful orders to appear.

3. Conduct of the Accused is Paramount in Anticipatory Bail Jurisprudence

The Court provided a detailed restatement of the law on anticipatory bail, reaffirming that the power under Section 438 CrPC is "extraordinary in character" and must be exercised only in "exceptional cases." It referred to its earlier decisions in Lavesh v. State (NCT of Delhi) and State of Madhya Pradesh v. Pradeep Sharma, which established the principle that a person against whom a warrant has been issued and who is absconding or concealing himself to avoid its execution, and is declared a proclaimed offender under Section 82, is not entitled to anticipatory bail. The Court then meticulously applied this principle to the appellants' conduct. It chronicled a pattern of consistent disobedience: failure to appear despite summons; failure to appear even after bailable warrants were issued (while co-accused did appear and got bail); withdrawal of a surrender application due to fear of arrest; and failure to appear or challenge the proclamation under Section 82 after becoming aware of it. The Court held that such conduct, which amounted to defying the authority of law and the court, completely disentitled the appellants from seeking the discretionary, equitable relief of pre-arrest bail. The Court clarified that while the power to grant anticipatory bail in extreme cases is not completely denuded even after proclamation proceedings, a person who continuously defies orders and absconds is certainly not a deserving candidate for such relief. The Court also referenced Sections 174 and 174A IPC, which criminalize non-attendance in obedience to a proclamation, underscoring the seriousness with which the law views such disobedience.

In its final summation, the Court held that the High Court was correct in dismissing the anticipatory bail application. The appeal was consequently dismissed, affirming that the appellants' conduct was incompatible with the grant of the extraordinary remedy of anticipatory bail.

Quotes

On the bar under Section 82 CrPC: "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... 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."

On appearance through advocate: "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 (u/ss.82/83 of Cr.P.C.) are instituted."

On entitlement to anticipatory bail: "The facts would reveal the consistent disobedience of the appellants to comply with the orders of the trial Court... Considering the conduct of the appellants, there is no hesitation to hold that they are not entitled to seek the benefit of pre-arrest bail."