Indian Supreme Court's Landmark Judgment on Anticipatory Bail

 

Supreme Court's Landmark Judgment on Anticipatory Bail: A Detailed Analysis

In a significant ruling on March 14, 2024, the Supreme Court of India delivered a judgment in the case of Srikant Upadhyay & Ors. vs. State of Bihar & Anr., addressing critical legal issues surrounding anticipatory bail, the issuance of non-bailable warrants, and the consequences of absconding. The judgment, authored by Justice C.T. Ravikumar, provides a comprehensive analysis of the legal principles governing anticipatory bail under Section 438 of the Code of Criminal Procedure (Cr.PC) and the implications of non-compliance with court orders.

Background of the Case

The appellants, Srikant Upadhyay and others, were accused in FIR No. 79 of 2020, registered at Govindganj Police Station, East Champaran, Bihar. The charges included offenses under Sections 341, 323, 354, 354(B), 379, 504, 506, and 149 of the Indian Penal Code (IPC) and Section 3/4 of the Prevention of Witch (Drain) Practices Act, 1999. The appellants had filed an application for anticipatory bail, which was dismissed by the High Court of Patna on April 4, 2023. The dismissal was based on the fact that the appellants had failed to appear before the trial court despite the issuance of non-bailable warrants and a proclamation under Section 82 Cr.PC.

Legal Issues and Analysis

1. Anticipatory Bail and Absconding Accused

The central issue before the Supreme Court was whether an application for anticipatory bail could be considered on its merits when the accused had been declared an absconder and a proclamation under Section 82 Cr.PC had been issued. The Court referred to several precedents, including Prem Shankar Prasad v. State of Bihar, State of Madhya Pradesh v. Pradeep Sharma, and Lavesh v. State (NCT of Delhi), to reiterate the settled legal position:

"Normally, when the accused is 'absconding' and declared as a 'proclaimed offender', there is no question of granting anticipatory bail." (Lavesh v. State (NCT of Delhi))

The Court emphasized that the power to grant anticipatory bail under Section 438 Cr.PC is extraordinary and should be exercised only in exceptional cases. It is not a matter of right and should not be granted as a matter of course. The Court further clarified that when an accused is absconding or concealing himself to avoid arrest, he is not entitled to the relief of anticipatory bail.

2. Proclamation Under Section 82 Cr.PC

The Court delved into the legal framework surrounding the issuance of a proclamation under Section 82 Cr.PC. Section 82(1) Cr.PC states:

"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."

The Court held that the issuance of a proclamation under Section 82 Cr.PC is a serious step, and it is based on the subjective satisfaction of the Magistrate that the accused has absconded or is concealing himself. The term "absconded" was interpreted to mean that the accused is hiding or avoiding arrest. The Court noted that the legality of the proceedings under Section 82 Cr.PC was not under challenge in this case, but it emphasized that the issuance of such a proclamation has significant legal consequences.

3. Pending Anticipatory Bail Application and Issuance of Proclamation

The appellants argued that their application for anticipatory bail was pending before the High Court when the proclamation under Section 82 Cr.PC was issued. They contended that the issuance of the proclamation should not have been a reason for dismissing their application for anticipatory bail without considering it on its merits.

The Court rejected this contention, holding that the pendency of an anticipatory bail application does not bar the trial court from issuing a proclamation under Section 82 Cr.PC. The Court referred to the decision in Savitaben Govindbhai Patel & Ors. v. State of Gujarat, where the Gujarat High Court observed:

"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."

The Supreme Court agreed with this view, stating that the filing of an anticipatory bail application through an advocate does not amount to physical appearance before the court. The Court held that the issuance of a proclamation under Section 82 Cr.PC is justified even if an anticipatory bail application is pending, especially when the accused has failed to appear before the court despite the issuance of summons and warrants.

4. Non-Compliance with Court Orders

The Court took a stern view of the appellants' conduct, noting that they had consistently failed to comply with the orders of the trial court. The appellants had been served with summons, bailable warrants, and non-bailable warrants, but they did not appear before the court. Instead, they filed an application for anticipatory bail and later withdrew a "bail-cum-surrender application" fearing arrest. The Court observed:

"The appellants 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."

The Court held that such conduct amounted to defying the lawful orders of the court and attempting to delay the proceedings. The appellants' failure to appear before the court and their subsequent actions were seen as an attempt to evade the legal process, which disentitled them from seeking the benefit of anticipatory bail.

5. Legal Consequences of Non-Attendance

The Court also referred to Sections 174 and 174A of the IPC, which deal with non-attendance in obedience to an order from a public servant and non-appearance in response to a proclamation under Section 82 Cr.PC, respectively. Section 174A IPC provides:

"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 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."

The Court noted that the appellants' failure to appear before the court despite the issuance of a proclamation under Section 82 Cr.PC could expose them to further legal consequences under Section 174A IPC.

6. Extraordinary Nature of Anticipatory Bail

The Court reiterated that the power to grant anticipatory bail under Section 438 Cr.PC is extraordinary and should be exercised with caution. The Court observed:

"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 and circumstances of each case."

The Court emphasized that the grant of anticipatory bail should be restricted to exceptional cases where there is a genuine apprehension of arrest and harassment. The Court also noted that the grant of anticipatory bail in serious cases could lead to a miscarriage of justice and hamper the investigation.

Conclusion

The Supreme Court's judgment in Srikant Upadhyay & Ors. vs. State of Bihar & Anr. is a significant addition to the jurisprudence on anticipatory bail and the legal consequences of absconding. The Court has made it clear that the pendency of an anticipatory bail application does not bar the trial court from issuing a proclamation under Section 82 Cr.PC, especially when the accused has failed to appear before the court. The Court has also emphasized the extraordinary nature of anticipatory bail and the need for courts to exercise this power with caution.

The judgment serves as a reminder to accused persons that they must comply with court orders and appear before the court when summoned. Failure to do so can result in serious legal consequences, including the issuance of a proclamation under Section 82 Cr.PC and potential prosecution under Section 174A IPC. The Court's decision underscores the importance of respecting the legal process and the authority of the courts.

In dismissing the appeal, the Supreme Court upheld the High Court's decision to reject the appellants' application for anticipatory bail, noting that their conduct amounted to defying the lawful orders of the court. The judgment reaffirms the principle that the law aids only those who abide by it, and not those who seek to resist or evade it.