The Supreme Court ruled that an individual wouldn’t qualify for pre-arrest bail if there’s an outstanding non-bailable warrant and proclamation under Section 82(1) of the Cr.P.C. against them.
“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.”, the Bench Comprising Justices C.T. Ravikumar and Sanjay Kumar observed.
The above-mentioned observation in the Judgment written by Justice C.T Ravikumar was made while deciding a Criminal Appeal filed by the Appellant/Accused against the High Court’s Judgment. The High Court had refused to grant pre-arrest/anticipatory bail to the accused because a non-bailable warrant and a proclamation were issued against them for disobeying the Trial Court’s lawful orders and trying to obstruct the legal process.
The accused, dissatisfied with the denial of pre-arrest bail under Section 438 of the Cr.P.C., appealed the decision to the Supreme Court.
The crux of the matter revolves around the absence of the accused/appellant from the trial court proceedings despite the issuance of summons, a bailable warrant, a non-bailable warrant, and subsequently a proclamation under Sections 82/83 of the Cr.P.C. Despite being summoned, the accused failed to appear before the court, leading to the issuance of a bailable warrant followed by a non-bailable warrant to compel their attendance. However, even after the issuance of the non-bailable warrant failed to secure the accused’s presence, the court proceeded to declare the accused as a proclaimed offender/absconder by issuing a proclamation.
Top of FormAppearing before the Supreme Court, Senior Counsel R. Basant, representing the Appellant/accused, argued that the High Court erred in dismissing the bail application without considering its merits. He emphasized that the accused wasn’t evading arrest but simply asserting their legal right to seek anticipatory bail. Basant contended that if the anticipatory bail application had been filed before the issuance of the non-bailable warrant and proclamation under Sections 82/83 Cr.P.C., then the pending application should be assessed on its own merits. Merely because a non-bailable warrant and proclamation were pending against the accused, the application for pre-arrest bail shouldn’t have been summarily dismissed.
It’s important to clarify that when the accused approached the High Court for pre-arrest bail, a non-bailable warrant was already pending against them. However, the proclamation was issued during the pendency of the anticipatory bail application.
Thus, the fundamental question before the Supreme Court was whether the Accused/Appellant could seek anticipatory/pre-arrest bail while facing pending non-bailable warrants and a proclamation.
The Supreme Court answered in the negative, stating that an accused against whom non-bailable warrants and a proclamation have been issued isn’t entitled to seek 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.”, the Supreme Court said in Lavesh v. State (NCT of Delhi).
Mere Filing of Anticipatory Bail Application Cannot Be Said To Be Appearance By The Accused Under The Proclamation
In support of this decision, the court cited its judgment in the case of Prem Shankar Prasad v. State of Bihar and Anr., where it overturned the High Court’s decision to grant anticipatory bail to an accused who was actively avoiding arrest and service of warrants under Sections 82/83 of the Cr.PC.
Furthermore, the court referred to the Judgment of Lavesh v. State (NCT of Delhi), where anticipatory bail was denied to an accused facing pending warrants of arrest and a proclamation.
It’s notable that the accused had sought anticipatory bail in order to comply with the requirements of the proclamation under Section 82 of the Cr.P.C. However, disapproving of this tactic, the Supreme Court ruled that filing for anticipatory bail through legal representation couldn’t be considered as a formal appearance before the court by an individual who is subject to proclamation proceedings.
In line with this view, the Supreme Court upheld the judgment of the Gujarat High Court, which stated:
“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.”, the Gujarat High Court said in Savitaben Govindbhai Patel & Ors. v. State of Gujarat.
The Filing of an Anticipatory Bail Application Doesn’t Impede Proceedings Under Section 82 Cr.P.C.
The Accused specifically argued that the proceedings under Section 82 Cr.P.C. wouldn’t impact them since the application for anticipatory bail was submitted before the proclamation was issued. They contended that the High Court should have issued an interim order to shield them from arrest.
However, the Supreme Court dismissed this argument, stating that in the absence of an interim order, the pendency of an anticipatory bail application doesn’t prevent the Trial Court from proceeding with steps for proclamation and taking actions under Section 83, Cr.PC, as per the law.
Conclusion
“Even after the issuance of nonbailable 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 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.”, the Supreme Court concluded.
Given the aforementioned premise, the Supreme Court saw no reason to intervene with the High Court’s decision; consequently, the accused’s request for anticipatory bail was dismissed.