Allahabad High Court
Saurabh Singh@ Piyush vs State Of U.P. on 8 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:233469
Court No. - 73
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13309 of 2023
Applicant :- Saurabh Singh@ Piyush
Opposite Party :- State of U.P.
Counsel for Applicant :- Shyamu Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Nalin Kumar Srivastava,J.
1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
2. This application has been moved on behalf of the applicant Saurabh Singh@ Piyush are seeking anticipatory bail in Case Crime No. 611 of 2022, under Sections 147, 148, 149, 436, 427 IPC and Section 7 Criminal Law Amendment Act and Section 3/4 of Public Property Damage Act, Police Station- Cantt., District- Gorakhpur.
3. It has been submitted by the learned counsel for the applicants that applicant is innocent and he has apprehension of his arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. The investigation of the case has been completed and charge-sheet has been filed and cognizance has been taken by the Court concerned. Process under Sections 82 and 83 CrPC have also been issued against the applicant. It has been submitted that in case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.
4. The learned A.G.A. raised preliminary objection regarding maintainability of the present anticipatory bail application on the ground that the proclamation u/s 82/83 Cr.P.C. has been issued against the applicant, so his anticipatory bail application may not be entertained and no order in such application can be passed. Therefore, I would firstly advert to such objection regarding maintainability.
5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.
6. From the perusal of the record it reflects that the anticipatory bail application moved by the applicant before the Sessions Court concerned was rejected after hearing on 13.12.2022. Process under section 82 Cr.P.C. had already been issued against the applicant. Learned A.G.A. has submitted that as per the case diary, process under section 82 Cr.P.C. was issued against the applicant on 29.7.2023, which means that when the application for anticipatory bail was moved by the applicant before the Sessions Court, he was already a proclaimed offender. The present anticipatory bail application has been moved on 24.11.2023 before this Court. It reveals that during investigation the applicant did not cooperate with the Investigating Officer and this fact finds support from the record.
7. The ground taken by the learned counsel for the applicant for not filing anticipatory bail before this Court within time is that the mother of the applicant was suffering from cancer diecease and he was attending her at AIIMS, New Delhi and due to that reason the anticipatory bail application could not be filed.
8. The ground taken by the learned counsel for the applicant is not convincing.
9. The conduct of the applicant falls within the ambit of the law promulgated by Hon'ble Apex Court in Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine Supreme Court 955. In the facts of the case, charge-sheet was filed under Sections 406, 420 IPC against the accused and thus it was explicit that a prima facie case against the accused was found. From the record, it reveals that the arrest warrant was issued by the Magistrate against the accused and thereafter proceedings under Sections 82, 83 Cr.P.C. had been initiated pursuant to the order passed by the Magistrate. Only thereafter the accused moved an application before the trial court for anticipatory bail, which was rejected by the Sessions Court. However, subsequently anticipatory bail was granted to the aforesaid accused by the High Court and when the matter came before the Hon'ble Apex Court, it was observed like this-
"19. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that respondent No. 2 - accused is absconding and even the proceedings under sections 82-83 of Cr. P.C. have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to respondent No. 2 - accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under sections 82-83 of Cr. P.C. by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.
20. In the case of State of Madhya Pradesh v. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr. P.C., he is not entitled to relief of anticipatory bail."
10. The Hon'ble Apex Court in Lavesh Vs. State (NCT of Delhi)(2012) 8 SCC 730 has held that "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."
11. Further, the judgment passed in Lavesh (supra) was referred by the Hon'ble Apex Court in State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 Supreme Court Cases 171 and referring to paragraph 12 of the judgment of Lavesh (supra), in paragraph 16 of the said judgment, it was observed, relevant portion of which is as under :
"16.........It is clear from the above decision that if anyone is declared as an absconder / proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."
12. Hence, from the aforesaid case laws it is evident that as per normal rule, anticipatory bail cannot be granted to an accused who is absconding or concealing himself in order to avoid execution of the process of the Court and has been declared as proclaimed offender. Further, in view of the recent pronouncement of the Hon'ble Apex Court in State of Haryana vs. Dharamraj, 2023 SCC Online SC 1085, decided on 29.8.2023, wherein the legal position regarding maintainability of an application for grant of anticipatory bail to a proclaimed offender has been elucidated, the present application is not maintainable.
13. In view of that, I deem it not a fit case to grant anticipatory bail to the present applicant. Such a person, who does not cooperate with the investigation at all, is not entitled to get any relief from this Court by way of anticipatory bail.
14. The anticipatory bail application is, accordingly, rejected.
Order Date :- 8.12.2023
Fhd
