Jharkhand High Court
Abdul Quddus @ Md. Abdul Kuddus vs The State Of Jharkhand .... .... .... ... on 4 February, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No.2203 of 2024
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Abdul Quddus @ Md. Abdul Kuddus, S/o Azad Nagar, aged about
66 years, Ward No.20, Near Girls Idial Academy Hostel, P.O. + P.S.
Araria, Distt. Araria, Bihar-854311.
.... .... .... Petitioner
Versus
The State of Jharkhand .... .... .... Opposite Party
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioner : Mr. Shubhashis Rasik Soren, Advocate
: Ms. Shobha Gloria Lakra, Advocate
: Ms. Preeti Hembrom, Advocate
For the State : Ms. Anuradha Sahay, Addl.P.P.
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Order No.06 Dated- 04/02/2025
Heard the parties.
Apprehending his arrest, the petitioner has moved this Court for grant
of privileges of anticipatory bail in connection with Mirzachouki P.S. Case
No.05 of 2018 in connection with G.R. No.38 of 2018 registered under Section
379, 182 and 120B of the Indian Penal Code.
Learned counsel for the petitioner submits that the allegation against
the petitioner is that the petitioner is the owner of the truck bearing
registration no.BR11E8505 which was seized by police for illegal
transportation of boulders. It is submitted that the allegation against the
petitioner is false. It is next submitted that the proclamation under Section 82
Cr.P.C. has already been made against the petitioner and the Cr.M.P. No.230
of 2024 which was filed challenging the order by which the proclamation
under Section 82 of Cr.P.C. was issued invoking the jurisdiction of this Court
under Section 482 of Cr.P.C. has been dismissed vide order dated 19.02.2024
and the same has been attained finality as the said order of this Court has not
been challenged by the petitioner. Learned counsel for the petitioner next
relying upon the judgment of the Hon'ble Supreme Court of India in the case
of Srikant Upadhyay & Ors. vs. State of Bihar & Anr. reported in 2024 SCC
OnLine SC 282, paragraph-25 of which reads as under:-
"25. We have already held that the power to grant anticipatory
bail is an extraordinary power. 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. While called upon to exercise the said
power, the Court concerned has to be very cautious as the grant of
interim protection or protection to the accused in serious cases
may lead to miscarriage of justice and may hamper the
investigation to a great extent as it may sometimes lead to
tampering or distraction of the evidence. We shall not be
understood to have held that the Court shall not pass an interim
protection pending consideration of such application as the
Section is destined to safeguard the freedom of an individual
against unwarranted arrest and we say that such orders shall be
passed in eminently fit cases. At any rate, when warrant of arrest
or proclamation is issued, the applicant is not entitled to invoke
the extraordinary power. Certainly, this will not deprive the
power of the Court to grant pre-arrest bail in extreme, exceptional
cases in the interest of justice. But then, person(s) continuously,
defying orders and keep absconding is not entitled to such grant."
(Emphasis supplied)
Submits that when warrant of arrest or proclamation is issued, the
applicant is not entitled to invoke the extraordinary power for anticipatory
bail, but this will not deprive the power of pre-arrest bail in an extreme
exceptional case in the interest of justice and this is a case of extreme
exceptional circumstances because the petitioner is suffering from some
ailments and the symptoms thereof.
Learned counsel for the petitioner in this respect also relies upon the
judgment of the Hon'ble Supreme Court of India in the case of State of
Haryana vs. Dharamraj reported in 2023 SCC OnLine SC 1085, paragraph-
17 of which reads as under:-
"17. The respondent, without first successfully assailing the
order declaring him as a proclaimed offender, could not have
proceeded to seek anticipatory bail. Looking to the factual prism,
we are clear that the respondent's application under Section 438,
CrPC should not have been entertained, as he was a proclaimed
offender. We may note that in Lavesh v. State (NCT of Delhi),
(2012) 8 SCC 730, this Court was categoric against grant of
anticipatory bail to a proclaimed offender. In the same vein,
following Lavesh (supra) is the decision in State of Madhya
Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, where this Court
emphasised that a proclaimed offender would not be entitled to
anticipatory bail. Of course, in an exceptional and rare case, this
Court or the High Courts can consider a plea seeking anticipatory
bail, despite the applicant being a proclaimed offender, given that
the Supreme Court and High Courts are Constitutional Courts.
However, no exceptional situation arises in the case at hand.
Following Pradeep Sharma (supra), in Prem Shankar Prasad v.
State of Bihar, 2021 SCC OnLine SC 955, this Court was
unequivocal that the High Court therein erred in granting
anticipatory bail ignoring proceedings under Sections 82 and 83,
CrPC. In Abhishek v. State of Maharashtra, (2022) 8 SCC 282,
this Court concluded:
'68. As regards the implication of proclamation having
been issued against the appellant, we have no hesitation in
making it clear that any person, who is declared as an
"absconder" and remains out of reach of the investigating
agency and thereby stands directly at conflict with law,
ordinarily, deserves no concession or indulgence. By way
of reference, we may observe that in relation to the
indulgence of pre-arrest bail in terms of Section 438 CrPC,
this Court has repeatedly said that when an accused is
absconding and is declared as proclaimed offender, there is
no question of giving him the benefit of Section 438 CrPC.
[For example, Prem Shankar Prasad v. State of Bihar,
(2022) 14 SCC 516 : 2021 SCC OnLine SC 955] ...'"
It is next submitted that the co-accused persons have been given the
privilege of anticipatory bail vide order dated 27.03.2019 in A.B.A. No.1456
of 2019, order dated 26.11.2019 in A.B.A. No.8133 of 2019 and order dated
12.03.2024 in A.B.A. No.709 of 2024 respectively. It is further submitted that
the petitioner is ready and willing to cooperate with the investigation of the
case. Hence, it is submitted that the petitioner be given the privileges of
anticipatory bail.
Learned Addl. P.P. appearing for the State on the other hand
vehemently opposes the prayer for grant of anticipatory bail and submits
that the case of the co-accused persons who have been given the privileges of
anticipatory bail stands at different footing than that of the petitioner as
against them, no proclamation under section 82 of Cr.P.C. was issued for not
cooperating with the investigation of the case. Drawing attention of the
Court to the counter affidavit filed by the it is submitted that that though
notice under Section 41A of the Cr.P.C. was sent twice to the petitioner, but
the petitioner neither appeared before the I.O. nor replied to the notice and
though the police raided the house of the petitioner for his arrest; he was
found not present at his house and only after the same, the proclamation
under Section 82 of Cr.P.C. has been issued. It is next submitted that this is
not an extreme exceptional case where pre-arrest bail can be granted even
after issue of the proclamation under section 82 of Cr.P.C., hence, it is
submitted that the petitioner ought not to be given the privileges of
anticipatory bail.
Having heard the submissions made at the bar and after carefully
going through the materials in the record, it is pertinent to mention here that
as has been observed by the Hon'ble Supreme Court of India in para-25 of
case of Srikant Upadhyay & Ors. vs. State of Bihar & Anr.(Supra) that it
cannot be said that anticipatory bail is the rule. But, it is an extraordinary
power, the general rule is that after a proclamation is issued against an
accused person of the case, such accused persons is not entitled to invoke the
extraordinary power of pre-arrest bail and only in extreme exceptional cases
in the interest of justice, such power can be exercised by the High Court.
Now coming to the facts of the case, there is direct and specific
allegation against the petitioner of being involved in criminal conspiracy
with the co-accused persons involved in commission of theft and giving false
information with intent to cause public servant to use his lawful power to
injured any person.
Under such circumstances, this court is of the considered view that this
is not an extreme exceptional case where in the interest of justice despite the
proclamation issued against the petitioner, he is to be given the privilege of
anticipatory bail.
Accordingly, the prayer for grant of privileges of anticipatory bail of
the above-named petitioner is rejected.
(Anil Kumar Choudhary, J.)
AFR-Abhiraj/
