Gujarat High Court
Odedra Pratap Muru vs State Of Gujarat on 4 August, 2025
NEUTRAL CITATION
R/CR.MA/11563/2025 ORDER DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11563 of 2025
(FOR ANTICIPATORY BAIL)
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ODEDRA PRATAP MURU
Versus
STATE OF GUJARAT
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Appearance:
MS TANAVEER K LOLADIA(9994) for the Applicant(s) No. 1
MS JYOTI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 04/08/2025
ORAL ORDER
1. By filing instant applications under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicants have prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. I-3 of 2017 registered with ATS Crime Police Station for the alleged offences as mentioned in the FIR.
2. Heard learned advocate, Ms. Tanaveer Loladia for the applicant and learned APP Ms. Jyoti Bhatt for the respondent - State of Gujarat.
3. Learned advocate, Ms. Loladia has referred to FIR and submitted that the applicant is falsely involved in the commission of crime. She submitted that in fact, in the said FIR, the wife of the applicant was shown witness and at that relevant point of time, the applicant was stationed at UK and he was not available in India, therefore, there is no question of committing any offence as alleged, which clearly Page 1 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined goes on to show that the applicant is wrongly arraigned as accused in the present FIR. She submitted that after registration of the FIR, the investigation was put into motion and on conclusion of it, the chargesheet qua accused no.17 has been submitted before the court concerned, wherein the applicant is shown as absconding accused along with other accused persons. She, however, submitted that from the chargesheet papers filed qua other arrested accused persons, nothing is fruitful found against the applicant, therefore, the applicant may be granted anticipatory bail.
4. Learned advocate submitted that in fact, the against the applicant, in the year 2014, an FIR being C.R. No.I-119/2014 has been registered with Kamalabaug Police Station, Porbandar, however in connection with the said FIR, the applicant has already been granted bail by this Hon'ble Court. She submitted that in fact, there is no direct or indirect involvement of the applicant in the present commission of crime and there is no material available on record, which connect the applicant with the commission of crime and in fact, the applicant has not received any monetary gain from the said transaction. She submitted that the applicant is arraigned as accused in the present offence only on the basis of one mobile number alleging that the said mobile number is being used by the applicant. She, however, submitted that in fact, there are other accused persons, who are stationed at UK and are still absconding, they might have used the said mobile number but only on the Page 2 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined ground of assumption and presumption, the applicant is arraigned as accused and is shown absconding accused while filing chargesheet against other accused persons. She submitted that considering the allegations leveled against the applicant, custodial interrogation at this stage is not necessary and he will keep himself available during the course of investigation, trial also and will not flee from justice. She on instructions submitted that he is ready and willing to abide by all the conditions including imposition of conditions while releasing the applicant on anticipatory bail. It is, therefore urged that considering the above facts, the applicants may be granted anticipatory bail.
5. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He referred to the contents of the FIR and submitted that specific name and role is attributed to the present applicant in the body of FIR, which clearly goes on to show the involvement of the applicant. He submitted that after registration of the FIR, the investigation was commenced and during the course of investigation, other accused persons have been arrested and, thereafter, they are being chargesheeted. He submitted that yet the applicant and other accused persons, who are stationed at UK, are still absconding and evading their arrest. He submitted that as stated above, the chargesheet has been filed and if the Hon'ble Court would make cursory glance upon those set of documents, in that event, it is Page 3 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined found out the direct involvement of the applicant in the commission of crime in connivance with other accused persons.
6. Learned APP has drawn attention towards the order dated 04.12.2015 passed by this Hon'ble Court in Criminal Misc. Application No.23078/2015, whereby the applicant has been granted regular bail in connection with the offence registered the year 2014. He submitted that in fact, in connection with the said offence, the statements of the applicant have been recorded, copies of which are provided during the course of hearing. He submitted that if the Hon'ble Court would make cursory glance upon the said statements, in that event, it is found out that same modus operandi has been adopted by the applicant in connivance with other accused to execute the crime. He submitted that while passing said order, one of the conditions imposed upon the applicant was to surrender his passport, however, he has not complied with the said condition and on the contrary, he fled away from India. He submitted that in fact, at the time of commission of crime, the applicant was very much available in India and the accused have arranged meeting as to how the crime is to be executed and the said fact is supported by the documents collected during the course of investigation. He submitted that in fact, after registration of the offence, the statements of the co-accused, who have been apprehended by the police, have been recorded, which clearly goes on to show the presence and the involvement of the applicant in the commission of crime. He submitted that in fact, Page 4 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined to secure the presence of the applicant in connection with the offence of the year 2014, warrant has been issued upon the applicant by the concerned court. It is, therefore, urged that the present applications may be rejected as there is prima facie case made out against the applicants.
7. Having heard the learned advocates appearing for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicants including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicants to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicants by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.
8. It is required to be noted that normal procedure prescribed for curtailing the right to life & liberty, is that the investigating officer can arrest the accused even without warrant. No doubt this Court has extraordinary power to protect an Page 5 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined innocent person. However, this power has to be exercised by the Courts with due circumspection.
9. It is well settled that an application preferred for anticipatory bail is an exceptional remedy to be granted in exception cases. The parameters and considerations governing the grant of anticipatory bail have been explained by the Hon'ble Supreme Court in number of cases. At this stage, I would like to rely upon the law laid down by the Hon'ble Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187,
(ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198, wherein the Hon'ble Supreme Court has held held as follows:
"The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest.
Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory Page 6 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that Page 7 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined exceptional circumstances exist to resort to that extraordinary remedy".
Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".
10. In case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181, the Hon'ble Apex Court in Paragraph No.21, observed as under:-
"21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
11. At this stage, it is required to be noted that as this application has been preferred under the provisions of Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of anticipatory bail, I court would like to refer the decision of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.,, Page 8 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined reported in (2011) 1 SCC 694, more particularly Paragraph Nos.14 & 112, which read as under :-
"14. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age- old principle that an individual is presumed to be innocent till he is found guilty by the court.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; the antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; The possibility of the applicant to flee from justice; The possibility of the accused's likelihood to repeat similar or the other offences. Whereas the accusation have been made only with the object to injuring or humiliating the applicant by arresting him or her. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case."
12. Now coming back to the facts of the case, it is found out that an FIR has been lodged in the year 2017, which specific name of the applicant is mentioned at Sr. No.5, alleging inter alia that the Page 9 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined accused have in connivance with each other have prepared bogus Visa of Indonesia in the name of victims and asked them to go there as all arrangements have been made like air tickets, hotel etc. but no such arrangement was made and on the contrary, it was also found out that the Visa is bogus and thus after having realized that the accused have cheated them, the aforesaid FIR has been lodged narrating all facts of the case including the role played by each accused at the time of commission of crime.
13. It is found out from the record that after registration of the FIR, the investigation was put into motion and, thereafter during the course of investigation, some accused have been arrested and against them, the chargesheet has been filed and so far as the applicant and other accused persons, they are shown absconding accused in the said chargesheet and till date, they are evading their arrest at the hands of the concerned Investigating Officer. I have also considered the statements of the applicant recorded in connection with the offence of the year 2014 as well as the statements of the co-accused recorded in connection with the present FIR and found that same modus operandi has been adopted by the accused in connivance with each other just to dupe the person and thereby they have collected huge amount from them. It is also found out from the statements of the co-accused that at the time of commission of crime, the applicant was very much available in India and he had attended the meeting with other accused persons.
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14. At this stage, it is required to be noted that the applicant is having antecedent of the year 2014 and in connection with the same, the applicant was arrested and, thereafter, released on bail by this Hon'ble Court on certain terms and conditions and as per one of the conditions of the said bail order, the applicant has to surrender his passport before the court concerned but it seems that instead of surrendering his passport with the court concerned, he fled away at UK with the help of it. Not only that, despite having there at UK, he has indulged into another offence i.e. the present offence and his presence and the role is clearly spelt out from the investigation papers, therefore, it cannot be said that the applicant was not available at the time of incident and he is not involved therein but on the contrary, records suggest his active participation in the commission of crime.
15. One of the contentions is raised by learned APP with regard to issuance of warrant under Section 70 of the CrPC by the court concerned to secure his presence in connection with the offence of the year 2014 but despite the issuance of the said warrant, the applicant is enjoying at UK instead of appearing in trial. At this stage, I would like to place reliance upon the decision of the Hon'ble Supreme Court in case of Srikant Upadhyay Vs. State of Bihar, reported in 2014 (0) AIR(SC) 1600, wherein the Hon'ble Supreme Court has dealt with similar issue. In the said decision, the applicant concerned had approached the Hon'ble Supreme Court Page 11 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined against the order rejecting an application for anticipatory bail, wherein also, the proceedings were initiated under Section 70 of the CrPC as also under Section 82 of the CrPC and considering the facts of the case, the Hon'ble Supreme Court dismissed the said SLP. In the said decision, the Hon'ble Supreme Court has observed in Paragraph Nos.8 to 11 as under, "8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under Section 438, Cr. PC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679.
9. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hinderance to the normal flow of investigation method when called upon to exercise the power under Section 438, Cr.PC, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. By saying so, we mean that a person, having subjected to investigation Page 12 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined on a serious offence and upon making out a case, is included in a charge sheet or even after filing of a refer report, later, in accordance with law, the Court issues a summons to a person, he is bound to submit himself to the authority of law. It only means that though he will still be at liberty, rather, in his right, to take recourse to the legal remedies available only in accordance with law, but not in its defiance. We will dilate this discussion with reference to the factual matrix of this case. However, we think that before dealing with the same, a small deviation to have a glance at the scope and application of the provisions under Section 82, Cr.PC will not be inappropriate.
10. There can be little doubt with respect to the position that the sine qua non for initiation of an action under Section 82, Cr. PC is prior issuance of warrant of arrest by the Court concerned. In that regard it is relevant to refer to Section 82 (1), Cr. PC, which reads thus: -
"82. Proclamation for person absconding.
(1) 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."
11. The use of expression 'reason to believe' employed in Section 82 (1) Cr. PC would suggest that the Magistrate concerned must be subjectively satisfied that the person concerned has absconded or has concealed himself. In the context of Section 82, Cr. PC, we will have to understand the importance of the term 'absconded'. Its etymological and Page 13 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined ordinary sense is that one who is hiding himself or concealing himself and avoiding arrest. Since the legality of the proceedings under Section 82, Cr. PC is not under challenge, we need not go into that question. As noticed above, the nub of the contentions is that pending the application for pre- arrest bail, proclamation under Section 82, Cr.P.C., should not have been issued and at any rate, its issuance shall not be a reason for declining to consider such application on merits. Bearing in mind the position of law revealed from the decisions referred to hereinbefore and the positions of law, we will briefly refer to the factual background of the case."
16. In the aforesaid decision, the Hon'ble Supreme Court has observed in Paragraph Nos.17 to 21 as under, "17. Section 70 (2), Cr. PC mandates that every warrant issued under Section 70 (1), Cr. PC shall remain in force until it is cancelled by the Court which issued it, or until it is executed. In this case, as noticed hereinbefore, the bailable warrants and thereafter the non-bailable warrants, were issued against the appellants. They were neither cancelled by the Trial Court nor they were executed. It is not their case that they have successfully challenged them. Sections 19, 20, 21, 174 and 174 A, IPC assume relevance in this context. They, insofar as relevant read thus:
19. "Judge". The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other Page 14 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined authority, would be definitive, or who is one of a body or persons, which body of persons is empowered by law to give such a judgment.
20. "Court of Justice".The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.
21. "Public servant".The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:
[Third. Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;]
174. Non-attendance in obedience to an order from public servant.Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.Page 15 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025
NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974. 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.
18. Taking note of the aforesaid facts with respect to the issuance of summons, warrants and subsequently the proclamation, a conjoint reading of Sections 19, 20 and 21, IPC containing the terms "Judge", "Court of Justice"
and "Public Servant" and Sections 174 and 174A, IPC can make them liable even to face further proceedings. Same is the position in case of non-attendance in obedience to proclamation under Section 82, Cr. PC.
19. Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel & Ors. v. State of Gujarat, 2004 SCC OnLine Guj 345 the High Court of Gujarat observed thus: -
"9. 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 Page 16 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined 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."
(underline supplied)
20. 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, as mentioned above are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves Page 17 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined on 23.08.2022, moved a bail-cum-
surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. PC an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law.
21. To understand and consider another contention of the appellants it is worthy to extract ground No.3 raised by the appellants in SLP which reads thus:
"III. Because the Hon'ble High Court has failed to appreciate that proclamation under section 82 Cr.P.C. was issued on 04.01.2023 by the Ld. Trial Court and thereafter process under section 83 Cr.P.C. have been initiated on 15.03.2023 whereas the application for anticipatory bail by the petitioner before the Hon'ble High Court was filed in November, 2022, however, the same was came for hearing on 04.04.2023. It is, therefore, evident that when the petitioners preferred filing of anticipatory bail before the Hon'ble High Court then none of the petitioner was declared absconder and process under section 82/83 Cr.P.C. were not initiated against them."
17. It is to be noted that in number of cases, the Hon'ble Supreme Court has held that the power to grant anticipatory bail is an extraordinary power Page 18 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined and though 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 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 and the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases, which 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. It is also required to be noted that in view of aforesaid decision as well as other decisions of the Hon'ble Supreme Court, as and when warrant of arrest is issued, in that event, the applicant is not entitled to invoke the extraordinary power and it is not that this will not deprive the power of the Court to grant pre- arrest bail in extreme, exceptional cases in the interest of justice but here in the present case, as stated above, the applicant is continuously defying orders and keeping himself absconding, therefore, he is not entitled to grant anticipatory bail. The factual narration made hereinbefore would reveal the consistent disobedience of the appellant to comply with the order of the trial Court because he failed to appear before the Court concerned after the issuance of the summons. Such conduct of the Page 19 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined applicant in the light of the aforesaid circumstances, leaves no hesitation for me to hold he is not entitled to seek the benefit of pre- arrest bail.
18. The Hon'ble Supreme Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. & Anr., reported in 2022 SCC OnLine SC 1529 held that merely because custodial interrogation was not required by itself could not be a ground to grant anticipatory bail. The first and the foremost thing the Court hearing the anticipatory bail application is to consider is the prima facie case against the accused. The relevant extract of the judgment is reproduced hereinbelow:-
"It may be true, as pointed out by learned counsel appearing for Respondent No.1, that charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation. Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed Page 20 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."
19. Thus while taking into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre (supra) as also ratio laid down in other decisions as stated above, I have gone through the contents of the FIR, which is placed on record and also considered the affidavit of the investigating officer filed before the learned Judge concerned opposing the bail application preferred by the applicants. Upon going through the contents of the FIR, it appears that prima facie case is made out against the applicants and material collected so far suggests the Page 21 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025 NEUTRAL CITATION R/CR.MA/11563/2025 ORDER DATED: 04/08/2025 undefined involvement of the applicants in the commission of crime.
20. For the foregoing reasons, having regard to facts and circumstances, peculiar to the instant case, as have been analyzed hereinabove, the applicants have failed to make out a special case for exercise of power to grant bail and considering the facts and parameters, necessary to be considered for adjudication of anticipatory bail, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 482 of the BNSS to grant anticipatory bail. More so, investigation is still going on in the present case. It is settled proposition of law that power exercisable under Section 482 BNSS, is somewhat discretionary in character and it is to be exercised with caution in exceptional cases. Hence, the present applications seeking for anticipatory bail are hereby rejected.
21. Needless to say that observations and findings made hereinabove are limited to the decision of these pre-arrest bail applications, and shall not influence any other proceedings arise from impugned FIR.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 22 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 22:56:23 IST 2025