Santosh And Another vs State Of Up And Another on 15 March, 2024

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Allahabad High Court

Santosh And Another vs State Of Up And Another on 15 March, 2024

2. Heard Sri Ram Raj Pandey, learned counsel for the applicants, Sri Yogesh Kumar Mishra, learned counsel for the first informant, Sri Ajay Singh, learned A.G.A.-I for the State and perused the record.

3. This anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicants Santosh and Mahendra Verma, seeking anticipatory bail, in the event of arrest in Case Crime No. 586 of 2021, under Sections 386, 506 I.P.C., Police Station- Modinagar, District Ghaziabad.

4. The F.I.R. of the matter was lodged on 03.06.2021, under Sections 363, 366, 376, 506, 386 I.P.C. and 3/4 POCSO Act, by the victim against Nakul, Mahendra Verma and Smt. Santosh alleging therein that her date of birth is 11.5.2013. On 31.1.2021 Nakul allured her and enticed her away. At that time she was aged about 17 years and 8 months and was a minor. Nakul forcibly established sexual relationship with her regarding which her mother had made a complaint at the police station and on coming to know of it, Nakul and his father had apologized to her family members. After which Nakul, his father Mahendra Verma and his mother Smt. Santosh to save themselves from any legal action forcibly got her married with Nakul illegally on 01.2.2021 in her village Jattari, after which Nakul continuously sexually assaulted her and used to demand illegal money from her. She was being threatened by the accused persons that if she does not bring Rs.2 lakhs from her house then they would murder her only brother. Her father then gave Rs.1.5 lakhs to them in May 2021 after which they again started demanding Rs.1 lakh and started threatening her family members. On 14.5.2021 the accused persons brought her to her maternal house and assaulted her and threatened her. Her report be lodged and action be taken.

5. Learned counsel for the applicants argued that the applicants are mother-in-law and father-in-law respectively of the first informant/victim. It is argued that the applicants have been falsely implicated in the present case. It is argued that the present case is a case of matrimonial dispute in which the applicants have been falsely implicated as there was matrimonial discord between the first informant and her husband. It is argued that the investigating officer concluded the investigation and filed a charge sheet against the applicants under Sections 386, 506 I.P.C. after which the applicants filed an application for anticipatory bail being Criminal Misc. Anticipatory Bail U/S 438 Cr.P.C. No. 13254 of 2021 (Mahendra Verma and another vs. State of U.P. and another) which was got dismissed as not pressed on 25.07.2022. It is argued that the applicants and co-accused Nakul then filed a 482 Cr.P.C. petition being Criminal Misc. Application U/S 482 Cr.P.C. No. 5687 of 2022 (Mahendra Verma and 2 others vs. State of U.P. and another) which was also dismissed vide order dated 20.5.2022. It is argued that no offence is made out against the applicants. It is further argued that as per prosecution version the incident is of 31.1.2021 but the F.I.R. has been lodged after an unexplained delay of 04 months i.e. 03.6.2021. It is argued that the applicants have no criminal history as stated in para-37 of the affidavit. It is further argued that the applicants were initially granted anticipatory bail vide order dated 26.7.2021 passed in Criminal Misc. Anticipatory Bail U/S 438 Cr.P.C.No. 13254 of 2021 (Mahendra Verma and another vs. State of U.P. and another) which was connected with Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 13255 of 2021 (Nakul vs. State of U.P. and others) till submission of charge sheet or 90 days, whichever is earlier. It is argued that charge sheet in the matter has been filed and the applicants have been summoned by the trial court. Copy of the order sheet of the trial court has been placed before the Court which annexure no. S.A.-1 to the supplementary affidavit dated 26.2.2024. It is argued that thus the applicants be granted anticipatory bail.

6. Per contra, learned A.G.A. for the State and learned counsel for the first informant vehemently opposed the prayer for anticipatory bail and argued that the applicants are not entitled to grant of anticipatory bail since they are absconders. It is argued that the trial court took cognizance on the charge sheet and summoned them vide order dated 01.12.2021 after which bailable warrants were issued against them vide order dated 16.12.2021 and then on non-appearance of the accused, non bailable warrants were issued against them vide order dated 4.1.2022 after which non-bailable warrants and process under Section 82 Cr.P.C. have been issued against the three accused persons vide order dated 23.3.2022 which is continuing till date. It is argued that even challenge to the charge sheet and non-bailable warrants before the High Court in 482 Cr.P.C. petition stood unsuccessful and the said petition was dismissed vide order dated 20.5.2022 but still the accused persons/applicants are absconding. It is argued that the prayer for anticipatory bail be rejected.

7. After having heard learned counsels for the parties and perusing the records, the facts which are culled out in the present matter are as under:-

1. The F.I.R. was lodged against the applicants and co-accused Nakul by the victim/opposite party no. 2 on 03.6.2021 for the offences under Sections 363, 366, 376, 506, 386 I.P.C. and 3/4 POCSO Act.

2. The applicants and the co-accused Nakul filed a Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.13254 of 2021 (Mahendra Verma and another vs. State of U.P. and another) before this Court which was connected with Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 13255 of 2021 (Nakul vs. State of U.P. and others) in which vide a common order dated 26.7.2021 they were granted anticipatory bail till submission of charge sheet or 90 days, whichever is earlier. The charge sheet dated 11.11.2021 was filed against Nakul under Sections 363, 366, 376, 506, 386 I.P.C. and 3/4 POCSO Act and against the applicants under Sections 506, 386 I.P.C.

3. The court concerned vide order dated 01.12.2021 took cognizance upon the said charge sheet and summoned the accused persons.

4. On 16.12.2021 Vakalatnama on behalf of the accused persons including the applicants was filed before the trial court and an application for adjournment was filed through their lawyer in which the applicants sought 15 days time to appear before the trial court. The said application for adjournment was rejected by the trial court and bailable warrants of Rs.10,000/- were issued against them and they were summoned.

5. The accused persons despite the order dated 16.12.2021 did not appear before the trial court and thus vide order dated 4.1.2022 non bailable warrants were issued against them.

6. The accused persons continued to evade the process of law and then vide order dated 23.3.2022 non-bailable warrants and process under Section 82 Cr.P.C. were issued against them.

7. The applicants and the co-accused Nakul then filed a 482 Cr.P.C. petition being Criminal Misc. Application U/S 482 Cr.P.C. No. 5687 of 2022 (Mahendra Verma and 2 others vs. State of U.P. and another) before this Court challenging the charge sheet dated 11.11.2021 and the non bailable warrants dated 4.1.2022. The said petition was dismissed by a co-ordinate Bench of this Court vide order dated 20.5.2022.

8. Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.13254 of 2021 (Mahendra Verma and another vs. State of U.P. and another) was filed by the present applicants which was also got dismissed as not pressed by them vide order dated 25.7.2022. The present anticipatory bail application has now been filed with the prayers as aforesaid.

9. The situation thus which arises is that the applicants are well aware of the proceedings pending against them before the trial court which can be seen from the order dated 16.12.2021 of the trial court wherein Vakalatnama on their behalf along with an application for adjournment was filed which was rejected and bailable warrants were issued against them. Even then they did not appear before the trial court and then subsequently non bailable warrants and process under Section 82 Cr.P.C. were issued against them. Although the charge sheet and issuance of non bailable warrants were subjected to challenge before this Court in a 482 Cr.P.C. petition but the same was dismissed. Even thereafter the accused/applicants for the reasons best known to them have chosen not to appear before the trial court. They continued to abscond despite issuance of non bailable warrants and process under Section 82 Cr.P.C. against them.

10. Law with regards to anticipatory bail to an accused who is an absconder is trite.

11. In the case of Srikant Upadhyay & Ors. Versus State of Bihar & Anr. : Special Leave Petition (Crl.) No. 7940 of 2023, decided on March 14, 2024 : 2024 INSC 202 the Apex Court while dealing with an absconder and whether to grant him anticipatory bail held that at any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power for grant of anticipatory bail. It has been further held that person(s) continuously, defying orders and keep absconding is not entitled to such grant. It has been held as under:

"3. The question of seminal importance that arises for consideration can better be explained and understood by referring to a decision of this Court in Prem Shankar Prasad v. State of Bihar and Anr.; (2022) 14 SCC 516, which was rendered after referring to the earlier decisions of this Court in State of Madhya Pradesh v. Pradeep Sharma; (2014) 2 SCC 171 and Lavesh v. State (NCT of Delhi); (2012) 8 SCC 730. In Lavesh's case (supra), this Court held in paragraph 12 thus: -

"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". 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."

(Underline supplied)

4. In the decision in Pradeep Sharma's case (supra) this Court held that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 Cr.PC., he is not entitled to relief of anticipatory bail. After extracting Section 438, Cr.PC., it was further held therein thus:-

"The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty."

5. In Prem Shankar Prasad's case (supra), this Court took note of the fact that the respondent-accused was absconding and concealing himself to avoid service of warrant of arrest and the proceedings under Sections 82/83, Cr.PC have been initiated against him, set aside the order of the High Court granting anticipatory bail ignoring the proceedings under Sections 82/83, Cr.PC. 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.

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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 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 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.

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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 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 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.

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24. 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)

12. In view of the facts and the law as stated above on the issue, it is clear that the applicants are absconders and they are not entitled to anticipatory bail. The present anticipatory bail thus is rejected.

(Samit Gopal,J.) Order Date :- 15.3.2024 Naresh

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Allahabad High Court