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Showing contexts for: proclamation crpc in Suresh Babu vs State Of U.P. And Another on 16 July, 2022Matching Fragments
5. As per second supplementary affidavit the Annexure S.A.-1 is anticipatory bail application of the present applicant filed before the sessions court u/s 438 Cr.P.C. on 16.3.2022 and such application has been rejected on 5.4.2022. While rejecting the anticipatory bail application the sessions court has indicated that the proclamation under section 82 Cr.P.C. has been issued against the accused. It has been informed at the Bar that such proclamation u/s 82 Cr.P.C. has been issued on 24.3.2022. Therefore, when the present applicant filed his anticipatory bail application he was not declared as proclaimed offender but he was declared proclaimed offender during the pendency of his anticipatory bail application before the learned sessions court.
6. As per section 438 Cr.P.C. the anticipatory bail application may be filed either before sessions court or before High Court inasmuch as both the aforesaid courts are having a concurrent jurisdiction. Section 438 (1) Cr.P.C. clearly mandates that if any anticipatory bail application is filed, either it may be rejected forthwith or any interim order may be passed. In other words if the court wants to know some information from the other side, the case may be posted for another date and if the applicant has got prima facie case and his apprehension of arrest appears to be bonafide in a case where the allegations prima facie do not corroborate with material available on record may grant interim anticipatory bail. However, in the present case the proclamation u/s 82 Cr.P.C. has been issued during the pendency of the application. Apex Court in re: Lavesh vs. State (NCT of Delhi) (2012) 8 SCC 730, State of Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171 and Prem Shanker Prasad vs. State of Bihar (Criminal Appeal No. 1209 of 2021) has imposed bar to entertain such application if filed by the proclaimed offender. In the present case at the time of filing anticipatory bail application the applicant was not proclaimed offender.
7. Learned AGA has also informed that on 13.5.2022 the further proclamation of section 83 Cr.P.C. has been issued against the present applicant.
8. Be that as it may, at the time of filing anticipatory bail application on 16.3.2022 the present applicant was not proclaimed offender, therefore, the bar so imposed by the Apex Court would be considered in the light of intent and purport of said judgments wherein the proclaimed offender has been restrained to get any relief in the application of anticipatory bail. In the present case the applicant was not declared as a proclaimed offender on 16.3.2021, the date of filing anticipatory bail, therefore, to me such bar could not restrain the present applicant to file his anticipatory bail application before this Court under same section i.e. section 438 Cr.P.C. and, therefore, his anticipatory bail application may be heard and disposed of finally on merits.
9. Notably,sub-section 6 of section 438 Cr.P.C. provides as under :
438(6)Cr.P.C.: Provisions of this section shall not be applicable.-
(a) to the offences arising out of .-
(i) the Unlawful Activities (Prevention) Act,1967;
(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;
(iii) the Official Secret Act, 1923;
(iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention ) Act,1986.
(b) in the offences, in which death sentence can be awarded.
Besides, section 82 Cr.P.C. neither creates any rider nor imposes any restrictions in filing anticipatory bail application by the proclaimed offender inasmuch as the Hon'ble Apex Court has used the word 'Normally' in re: Lavesh (supra), meaning thereby normally the anticipatory bail application of the proclaimed offender should not be entertained. Therefore, only in the aforesaid case / cases the provisions of anticipatory bail application would not be applicable. It has nowhere been indicated u/s 438 Cr.P.C. that the proclaimed offender would be barred to file such application. As to whether such proclaimed offender would be granted anticipatory bail or not would depend upon the facts and circumstances of the particular issue and also on the basis of bar, so imposed by the Apex Court in re: Lavesh (supra), Pradeep Sharma (supra) and Prem Shankar Prasad (supra). Therefore, in view of the facts and circumstances of the issue in question, I do not accept the objection, so raised by the learned counsel for the opposite parties regarding maintainability of the present application for the reason that the proclamation u/s 82/83 Cr.P.C. has been issued against the applicant.