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12. Though the counsel appearing for the complainant as well as the learned Public Prosecutor have not been able to show that the petitioner has been declared as a proclaimed [2024:RJ-JP:29878] (9 of 47) [CRLMB-7581/2024] offender by issuing a declaration under sub-section (4) of section 82 CrPC. This Court is dealing with the legal question raised that after initiation of proceedings under sections 82- 83 CrPC that 'Whether anticipatory bail of an accused under section 438 CrPC can be entertained and decided on merits or not?'

In the case of Sitaram (supra), the Coordinate Bench of this Court while disposing of the anticipatory bail application of accused therein in para Nos. 6, 7 and 8 has observed as under:-

"6. I have heard and considered the arguments advanced at bar and perused the material available on record. Apparently, in this case, now the police has filed the charge-sheet and, therefore, custodial interrogation is not required in this matter. It is also evident from record that only warrant under Section 37 of the Police Act has been obtained by the police to file charge-sheet under Section 299 Cr.P.C., while proceedings under Section 82 & 83 Cr.P.C have not attained finality.

8. In the present case, admittedly, proceedings under Sections 82 & 83 Cr.P.C. have not attained finality. Arrest should be the last option and should be restricted to those exceptional cases where arrest of the accused is imperative in the facts and circumstances of the case. The court must carefully examine entire material available on record and particularly, the allegations which have been directly attributed to the accused and the allegations should be corroborated by other material and circumstances on record."

[2024:RJ-JP:29878] (18 of 47) [CRLMB-7581/2024]

31. Therefore, Apex Court in the case of Lavesh and Pradeep Sharma (supra) impliedly referred the factor (iii) of Section 438 (1) of Cr.P.C. and its different fall outs because according to Apex Court, a person who is proclaimed offender under Sections 82 and 83 of Cr.P.C. loses the sheen on merits to seek anticipatory bail. His application deserves dismissal on merits if he is declared as absconder under Section 82 of Cr.P.C. but application is certainly maintainable. Even otherwise, because the proceedings under Sections 82 and 83 of Cr.P.C. are transient/interim/provisional in nature and subject to proceedings under Section 84 (at the instance of any person other then proclaimed offender having interest in the attach property), Section 85 (at the instance of proclaimed offender himself) and Section 86 [Appeal against the order (under Section 85 rejecting application for restoration of attach property]. Even Section 84 (4) of Cr.P.C. gives power to the objector to institute a suit to establish the right which he claims in respect of property in dispute. Therefore, all these provisions render the proceedings under Section 82/83 of Cr.P.C. transient or intermediary and on the basis of transient provision, valuable right of personal liberty of an individual at least to seek anticipatory bail cannot be curtailed. Therefore, on this count also, application under Section 438 of Cr.P.C. is maintainable even if a person has been declared as proclaimed offender in terms of Section 82 of Cr.P.C.