Accused who is absconding should not be granted Anticipatory bail

The High Court failed to appreciate that it
is a settled position of law that where the accused has been
declared as an absconder and has not cooperated with the
investigation, he should not be granted anticipatory bail.REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2049
OF 2013
(Arising out of S.L.P. (Crl.) No. 4102 of 2013)
State of Madhya Pradesh
.... Appellant(s)
Versus
Pradeep Sharma
Respondent(s)

P.Sathasivam, CJI.1
Citation; 2014 (1) crimes 70 SC

1) Leave granted.
2) These appeals are filed against the orders dated
10.01.2013 and 17.01.2013 passed by the High Court of
Madhya Pradesh Principal Seat at Jabalpur in Misc. Criminal
Case Nos. 9996 of 2012 and 15283 of 2012 respectively
whereby the High Court granted anticipatory bail to the
respondents herein.

3) Brief facts:
a) The case of the prosecution is that Rajesh Singh Thakur
(the deceased), resident of village Gopalpur, Tehsil Chaurai,
District Chhindwara, Madhya Pradesh and Pradeep Sharma
(respondent herein), resident of the same village, were
having enmity with each other on account of election to the
post of Sarpanch.
b)
On 10.09.2011, Pradeep Sharma (respondent herein), in
order to get rid of Rajesh Singh Thakur (the deceased),
conspired along with other accused persons and managed to
call him to the Pawar Tea House, Chhindwara on the pretext
of setting up of a tower in a field where they offered him
poisoned milk rabri (sweet dish).
c)
After consuming the same, when he left the place to
meet his sister, his condition started getting deteriorated
because of vomiting and diarrhea. Immediately, the father
of
the
deceased
took
him
to
the
District
Hospital,
Chhindwara wherefrom he was referred to the Government
Hospital, Chhindwara.

d)
Since there was no improvement in his condition, on
11.09.2011, he was shifted to the Care Hospital, Nagpur
where he took his last breath.
The hospital certified the
cause of death to be poisoning. On the very same day, after
sending the information to the Police Station, Sitabardi,
Nagpur, the body was sent for the post mortem.
e)
Inder Singh Thakur-father of the deceased submitted a
written complaint to the Police Station Kotwali, Chhindwara
on 13.09.2011 suspecting the role of the respondents herein.
After investigation, a First Information Report (in short ‘the
FIR’) being No. 1034/2011 dated 18.10.2011 was registered
under Sections 302 read with 34 of the Indian Penal Code,
1860 (in short ‘the IPC’).
f)
On 01.08.2012, Pradeep Sharma (respondent herein)
moved an application for anticipatory bail by filing Misc.
Criminal Case No. 7093 of 2012 before the High Court which
got rejected vide order dated 01.08.2012 on the ground that
custodial interrogation is necessary in the case.
g)
On 26.08.2012, a charge sheet was filed in the court of
Chief
Judicial
Magistrate,
Chhindwara
against
Sanjay

Namdev, Rahul Borkar, Ravi Paradkar and Vijay @ Monu
Brahambhatt
whereas
the
investigation
in
respect
of
Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh
Raghuvanshi (respondents herein), absconding accused,
continued since the very date of the incident.
h)
On 21.11.2012, arrest warrants were issued against
Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh
Raghuvanshi but the same were returned to the Court
without service.
Since the accused persons were not
traceable, on 29.11.2012, a proclamation under Section 82
of the Code of Criminal Procedure, 1973 (in short ‘the Code’)
was issued against them for their appearance to answer the
complaint.
i)
Instead of appealing the order dated 01.08.2012,
Pradeep
Sharma
(respondent
herein)
filed
another
application for anticipatory bail being Misc. Criminal Case No.
9996 of 2012 before the High Court. Vide order dated
10.01.2013, the High Court granted anticipatory bail to
Pradeep Sharma (respondent herein).
accused-Gudda
@
Naresh
Similarly, another
Raghuvanshi
was
granted

anticipatory bail by the High Court vide order dated
17.01.2013 in Misc. Criminal Case No. 15283 of 2012.
j)
Being aggrieved by the orders dated 10.01.2013 and
17.01.2013, State of Madhya Pradesh has filed the above
appeals before this Court.
k)
In the meantime, the respondents herein approached
the Court of Chief Judicial Magistrate, Chhindwara for the
grant of regular bail.
Vide order dated 20.02.2013, the
accused persons were enlarged on bail.
4)
Heard Ms. Vibha Datta Makhija, learned senior counsel
for the appellant-State and Mr. Niraj Sharma, learned
counsel for the respondents.
5)
The only question for consideration in these appeals is
whether the High Court is justified in granting anticipatory
bail
under
Section
438
of
the
Code
to
the
respondents/accused when the investigation is pending,
particularly, when both the accused had been absconding all
along and not cooperating with the investigation.
6)
Ms. Vibha Datta Makhija, learned senior counsel for the
appellant-State, by drawing our attention to the charge

sheet,
submitted
that
the
charges
filed
against
the
respondents/accused relate to Sections 302, 120B and 34 of
the IPC which are all serious offences and also of the fact
that both of them being absconders from the very date of
the incident, the High Court is not justified in granting
anticipatory bail that too without proper analysis and
discussion.
7)
On the other hand, Mr. Niraj Sharma, learned counsel
for the respondents in both the appeals supported the order
passed by the High Court and prayed for dismissal of the
appeals filed by the State.
8)
We have carefully perused the relevant materials and
considered the rival contentions.
9)
In order to answer the above question, it is desirable to
refer Section 438 of the Code which reads as under:-
“438. Direction for grant of bail to person
apprehending arrest.—(1) Where any person has reason
to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to the
High Court or the Court of Session for a direction under this
section that in the event of such arrest he shall be released
on bail; and that Court may, after taking into consideration,
inter alia, the following factors, namely—
(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant 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 applicant to flee from justice;
and
(iv) where the accusation has been made with the
object of injuring or humiliating the applicant by having
him so arrested,
either reject the application forthwith or issue an interim
order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may
be, the Court of Session, has not passed any interim order
under this sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to an officer in
charge of a police station to arrest, without warrant the
applicant on the basis of the accusation apprehended in
such application.
Xxx xxx xxx”
10) 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.
11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC
303, this Court considered the scope of Section 438 of the
Code as under:-

“16. Section 438 is a procedural provision which is
concerned with the personal liberty of an individual who is
entitled to plead innocence, since he is not on the date of
application for exercise of power under Section 438 of the
Code convicted for the offence in respect of which he seeks
bail. The applicant must show that he has “reason to
believe” that he may be arrested in a non-bailable offence.
Use of the expression “reason to believe” shows that the
belief that the applicant may be arrested must be founded
on reasonable grounds. Mere “fear” is not “belief” for
which reason it is not enough for the applicant to show that
he has some sort of vague apprehension that someone is
going to make an accusation against him in pursuance of
which he may be arrested. Grounds on which the belief of
the applicant is based that he may be arrested in non-
bailable offence must be capable of being examined. If an
application is made to the High Court or the Court of
Session, it is for the court concerned to decide whether a
case has been made out for granting of the relief sought.
The provisions cannot be invoked after arrest of the
accused. A blanket order should not be generally passed. It
flows from the very language of the section which requires
the applicant to show that he has reason to believe that he
may be arrested. A belief can be said to be founded on
reasonable grounds only if there is something tangible to
go by on the basis of which it can be said that the
applicant’s apprehension that he may be arrested is
genuine. Normally a direction should not issue to the effect
that the applicant shall be released on bail “whenever
arrested for whichever offence whatsoever”. Such “blanket
order” should not be passed as it would serve as a blanket
to cover or protect any and every kind of allegedly
unlawful activity. An order under Section 438 is a device to
secure the individual’s liberty, it is neither a passport to
the commission of crimes nor a shield against any and all
kinds of accusations likely or unlikely. On the facts of the
case, considered in the background of the legal position set
out above, this does not prima facie appear to be a case
where any order in terms of Section 438 of the Code can
be passed.”

12) Recently, in Lavesh vs. State (NCT of Delhi), (2012)
8 SCC 730, this Court, (of which both of us were parties)
considered the scope of granting relief under Section 438
vis-à-vis to a person who was declared as an absconder or
proclaimed offender in terms of Section 82 of the Code. In
para 12, this Court held as under:
“12. From these materials and information, it is clear that
the present appellant was not available for interrogation
and investigation and was 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.”
It is clear from the above decision that if anyone is declared
as an absconder/proclaimed offender in terms of Section 82
of the Code, he is not entitled to the relief of anticipatory
bail.
In the case on hand, a perusal of the materials i.e.,
confessional statements of Sanjay Namdev, Pawan Kumar @
Ravi and Vijay @ Monu Brahambhatt reveals that the
respondents
deceased.
administered
poisonous
substance
to
the
Further, the statements of witnesses that were

recorded and the report of the Department of Forensic
Medicine & Toxicology Government Medical College &
Hospital, Nagpur dated 21.03.2012 have confirmed the
existence of poison in milk rabri. Further, it is brought to our
notice that warrants were issued on 21.11.2012 for the
arrest of the respondents herein.
Since they were not
available/traceable, a proclamation under Section 82 of the
Code was issued on 29.11.2012. The documents (Annexure-
P13) produced by the State clearly show that the CJM,
Chhindwara, M.P. issued a proclamation requiring the
appearance of both the respondents/accused under Section
82 of the Code to answer the complaint on 29.12.2012. All
these materials were neither adverted to nor considered by
the High Court while granting anticipatory bail and the High
Court, without indicating any reason except stating “facts
and circumstances of the case”, granted an order of
anticipatory bail to both the accused. It is relevant to point
out that both the accused are facing prosecution for offences
punishable under Sections 302 and 120B read with Section
34 of IPC.
In such serious offences, particularly, the

respondents/accused being proclaimed offenders, we are
unable
to
sustain
the
impugned
orders
of
granting
anticipatory bail. The High Court failed to appreciate that it
is a settled position of law that where the accused has been
declared as an absconder and has not cooperated with the
investigation, he should not be granted anticipatory bail.
13) In the light of what is stated above, the impugned
orders of the High Court dated 10.01.2013 and 17.01.2013 in
Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012
respectively are set aside.
Consequently, the subsequent
order of the CJM dated 20.02.2013 in Crime No. 1034 of
2011 releasing the accused on bail after taking them into
custody in compliance with the impugned order of the High
Court is also set aside.
14) In view of the same, both the respondents/accused are
directed to surrender before the court concerned within a
period of two weeks failing which the trial Court is directed
to take them into custody and send them to jail.
15) Both the appeals are allowed on the above terms.

...........................................CJI.
(P. SATHASIVAM)
...............................................J.
(RANJAN GOGOI)
NEW DELHI;
DECEMBER 6, 2013.