In this regard it is relevant to rely upon the judgment passed by
Supreme Court in Prem Shankar Prasad vs. State of Bihar and another, AIR 2021 SC 5125 where in similar facts since proceedings under Sections 82 and 83 Cr.P.C. were initiated, the Supreme Court has relied on the judgment passed in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171 and reiterated that if anyone has been declared as absconder/ proclaimed offender under Section 82 Cr.P.C., he is not entitled for relief of anticipatory bail. The relevant paragraphs of the judgement in Prem Shankar Prasad (supra) are reproduced as under:
“7.2. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that Respondent No. 2-Accused is absconding and even the proceedings Under Sections 82-83 of Code of Criminal Procedure have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to Respondent No. 2-Accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even
the High Court has just ignored the factum of initiation of proceedings Under Sections 82-83 of Code of Criminal Procedure by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.
12. In view of above discussion the applicant is not entitled for
anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also issued under Section 83 Cr.P.C. and, therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for anticipatory bail.
ALLAHBAD HIGH COURT
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438
CR.P.C. No. - 20357 of 2021
Applicant :- Yogendra Kumar Mishra
Opposite Party :- State of U.P. and Another
Delivered on 06.04.2022
Bench: Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant-Yogendra Kumar Mishra has approached this Court by way
of filing this Criminal Misc. Anticipatory Bail Application under Section
438 Cr.P.C. after rejection of his anticipatory bail application vide order
dated 30.11.2021 passed by Additional District and Additional District and
Sessions Judge/Special Judge (POCSO Act), Allahabad, seeking
Anticipatory Bail in Case Crime No. 324 of 2021, under Sections 376, 506,
328 IPC, 3/4 POCSO Act and 67 I.T. Act, Police Station Kotwali, District
Prayagraj.
2. Sri Anil Tiwari, learned Senior Advocate has vehemently argued that
it is a fit case for anticipatory bail. Undisputedly the applicant is a married
person having a wife and son whereas Opposite Party No. 2 (Informant)
alongwith her daughter (a minor girl and victim) are living separately from
her husband. The Informant is a Teacher in a School where applicant is
working as Class-IV employee in same school. It is admitted case that
applicant has consensual relationship with Informant and Informant and her
daughter are staying with him. There are cordial relationship with the son of
applicant with the daughter of First Informant as brother and sister. In
support of this submission learned Senior Advocate has relied on the
photographs and whatsapp chat history which are part of record. Learned
Senior Advocate also submits that their relations were very cordial and he
has purchased a land in his name as well as in the name of Opposite Party
No. 2 and an agreement to sell is also on record. The relationship become
strained when First Informant, though not legally divorced, insisted
2
applicant to get merry which was not possible for applicant because he is a
married person. In these circumstances, applicant withdrew the money
deposited towards agreement to sell. All these circumstances made the First
Informant annoyed and, therefore, a false FIR was lodged wherein false
allegation of rape against applicant, not only with First Informant but with
her minor daughter, was levelled. All the alleged incidents mentioned in FIR
are very old. So far the allegation of rape with minor daughter is concerned,
it is the case of First Informant that applicant himself communicated to her
about the incident, therefore, considering that it is absolutely improbable, a
case of anticipatory bail is made out. Learned Senior Advocate has also
fairly submits that after the Trial Court rejected applicant’s anticipatory bail,
not only non-bailable warrant was issued against applicant but proceedings
were also initiated under Sections 82 and 83 Cr.P.C.
3. Sri Munne Lal, learned A.G.A. appearing for State and Sri Subhash
Chandra Tiwari, Advocate appearing for Opposite Party No. 2, have
vehemently opposed the aforesaid submissions. They submitted that First
Informant as well as her minor daughter have made a categorical statement
against applicant in their statements recorded under Section 164 Cr.P.C. that
they were raped on multiple times taking benefit of their separation and trust
imposed by First Informant and her daughter with applicant. They also
submitted that applicant is not cooperating with investigation process,
therefore, not only non bailable warrant was issued but now proceedings
under Sections 82 and 83 Cr.P.C. have also been initiated against applicant,
therefore, no case for anticipatory bail is made out.
4. I have heard learned counsel for rival parties and perused the material
available on record.
5. Few factors and parameters, which this Court has to consider for
exercising discretion for grant or refusal of anticipatory bail are nature and
gravity of accusation, exact role of the accused, his or her antecedents,
possibility of the accused to flee from justice, likelihood to repeat similar or
other offence. Whether accusation are made only with the object of injury
and causing humiliation to the accused or case is of large magnitude with
possible effect on a large number of people. Greater care and caution is
required while considering cases under Section 34 and 149 IPC. Further
consideration of threat to complainant and witnesses and tempering of
evidences are other relevant factors.
6. While considering anticipatory bail application this Court has to
struck balance between two factors namely, no prejudice should be caused to
the fair and free investigation and accused should not be subjected to
harassment, humiliation and unjustified detention. This Court is justified to
impose conditions spelt out in Section 437 Cr.P.C. and also other restrictive
conditions if deem necessary in the facts and circumstances of a particular
case including limit of the anticipatory bail but not in routine manner. An
Anticipatory Bail Application has to be based on concrete facts (and not
vague or general allegations) relatable to offence and why the applicant
reasonably apprehends his or her arrest, as well as his version of the facts.
7. Before considering the case of applicant on merit with regard to
prayer for anticipatory bail, I have to consider that since there are
proceedings initiated against applicant under Sections 82 and 83 Cr.P.C.,
whether in the facts and circumstances of present case, the applicant is
entitled for anticipatory bail or not.
8. In this regard it is relevant to rely upon the judgment passed by
Supreme Court in Prem Shankar Prasad vs. State of Bihar and another, AIR
2021 SC 5125 where in similar facts since proceedings under Sections 82
and 83 Cr.P.C. were initiated, the Supreme Court has relied on the judgment
passed in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171
and reiterated that if anyone has been declared as absconder/ proclaimed
offender under Section 82 Cr.P.C., he is not entitled for relief of anticipatory
bail. The relevant paragraphs of the judgement in Prem Shankar Prasad
(supra) are reproduced as under:
“7.2. Despite the above observations on merits and despite the fact
that it was brought to the notice of the High Court that Respondent
No. 2-Accused is absconding and even the proceedings Under
Sections 82-83 of Code of Criminal Procedure have been initiated as
far as back on 10.01.2019, the High Court has just ignored the
aforesaid relevant aspects and has granted anticipatory bail to
Respondent No. 2-Accused by observing that the nature of accusation
4
is arising out of a business transaction. The specific allegations of
cheating, etc., which came to be considered by learned Additional
Sessions Judge has not at all been considered by the High Court. Even
the High Court has just ignored the factum of initiation of proceedings
Under Sections 82-83 of Code of Criminal Procedure by simply
observing that "be that as it may". The aforesaid relevant aspect on
grant of anticipatory bail ought not to have been ignored by the High
Court and ought to have been considered by the High Court very
seriously and not casually.
7.3. In the case of State of Madhya Pradesh v. Pradeep Sharma
(Supra), it is observed and held by this Court that if anyone is
declared as an absconder/proclaimed offender in terms of Section 82
of Code of Criminal Procedure, he is not entitled to relief of
anticipatory bail. In paragraph 14 to 16, it is observed and held as
under:
14. In order to answer the above question, it is desirable to refer
to 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:
5
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.
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.
15. In Adri Dharan Das v. State of W.B. (2005) 4 SCC 303
this Court considered the scope of Section 438 of the Code as
under: (SCC pp. 311-12, para 16)
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.
16. Recently, in Lavesh v. 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-avis
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: (SCC p. 733)
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.
Thus the High court has committed an error in granting anticipatory
bail to Respondent No. 2-Accused ignoring the proceedings Under
Section 82-83 of Code of Criminal Procedure.”
(emphasis supplied)
9. In the present case, Trial Court vide order dated 10.01.2022 has noted
that despite proclamation for applicant being absconder issued under Section
82 Cr.P.C. and in this regard publication was also made in newspaper, the
applicant remained absconding, therefore, by the said order Trial Court
issued order for attachment of property, movable or immovable or both,
belongs to proclaimed person, i.e., applicant, under the provisions of Section
83 Cr.P.C. Therefore, the facts and circumstances of present case squarely
covers by the judgment passed by Supreme Court in Prem Shankar Prasad
(supra).
10. At this stage, this Court also deals with the rival submissions made by
parties on merit.
11. On the basis of record available it appears that applicant first inspired
confidence of victims and when they imposed complete trust on him, not
only applicant violated the trust of First Informant but her minor daughter
also. The averments made in the statements recorded under Section 164
Cr.P.C. also depict that applicant not only raped the First Informant but also
raped her minor daughter. There are allegation that applicant has certain
unsolicited video clips also and he has put threat to viral it and blackmailed
the victim and her mother.
12. In view of above discussion the applicant is not entitled for
anticipatory bail on the ground that applicant was not only declared
proclaimed offender under Section 82 Cr.P.C. but proclamation of
attachment of property was also issued under Section 83 Cr.P.C. and,
therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for
anticipatory bail. Even otherwise, on merit also, considering the specific
averments made under Section 164 Cr.P.C. by First Informant as well as her
minor daughter, there are very serious allegations against the applicant and,
therefore, no case for anticipatory bail is made out on merit also.
13. The application is accordingly rejected.
14. However, two weeks time is granted to applicant to surrender before
Trial Court and to move an application for bail. In case such an application
is filed by applicant, Trial Court is directed to decide the same expeditiously
considering the judgment passed by Supreme Court in Satender Kumar Antil
vs. Central Bureau of Investigation and another, (2021) 10 SCC 773.
Order Date :- 06.04.2022
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