2018 (6) TMI 1745 - HC - Indian Laws

Grant of Anticipatory Bail - petitioner on an erroneous impression moved another application and the said petition came to be rejected on the ground that second petition under Section 438 of Cr.P.C. is not maintainable - HELD THAT - The Hon ble Supreme Court in Lavesh vs. State (NCT of Delhi) 2012 (8) TMI 1190 - SUPREME COURT has held that 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. Since the petitioner had the benefit of the earlier order passed by the Sessions Court under Section 438 of Cr.P.C., the trial Court may consider the application for bail moved by the petitioner on the same day of his appearance before the Court - criminal petition is rejected.

Summary

Issues: Anticipatory bail under Section 438 of Cr.P.C., maintainability of second petition under Section 438, continuous absence leading to NBW and proclamation, entitlement to anticipatory bail for proclaimed offender.

The judgment addresses the issue of anticipatory bail under Section 438 of Cr.P.C. The petitioner had been granted anticipatory bail by the Sessions Court previously but failed to appear before the Magistrate due to an accident. Subsequently, the petitioner filed another application under Section 438, which was rejected on the ground of non-maintainability of a second petition. The High Court Government Pleader highlighted the continuous absence of the petitioner, leading to a Non-Bailable Warrant (NBW) and proclamation against him. Citing the Supreme Court ruling in Lavesh vs. State (NCT of Delhi), the judgment emphasized that when a person is absconding and declared a proclaimed offender, anticipatory bail is not granted. Despite the earlier order by the Sessions Court, the High Court rejected the petition, suggesting the trial Court to consider a bail application upon the petitioner's appearance.

The judgment also delves into the issue of the maintainability of a second petition under Section 438 of Cr.P.C. The petitioner's second application for anticipatory bail was deemed not maintainable due to the rejection based on the grounds of non-maintainability of a subsequent petition under the same section. This aspect was crucial in the decision to reject the petitioner's plea for anticipatory bail.

Furthermore, the judgment addresses the consequences of the petitioner's continuous absence, leading to the issuance of a Non-Bailable Warrant (NBW) and proclamation against him. The High Court Government Pleader highlighted the issuance of the NBW and proclamation due to the petitioner's continuous absence, which played a significant role in the decision to reject the anticipatory bail plea.

Lastly, the judgment explores the issue of entitlement to anticipatory bail for a proclaimed offender. Citing the Supreme Court ruling in Lavesh vs. State (NCT of Delhi), the judgment reiterated that a person declared as a proclaimed offender is not entitled to anticipatory bail. This legal principle influenced the decision to reject the petitioner's plea for anticipatory bail, despite the earlier grant by the Sessions Court.