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TMI Blog2020 (10) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 CrPC, but failed to nab the accused. Subsequently, the Police filed a charge sheet without arresting the accused. After taking cognizance of the offence, the Court issued Non-bailable Warrants, and upon its non-execution, allowed the application of the prosecution and proceeded against the accused under Section 82 CrPC, and thus, vide order dated 24.12.2013, declared the petitioner as a proclaimed offender. Per Paragraph 7 of the bail petition, after that Learned Additional Sessions Judge (Fast Tract Court), proceeded under Section 299 CrPC and recorded evidence including statement of the victim. 3. The petitioner's criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years: The contents of the petition and the status report do not reveal any criminal history. 4. Briefly, the allegations against the petitioner are that on 19.7.2013, the victim, accompanied by her father, visited the Police Station, Gohar, and complained to the Police that she was a student of 10+1. On 22.6.2013, she had gone to stay with her mother's brother, from where her school was ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he COVID-19 pandemic, he was forced to return home and got information that his girlfriend had lodged an FIR against him, and he is a proclaimed offender, hence bail. 6. While opposing the bail, Mr. Nand Lal Thakur, Learned Additional Advocate General contended that an absconder whom the Court has declared as a proclaimed offender has no legal rights to file an application under Section 438 CrPC. 7. Mr. Ashok Tyagi, Learned Amicus Curiae carved out a distinction in the pronouncements of Hon'ble Supreme Court and states that this Court has the jurisdiction to grant anticipatory, in peculiar facts, even to a proclaimed offender. 8. In Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, (Para 10), Hon'ble Supreme Court holds, 10. ... 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 is not entitled the relief of anticipatory bail. 9. In State of Madhya Pradesh v. Pradeep Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of anticipatory bails by the proclaimed offenders. Even in Lavesh's case (supra), while laying down the law on anticipatory bails to absconders, Hon'ble Supreme Court structured the pronouncement by the words, "Normally." An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013. After that, compelled by the lockdown, and fear created by the pandemic of COVID-19, returned home, where, for the first time, he came to know about the FIR and already declared as a proclaimed offender cannot be ruled out. Resultantly, the facts and circumstances are not normal. The legal maxim Domus sua cuique est tutissimum refugium, aptly describes the plight of the accused, which means every man's house is his safest refuge. Thus, the circumstances can not be termed as normal for the accused, and he makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty. 12. In Gurbaksh Singh Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes. 14. The conduct of the victim of accompanying the accused to her bedroom without any resistance, and subsequently without any reasons running away to the forest from the safe custody of her maternal uncle, and staying alone in a cave for three days, at least makes out a case for bail to the petitioner. An analysis of the evidence does not justify further incarceration of the accused, nor is it going to achieve any significant purpose, making out a case for bail. 15. The possibility of the accused influencing the course of the investigation, tam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted. f) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court. g) In the first instance, the Court shall issue summons and may inform the Petitioner about such summons through SMS/ WhatsApp message/ E-Mail. h) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-Mail. i) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper. j) In case of Non-appearance, then irrespecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner puts signatures on personal bond shall explain all conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English. 18. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition. 19. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law. 20. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner. 21. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. 22. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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