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TMI Blog2024 (3) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... f warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the summons . The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. In view of the proviso under Section 438(1), Cr.PC, it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail. The factual narration made would reveal the consistent disobedience of the appellants to comply with the orders of the trial Court. They failed to appear before the Trial Court after the receipt of the summons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) 2 SCC 171] and Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730]. In Lavesh s case (supra), this Court held in paragraph 12 thus: - 12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and 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. (Underline supplied) 4. In the decision in Pradeep Sharma s case (supra) this Court held that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 Cr.PC., he is not entitled to relief of anticipatory bail. After extracting Section 438, Cr.PC., it was further held therein thus:- 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because of the pendency of an application for anticipatory bail though more often than not, under such circumstances subordinate Courts would wait for orders of the High Court. It be so, existence of any such circumstance would disentitle a person to press for pre-arrest bail. Even a pending application is not maintainable, it is contended. 8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under Section 438, Cr. PC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan Anr. [2010 (1) SCC 679]). 9. When a Court grants anticipatory bail what it actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest. Since the legality of the proceedings under Section 82, Cr. PC is not under challenge, we need not go into that question. As noticed above, the nub of the contentions is that pending the application for pre-arrest bail, proclamation under Section 82, Cr.P.C., should not have been issued and at any rate, its issuance shall not be a reason for declining to consider such application on merits. Bearing in mind the position of law revealed from the decisions referred to hereinbefore and the positions of law, we will briefly refer to the factual background of the case. 12. For considering the aforesaid proposition of law, we think it absolutely unnecessary to deal with FIR No. 37 of 2018 dated 28.03.2018 filed against Respondent No. 2, Mr. Rajiv Kumar Upadhyay and four others, and also FIR No. 66 of 2018 registered against appellant No. 4 (first accused) and four other family members of the appellants. Civil Suit No. 140 of 2019 filed against the family members of the appellants for illegal encroachment is also not to be considered as nothing would turn out of it in relation to the question posed for consideration. We may hasten to add that if the question whether the appellants ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .05.2022, the accused, other than the appellants herein, appeared and applied for regular bail before the Trial Court and the Trial Court granted them regular bail. Subsequently, the complainant/the second respondent herein, applied for cancellation of bail granted to them and as per the order dated 09.06.2022 the grantees of bail were issued with show cause notices. Upon receiving the notice for cancellation of bail, they unsuccessfully approached the Sessions Court challenging the order taking cognizance, in Criminal Revision Petition No. 94 of 2022. Pursuant to the dismissal of the Revision Petition, the Trial Court posted the application for cancellation of bail on different dates. The fact is that despite such developments, the appellants herein neither appeared before the Trial Court nor sought for regular bail. In the meanwhile, the appellants herein moved a bail-cum-surrender application (described as such by them), before the Trial Court. However, it was withdrawn on 23.08.2022 on the fear of arrest. Thereupon, the Trial Court fixed the date for appearance of the appellants on 30.08.2022. Before the date fixed for their appearance, the appellants filed application for anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, following issuance of nonbailable warrant could not be a reason for nonconsidering the application for anticipatory bail on merits. 16. For a proper consideration of the aforesaid contentions and allied questions, it is only appropriate to refer to certain provisions of law as also certain relevant decisions. From the chronology of events narrated hereinbefore, it is evident that for reasons best known to the appellants, subsequent to the filing of the final report in terms of the provisions under Section 173 (2), Cr.P.C in FIR No. 79/2020 and issuance of summons, issuance of bailable warrants and issuance of non-bailable warrants; pursuant to the failure of the appellants to appear before the Court on the date fixed for their appearance based on bailable warrants, they did not care to take any action in accordance with law except moving applications for bail. Same was the position even after the issuance of the proclamation under Section 82, Cr.PC. As noted earlier, in the case of similarly situated co-accused of the appellants, they appeared and obtained regular bail pursuant to the issuance of bailable warrants. Thus, a scanning of the acts and omissions of the appellants, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974. Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. 18. Taking note of the aforesaid facts wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail-cum-surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. PC an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law. 21. To understand and consider another contention of the appellants it is worthy to extract ground No. 3 raised by the appellants in SLP which reads thus: III. Because the Hon'ble High Court has faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail. In short, nothing prevents the court from adjourning such an application without passing an interim order. This question was considered in detail by a Single Bench of the High Court of Bombay, in the decision in Shrenik Jayantilal Jain and Anr. v. State of Maharashtra Through EOW Unit II, Mumbai [2014 SCC Online Bom 549] and answered as above and we are in agreement with the view that in such cases, there will be no statutory inhibition for arrest. Hence, the appellants cannot be heard to contend that the application for anticipatory bail filed in November, 2022 could not have been adjourned without passing interim order. At any rate, the said application was rejected on 04.04.2023. Pending the application for anticipatory bail, in the absence of an interim protection, if a police officer can arrest the accused concerned how can it be contented that the court which issued summons on account of nonobedience to comply with its order for appearance and then issuing warrant of arrest cannot proceed further in terms of the provisions under Section 82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to such grant. 25. The factual narration made hereinbefore would reveal the consistent disobedience of the appellants to comply with the orders of the trial Court. They failed to appear before the Trial Court after the receipt of the summons, and then after the issuance of bailable warrants even when their co-accused, after the issuance of bailable warrants, applied and obtained regular bail. Though the appellants filed an application, which they themselves described as bail-cum-surrender application on 23.08.2022, they got it withdrawn on the fear of being arrested. Even after the issuance of nonbailable warrants on 03.11.2022 they did not care to appear before the Trial Court and did not apply for regular bail after its recalling. It is a fact that even after coming to know about the proclamation under Section 82 Cr.PC., they did not take any steps to challenge the same or to enter appearance before the Trial Court to avert the consequences. Such conduct of the appellants in the light of the aforesaid circumstances, leaves us with no hesitation to hold that they are not entitled to seek the benefit of pre-arrest bail. 26. The upshot of the discussion is that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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