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TMI Blog2013 (12) TMI 1759X X X X Extracts X X X X X X X X Extracts X X X X ..... lpur 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 (Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that a person accused of an offence is not likely to otherwise misuse his liberty. 11. 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: 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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-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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code. 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 appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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