Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 2292 (RAJ)

Deepak Kumar v. State of Rajasthan

2013-12-16

KANWALJIT SINGH AHLUWALIA

body2013
Hon'ble AHLUWALIA, J.—Present application has been filed under Section 438 Cr.P.C. for grant of pre-arrest bail to the petitioners in a case arising out of FIR No.239/2010 registered at Police Station Sanganer, Jaipur City (East), for commission of offences punishable under Sections 420, 467, 468, 471, 406 and 120-B IPC. 2. This Court on 9.9.2013 had passed the following order: "Mr. Ved Bishnoi, the learned counsel for the complainant, has relied upon the case of Lavesh vs. State (NCT of Delhi), reported as (2012) 8 SCC 730 , to contend that a person, who has been declared as "proclaimed offender" is not entitled to grant of anticipatory bail, and the application of the "proclaimed offender" cannot be entertained. Para 12 of the said judgment reads as follows: "From these materials and information, it is clear that the preset appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "Proclaimed Officer", 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. Mr. A.K. Gupta, the learned counsel for the accused-petitioners, prays for an adjournment to distinguish the judgment rendered in Lavesh's case (supra). List this case on 12.09.2013, as prayed." 3. Thereafter, the case was listed before this Court on 12.09.2013 and learned counsel for the petitioners sought an adjournment to advance the arguments. Order dated 12.09.2013 reads as under: "Shri A.K. Gupta appearing for the petitioners prays for an adjournment to cite case law to answer the question formulated by this Court in the order dated 9.9.2013. List after two weeks." 4. Today, the case has been listed for arguments. Mr. A.K. Gupta, learned counsel appearing on behalf of the petitioners has submitted that the judgment rendered by the Hon'ble Supreme Court in the case of Lavesh (supra) is per incuriam and not in consonance with the law laid down by the Constitution Bench in the case of Gurbaksh Singh Sibbia etc. vs. The State of Punjab, AIR 1980 SC 1632 . To fortify his submissions, Mr. A.K. Gupta has submitted that the law has always been evolving. vs. The State of Punjab, AIR 1980 SC 1632 . To fortify his submissions, Mr. A.K. Gupta has submitted that the law has always been evolving. It is stated that after the decision was rendered by he Constitution Bench in the case of Gurbaksh Singh Sibbia etc. (supra), later there was a deviation of law in the decision rendered by the Hon'ble Apex Court in the case of Salauddin Abdulsamad Shaikh vs. State of Maharashtra, AIR 1996 SC 1042 and the position of law was later corrected by the Hon'ble Apex Court vide decision rendered in the case of Bharat Chaudhary & Another vs. State of Bihar & Another, AIR 2003 SC 4662 by holding that the bail cannot be for a limited period and furthermore, the same should be decided on merits of the case. To similar effect, reliance has been placed upon a judgment rendered by the Hon'ble Apex Court in the case of Ravindra Saxena vs. State of Rajasthan, AIR 2010 SC 1225 . In both the decisions rendered in the cases of Bhasrat Chaudhary & Another (supra) and Ravindra Saxena (supra), relied by learned counsel for the petitioners, direct question in issue before the Hon'ble Apex Court was not whether a proclaimed offender is entitled to grant of pre-arrest bail or not. 5. There is no quarrel with he proposition propounded by learned counsel for the petitioners that the decision rendered by he Constitution Bench in Gurbaksh Singh Sibbia etc. (supra) is the law of the land and the same has to be followed by the Courts. 6. Before the judgment rendered by the Hon'ble Apex Court is considered by this Court, it will be appropriate to mention that a Co-ordinate Bench of this Court had granted pre-arrest bail in a case where the same was declined by the Sessions Court relying upon the decision rendered by the Hon'ble Apex Court in the case of Lavesh (supra). Order passed by the Co-ordinate Bench of this Court was set aside by the Hon'ble Apex Court vide order dated 18.11.2013 passed in the case of Shokat Panwar vs. State of Rajasthan & Ors. (Criminal Appeal No.1962 of 2013). Their Lordships, while setting aside the order passed by Co-ordinate Bench of this Court have observed as under: ".......... Order passed by the Co-ordinate Bench of this Court was set aside by the Hon'ble Apex Court vide order dated 18.11.2013 passed in the case of Shokat Panwar vs. State of Rajasthan & Ors. (Criminal Appeal No.1962 of 2013). Their Lordships, while setting aside the order passed by Co-ordinate Bench of this Court have observed as under: ".......... The learned Judge specifically relied upon the law amongst others laid down by this Court in Lavesh vs. State (NCT of Delhi) ( (2012) 8 SCC 730 ) where this Court has held that where the accused is absconding and declared as proclaimed offender, there is no question of granting anticipatory bail. As far s respondent No.2 in SLP (Crl.) No.3576 of 2013 is concerned, she was not charged in the initial FIR, but subsequently her name was included in the case. Her application for anticipatory bail also came to be rejected. Respondent Nos. 2 and 3 in the 1st matter and the respondent No.2 in the 2nd matter moved bail application in the High Court. Those applications have come to be allowed by the impugned orders passed by the learned Single Judge and, therefore, these appeals. 6. Mr. Lalit and Mr. Narasimha, learned senior counsel for the appellant in both these matters, submit that when respondents were declared as absconders, it was not expected of the High Court to grant them bail, particularly, in the teeth of law laid down in the case of Lavesh (supra). The learned Judge in the impugned orders has not even referred to this judgment and has directed the parties to appear before the trial Court and execute bail bonds. Apart from the fact that the contesting respondents were absconding, counsel have pointed out that deceased was being harassed by the family members of her husband on account of demands of dowry." 7. In view of the arguments raised before this Court that judgment rendered by the Hon'ble Apex Court in the case of Lavesh (supra) is per incuriam and not in consonance with the decision rendered by the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra), this Court has to ponder over and decide whether a proclaimed offender is entitled to pre-arrest bail or not as this was not an issue in the case of Gurbaksh Singh Sibbia (supra) or not. 8. 8. In the case of Gurbaksh Singh Sibbia (supra), the Hon'ble Supreme Court specifically held that powers to grant anticipatory bail are not limited and on the merits of the case same should be decided. however, this Court has to notice and cannot become oblivious of conditions of bail specified under Section 438 Cr.P.C. Section 438 Cr.P.C. 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 (emphasis supplied) (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. 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. (1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.] (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)." 9. Condition No.(iii) of Section 438(1) Cr.P.C., specifically states, "The possibility of the applicant to flee from justice". What does the term, 'the possibility of flee from justice' connote, has to be taken into consideration. The possibility to flee from justice, is attributed to one, who is away from the arm of law. The possibility to flee from the justice applies to one, who has not bowed before the majesty of law and has become an out law. 10. The possibility to flee from justice, is attributed to one, who is away from the arm of law. The possibility to flee from the justice applies to one, who has not bowed before the majesty of law and has become an out law. 10. Proclaimed offender is one, who has no regard for the law and has been declared and proclaimed as an offender, who in spite of the notice given by the Court that within a period of 30 days, he should appear before the Court, has not caused appearance before the Court. Thus, there is a judicial verdict that the accused has already flown from the arm of law. Therefore, the term 'possibility' already stands foreclosed as the accused has been declared to be one, who has flown away from the arm of justice. 11. The order passed by the Court below declaring the accused-petitioner to be one, who is a proclaimed offender, as on today is final, as it has not been assailed by filing revision petition or by filing a petitioner under Section 482 Cr.P.C. This Court, while exercising powers under Section 438 Cr.P.C., because of coram non-judice cannot determine the validity of the order, as the same can be questioned before a Co-ordinate Bench by filing appropriate petition under Section 482 Cr.P.C. Since as on today, the petitioners are proclaimed offenders, the condition No.(iii) given in Section 438(1) Cr.P.C. operates against the petitioners and has eclipsed their right to pray for anticipatory bail. Though, not said in express terms, their Lordships of the Hon'ble Apex Court in the case of Lavesh (supra) were conscious of the Condition No.(iii) specified under Section 438(1) Cr.P.C. Therefore, due to existence of the order declaring the petitioners to be proclaimed offenders, observations made by the Hon'ble Supreme Court in the cases of Lavesh (supra) and Shokat Panwar (supra) and Condition No.(iii) specified under Section 438(1) Cr.P.C., this application for grant of pre-arrest bail to the petitioners cannot be entertained and the same is dismissed.