ORDER Jain, CJ(Oral). Heard learned counsel for the parties. 2. The accused Susanta Kumar Sahoo @ Bullu Sahoo, son of Gaurahari Sahoo, has preferred this application under Section 438 Cr. P.C. for grant of anticipatory bail in FIR No. 14 (01) 14 dated 19.01.2014 registered at Police Station Sadar, District East, under Sections 457/380 IPC. 3. Submissions of learned counsel for the petitioner are that name of the accused-petitioner has not been mentioned in the FIR, as per charge sheet filed against co-accused, it is clear that the allegations against petitioner are only in respect of offence under Section 411 IPC and not in respect of offence under Sections 380/457 IPC. She also submitted that there is no evidence against petitioner in respect of offence under Section 411 IPC also. It is further contended that accused-petitioner is ready to appear before Investigating Officer for interrogation and investigation of the case. Therefore, looking to the nature of accusation against petitioner and other facts and circumstances of the case, it will be in the interest of justice to grant anticipatory bail to the accused-petitioner. 4. Learned Addl. Public Prosecutor opposed the bail application contending that from the charge-sheet filed in the present case against co-accused persons, it is clear that a prima facie case under Section 411 IPC is made out against petitioner also. The petitioner is absconding and a prayer has been made by Investigating Officer to the concerned Court to initiate proceedings against him under Section 82/83 Cr. P.C. The Investigating Officer of the case is also present along the case diary of the case. It is also submitted that recovery of stolen property, which is in possession of the accused, is also to be made from him. Therefore, the custody of the petitioner is necessary. It is also submitted that the investigation against the accused-petitioner is still pending and no charge-sheet has been filed against him. The learned Chief Judicial Magistrate has initiated proceedings under Section 82/83 Cr. P.C. and has also issued non-bailable warrant against him. It is further submitted that the Hon’ble Apex Court in Lavesh vs. State (NCT of Delhi) reported in (2012) 8 SCC 730 and State of Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171 has held that the benefit of Section 438 Cr. P.C. and has also issued non-bailable warrant against him. It is further submitted that the Hon’ble Apex Court in Lavesh vs. State (NCT of Delhi) reported in (2012) 8 SCC 730 and State of Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171 has held that the benefit of Section 438 Cr. P.C. should not be given to accused, who is absconding, therefore, the application filed under Section 438 Cr. P.C. be dismissed. 5. I have considered the submissions of learned counsel for the parties. 6. The Hon’ble Apex Court in Lavesh vs. State (NCT of Delhi) (supra) has held as under: - “12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was 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.” (emphasis supplied) 7. The Hon’ble Apex Court in State of Madhya Pradesh vs. Pradeep Sharma (supra), relied upon its earlier judgment in Lavesh vs. State (NCT of Delhi) (supra) and held as under: - “10. The only question for consideration in these appeals is whether the High Court is justified in granting anticipatory bail under Section 438 of the Code to the respondent-accused when the investigation is pending, particularly, when both the accused had been absconding all along and not cooperating with the investigation. XXX 16. Recently, in Lavesh v. State (NCT of Delhi), this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis 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 and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. 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 and was 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.” It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.” (emphasis supplied) 8. The Hon’ble Apex Court in the above referred cases has taken specific view that the benefit under Section 438 Cr. P.C. should not be granted to accused, who is absconding. 9. From the charge-sheet, placed on record, it reveals that a prima facie case against the accused-petitioner under Section 411 IPC is made out on the basis of evidence collected during the course of investigation by investigating agency. The offence under Section 411 IPC is non-bailable offence. The investigation and charge-sheet against petitioner is still pending. The investigating agency made a prayer for initiating proceedings under Sections 82/83 Cr. P.C. against petitioner. The Judicial Court has issued non-bailable warrant against petitioner and has also initiated proceedings under Section 82/83 Cr. P.C. 10. In view of above discussions, I am of the view that accused-petitioner is not entitled to benefit of anticipatory bail under Section 438 Cr. P.C. The application is, accordingly, dismissed. 11. Learned counsel for the petitioner submitted that petitioner resides outside the State of Sikkim, therefore, a liberty may be granted to him to surrender before the concerned Court and the concerned Court be directed to decide the application for bail at the earliest. P.C. The application is, accordingly, dismissed. 11. Learned counsel for the petitioner submitted that petitioner resides outside the State of Sikkim, therefore, a liberty may be granted to him to surrender before the concerned Court and the concerned Court be directed to decide the application for bail at the earliest. After considering submissions of learned counsel for the petitioner, it is directed that in case the petitioner surrenders himself before the concerned Court i.e. the Court of Chief Judicial Magistrate, East at Gangtok, within a period of two weeks along with an application for bail with advance copy to learned Additional Public Prosecutor, then the said Court will try to consider and decide the bail application of the petitioner in accordance with law on the same day. It is needless to mention that the learned Addl. Public Prosecutor will be at liberty to oppose the bail application and submit the concerned Court for police custody of the accused in the case if his custody is required in the facts and circumstances of the case.