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2015 DIGILAW 1088 (JHR)

Gopal Singh v. State of Jharkhand

2015-09-14

RONGON MUKHOPADHYAY

body2015
ORDER : Heard the parties. 2. The petitioners apprehend their arrest in connection with P.C.R. Case No. 12/2009, corresponding to T.R. No. 141 of 2015, registered for the offence punishable under Sections 379, 323 and 354 of the Indian Penal Code. 3. It has been submitted by the learned counsel for the petitioners that the petitioners have falsely been implicated in the present case as a counter blast to Meharma (Belbadda) P.S. Case No. 02/09 instituted by the petitioner no. 1 against the husband of the complainant just a day prior to the institution of the present case. 4. It has further been submitted that no summons or notice were ever served upon the petitioners and merely because process under section 82 Cr.P.C. has been issued, the same cannot be a ground to refuse anticipatory bail. In this context, learned senior counsel has referred to the case of Mahendra Kumar Ruiya Vs. State of Jharkhad & Anr., reported in 2013(2) JLJR 407, wherein it has been held that proper compliance of Section 82 Cr.P.C. is very much essential. It has been submitted that in view of the said judgment, and in view of the fact that there has been no compliance prior to issuance of process under section 82 Cr.P.C., the present application is maintainable. 5. Learned senior counsel has further referred to the judgment of Sant Lal Gupta & Ors. Vs. Modern Cooperative Group Housing Society Limited & Ors. reported in 2010 (13) SCC 336 to augment his argument that it is neither desirable nor permissible by a Coordinate Bench to take a divergent view from an earlier Coordinate Bench. 6. Mr. Md. Asif Khan, learned APP, on the other hand has referred to the judgment of Hon’ble Supreme Court in the case of Lavesh Vs. State ( NCT of Delhi) reported in (2012) 8 SCC 730 and the judgment in the case of State of M.P. Vs. Pradeep Sharma, reported in (2014) 2 SCC 171 to show that once an accused is declared a proclaimed offender in terms of section 82 of the Code, he is not entitled to the relief of anticipatory bail. 7. State ( NCT of Delhi) reported in (2012) 8 SCC 730 and the judgment in the case of State of M.P. Vs. Pradeep Sharma, reported in (2014) 2 SCC 171 to show that once an accused is declared a proclaimed offender in terms of section 82 of the Code, he is not entitled to the relief of anticipatory bail. 7. Although the complaint case was instituted in the year 2009 but only when the petitioners could come to know that process under section 82 of Cr.P.C. was received by them on 6.1.2015, the anticipatory bail was preferred before the learned Principal District & Sessions Judge, Godda. In the case of Lavesh ( supra) with respect to the maintainability of an anticipatory bail when process under section 82 Cr.P.C. has been issued, it has been held as follows:- “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”. 8. The facts of the case of Mahendra Kumar Rui (supra) is entirely different inasmuch as the petitioner of the said case against the order of cognizance had preferred a criminal revision and only upon disposal of the said revision, the anticipatory bail application was preferred. As such the question of evading arrest or of concealment did not arise. 9. From the facts of the present case however, as has been reiterated above, it appears that the anticipatory bail application was filed after the process under section 82 Cr.P.C. was issued and in view of what has been laid down in the case of Lavesh (Supra) and State of M.P vs. Pradeep Sharma (supra), this application is not maintainable at this stage and accordingly the same is hereby dismissed.