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2017 DIGILAW 1200 (KAR)

Lakshamamma v. Kote N. S. Nandish Reddy

2017-09-04

RATHNAKALA

body2017
JUDGMENT : 1. The petitioner is the complainant before the JMFC Court in PCR No. 50175/15. The petitioner has challenged the anticipatory bail passed in Crl.Misc.No.25251/17 dated 12/7/2017, granted in favour of the respondent No.1 who is arrayed as accused No.6 in the complaint. 2. The petitioner has filed the complaint against the accused persons alleging the offence under Section 420 and 120-B of the IPC. The Trial Court recorded the statement of the complainant, took cognizance and issued process against the respondents/accused. Since the 6th accused did not respond to the summons, NBW was ordered and it also went in vain. The Trial Court, vide order dated 4/2/2017, ordered proclamation. The respondent-accused challenged the issue of proclamation before the Revision Court/Sessions Court, and the Revision came to be dismissed. However, there is no material that consequent upon the issue of proclamation, the procedure contemplated under Section 82(2) of Cr.P.C., was complied. The respondent, in the meantime, approached the Sessions Court for anticipatory bail and the complainant contested the said petition and brought to the notice of the Court that a proclamation is ordered against him. 3. While placing reliance on the judgment of the Apex Court in the case of Lavesh Vs. State (NCT OF DELHI) reported in (2012) 8 SCC 730 , it was contended by the learned counsel for the complainant/petitioner that any person declared as an absconder/ proclaimed offender in terms of Section 82 of the Cr.P.C. is not entitled to the relief of anticipatory bail. However, the Sessions Court was of the opinion that the offence alleged against the accused was not punishable with death or life imprisonment and there was no prima facie material against him in respect of the offence alleged. Thus, the Sessions Court granted anticipatory bail. 4. Now, it is the submission at the Bar that consequent upon the orders of the Sessions Court, the respondent/accused appeared before the Court. The complainant, at that stage also contested the grant of bail and brought to the notice of the learned Magistrate that the application filed by the accused under Section 437 Cr.P.C. was still pending and the said application has to be considered independently. The JMFC Court accepted the surety bond in terms of the orders passed by the Sessions Court and now he is on bail. 5. Sri. The JMFC Court accepted the surety bond in terms of the orders passed by the Sessions Court and now he is on bail. 5. Sri. R. Kalyan, the learned counsel for the petitioner, submits that the order passed by the Sessions Court is against the mandate of the Apex Court in the case of State of Madhya Pradesh Vs. Pradeep Sharma reported in (2014) 2 SCC 171 , and the judgment of LAVESH, supra, wherein it is held that, once the proclamation order is passed by the concerned Court, no anticipatory bail can be ordered in his favour. 6. In reply, Sri. V. Naga Reddy, the learned counsel for the respondent No.1, submits that in fact the accused was not declared a proclaimed offender. The procedure under Section 82(2) was not yet complied. Immediately after coming to know about the registration of the case, he had challenged the order of issue of proclamation before the Revision Court. On the said Revision being dismissed, he had moved the Sessions Court for anticipatory bail. The offence alleged against him is not punishable with major punishment and the judgment of the Apex Court, either in the case of LAVESH or PRADEEP SHARMA (supra), is not applicable to his case. He has complied with the order of the Sessions Court. Though he had filed an application under Section 437 of Cr.P.C. before the JMFC Court, after withdrawing the same, he has moved the application under Section 438 of Cr.P.C. before the Sessions Court. The application filed by him under Section 205 of Cr.P.C. seeking dispensation of his personal attendance, is also pending adjudication. 7. Learned HCGP submits that the accused cannot prosecute an application under Section 205 of Cr.P.C. along with an application under Section 437 of Cr.P.C. While Section 437 can be invoked by accused under custody, the application under Section 205 is for dispensation of his personal attendance and the relief’s that were sought in both the applications, are contrary to each other. The learned HCGP further submits that similar situation arose for consideration before the High Court of Delhi and in the said case, the Hon'ble High Court had taken the view that a distinction has to be made where a person has been declared as a proclaimed offender without his knowledge and cases where a person knows about his being required by law enforcing agency, yet tries to escape from the same by hook or by crook and then suddenly finds an opportune time to obtain an order to insulate his liberty. 8. Addressing the present question of law raised by the complainant, the Court had ordered proclamation under Section 82 of Cr.P.C. and the procedure and formalities were yet to be complied. In the meantime, the petitioner has approached the Sessions Court under Section 438 Cr.P.C. after he unsuccessfully fought in his Revision petition, challenging the very order of issue of proclamation, though it cannot be said that this was a petition by a proclaimed offender, yet the fact remains that at the same time, he was working out for his remedy before the Sessions Court and JMFC Court. The Sessions Court though had noticed that the proclamation questioned by him in the Sessions Court was dismissed, has taken a lenient view that the offence alleged are not punishable with major punishment. While doing so, the Sessions Court lost cite of the matter that the petitioner was in his effort to circumvent the order of dismissal of the Revision petition by way of anticipatory bail. The Sessions Court conveniently omitted to discuss whether such hoodwinking movement of the accused deserved exercise of the discretionary jurisdiction of the Court under Section 437 of Cr.P.C. 9. Section 438 of Cr.P.C. which is a discretionary relief cannot come in aid of the persons who have escaped the service of summons and NBW, and knowingly avoiding the service of the process of the Court. If an accused against whom a proclamation is ordered, is permitted to approach the Court for a blanket of relief under Section 438 Cr.P.C., that will open a flood gate for the accused persons who are in the habit of avoiding process of the Court. In that view of the matter, the impugned order requires to be revisited, under the jurisdiction of Section 439(2) of Cr.P.C. However, the accused has already appeared before the jurisdictional Court. In that view of the matter, the impugned order requires to be revisited, under the jurisdiction of Section 439(2) of Cr.P.C. However, the accused has already appeared before the jurisdictional Court. Since it is submitted that an application under Section 437 is pending, the Trial Court shall adjudicate the said application independently, without being influenced by the anticipatory bail order granted by the Sessions Court. Until his bail petition under Section 437 of Cr.P.C. is adjudicated in accordance with law, he shall not be taken to custody. Accordingly, the petition is allowed. The anticipatory bail granted by the Sessions Court in favour of respondent No.1 in Crl. Misc. No. 25521/2017, is set aside.