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2021 DIGILAW 540 (MP)

KANTABAI w/o ASHOK BHANDARI v. STATE OF M. P.

2021-07-07

SUBODH ABHYANKAR

body2021
ORDER : – This is applicant’s (repeat) second application under section 438 of Criminal Procedure Code, 1973 for grant of anticipatory bail, as the present applicant is apprehending his/her arrest in connection with Crime No. 391/2019 registered at Police Station Rajgarh, Tahsil Sardarpur District Dhar (MP) for offence punishable under sections 409 and 420 read with section 34 of the Indian Penal Code, 1860. The earlier anticipatory bail application of the applicant Miscellaneous Criminal Case No. 9537/2020 was dismissed on 3-3-2020 by this Court as not pressed, as the counsel had no instructions. 2. In brief, the facts of the case are that one Rajesh Victor, an Accounts Officer of the Co-operative Department, Dhar lodged an FIR on 30-8-2019 against the Office Bearers of Shri Rajendra Suri Sakh Sahakari Sanstha Maryadit Rajgarh for serious financial irregularities committed by them in disbursing the loan amount to its members and also while obtaining the Fixed Deposits from its Members. The amount runs into crores of rupees. Admittedly against the present applicant a proclamation has already been issued under section 82 of the Code of Criminal Procedure, 1973. 3. Shri Rathi has also submitted that the applicant is not declared as a proclaimed offender under section 82(4) of Criminal Procedure Code which is a prerequisite to declare a person a proclaimed offender as the applicant has not been charged with any of the sections as provide under section 82(4) of Criminal Procedure Code which include sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860) as the applicant is charged under sections 409 and 420 read with section 34 of Indian Penal Code only. In support of his contentions, Shri Rathi has relied upon the following decisions : – 1. Sanjay Sarin vs. State (Union Territory, Chandigarh), reported as (2013) Cri.L.J. 408, 2. Rahul Dutta vs. State of Haryana, reported as 2012(2) R.C.R. (Criminal) 585, 3. Rishabh Seth vs. State of Rajasthan and another, decision dated 8-3-2018 in Criminal Miscellaneous (Petition) No. 5767/2017 of Rajasthan High Court (Jaipur Bench) and 4. Satinder Singh vs. State of U. T. Chandigarh and another, reported as 2011(2) R.C.R. (Criminal) 89. 4. Learned counsel for the respondent/State, on the other hand, has opposed the prayer. 5. Rishabh Seth vs. State of Rajasthan and another, decision dated 8-3-2018 in Criminal Miscellaneous (Petition) No. 5767/2017 of Rajasthan High Court (Jaipur Bench) and 4. Satinder Singh vs. State of U. T. Chandigarh and another, reported as 2011(2) R.C.R. (Criminal) 89. 4. Learned counsel for the respondent/State, on the other hand, has opposed the prayer. 5. On due consideration of the rival submissions and on perusal of the case diary including the documents filed by the applicant, this Court finds that, against the applicant the proclamation proceedings under section 82 of the Code of Criminal Procedure, 1973 have already been concluded on 10-2-2020. Since it has not been challenged, it has already attained the finality and as such the correctness of the same cannot be gone into in this bail application. So far as the contentions raised by Shri Rathi that an accused can be declared as proclaimed offender only in terms of section 82(4) of Criminal Procedure Code is concerned, this Court does not find any merits in said claim, this is for the reasons that even when a proclamation is made under section 82(1) of Criminal Procedure Code, it is also a declaration that the accused has absconded and against whom a publication is made. The procedure adopted under section 82(4) of Criminal Procedure Code is no different than the procedure adopted under section 82(1) of Criminal Procedure Code. The only difference is the penal provisions for the same as provided under section 174-A of Indian Penal Code which reads as under : – “174-A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974. – Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.]” 6. Thus, this Court finds that the distinction between section 82(4) and section 82(1) of Criminal Procedure Code is that under section 82(4), the sections of Indian Penal Code which have been enumerated are 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 only and although the reason behind this classification is not known, for the violation of section 82(4) of Criminal Procedure Code the imprisonment is upto seven years and fine, whereas, all the other offences, excepting those provided under section 82(4) of Indian Penal Code have penal consequences of imprisonment upto 3 years and fine only and such offences would include, inter alia, section 498-A, 304-B of Indian Penal Code. This analogy is also vindicated by the decision in the case of Lavesh vs. State (NCT of Delhi), reported in (2012) 8 SCC 73 which is not a case under any of the sections as provided under section 82(4) of Criminal Procedure Code which can be ascertained from the facts of that case, the relevant para of Lavesh (supra) reads as under : – “3. On 19-1-2010, the younger brother of the appellant got married to Vibha (since deceased). He lived with his wife on the first floor of the same house. On 1-9-2011, Vibha committed suicide. On the same day, the mother of the deceased lodged a complaint against the family members of the husband of the deceased with Police Station Punjabi Bagh, New Delhi. 4. On the basis of the complaint, an FIR was registered vide No. 259 of 2011 at Punjabi Bagh Police Station. On the same day, the husband and the mother-in-law of the deceased were arrested. The appellant herein moved an application for anticipatory bail. The Additional Sessions Judge, Delhi, by order dated 5-11-2011, dismissed the said application. xxxxxxxxxxxxxxxxxxxx 10. According to the prosecution, if we look into all the above particulars coupled with the supplementary statements, it has been clearly made out, particularly, insofar as the appellant is concerned, that there was a definite allegation against him. Further, the appellant and other family members subjected the deceased to cruelty with a view to demand dowry, right from the date of marriage and also immediately before the date of her death.” (emphasis supplied) 7. Further, the appellant and other family members subjected the deceased to cruelty with a view to demand dowry, right from the date of marriage and also immediately before the date of her death.” (emphasis supplied) 7. Apparent from the above, the offences in the Lavesh’s case were under section 498-A/304-B of Indian Penal Code, which has also been verified by this Court from the original order passed by the Delhi High Court itself in the case of Lavesh vs. State NCT of Delhi, passed in Bail Application No. 1602/2011 dated 5-12-2011. Interestingly, both these sections are not to be found under section 82(4) of Indian Penal Code which includes sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of Indian Penal Code, in such circumstances, it only leads to one and only logical conclusion that in Lavesh’s case, the Supreme Court has not distinguished between a proclamation under section 82(1) of Criminal Procedure Code and section 82(4) of Criminal Procedure Code and the general principle that appears is that for the purposes of an anticipatory bail, a proclaimed offender also includes an offender or a proclaimed person against whom a proclamation under section 82(1) of Criminal Procedure Code has also been issued. 8. The decisions relied upon by Shri Rathi, viz.: – 1. Sanjay Sarin vs. State (Union Territory, Chandigarh), 2. Rahul Dutta vs. State of Haryana, 3. Rishabh Seth vs. State of Rajasthan and another and 4. Satinder Singh vs. State of U. T. Chandigarh and another (supra); are also distinguishable as they only deal with the issue that whether any offender not falling under the purview of section 82(4) of Criminal Procedure Code can still be declared as proclaimed offender, but none of these decisions have dealt with an anticipatory bail under section 438 of Criminal Procedure Code and have dealt with the matter under section 482 of Criminal Procedure Code wherein only the correctness of an order passed by the trial Court under section 82(4) of Criminal Procedure Code was under challenge in which the trial Court had declared the offender as proclaimed offender under sections other than enumerated under section 82(4) of Criminal Procedure Code. Thus, on the aforementioned discussion, this Court is of the considered opinion that the contentions raised by Shri Rathi have no merits and are hereby rejected. 9. Thus, on the aforementioned discussion, this Court is of the considered opinion that the contentions raised by Shri Rathi have no merits and are hereby rejected. 9. This Court also finds that even otherwise, other co-accused persons’ application under section 482 of the Code of Criminal Procedure for quashing of the FIR, was dismissed by this Court in Miscellaneous Criminal Case No. 41268/2019 vide order dated 4-2-2020 and the same was challenged before the Supreme Court in Special Leave to Appeal (Criminal) No. 2579/2020 which also came to be dismissed on 17-6-2020, with the following observations : – “This Special Leave Petition arising out of High Court judgment for quashing of FIR is rejected. However, the petitioners are at liberty to take recourse to other appropriate remedies as may be permissible in law, including to apply for regular bail. No coercive action be taken against the petitioners for a period of two weeks to enable them to surrender before the concerned Court and apply for regular bail. If the petitioners give advance notice of 48 hours to the public prosecutor before moving the bail application, the trial Court may consider the bail application preferably on the same day. Needless to observe that the bail application be decided on its own merits without being influenced by any observation in the impugned judgment. All contentions and remedies available to the petitioners are left open. The Special Leave Petition is dismissed accordingly. Pending applications, if any, stand disposed of.” 10. Thus, the other accused persons who had filed the SLP have also got no relief from the Supreme Court except that they can surrender before the lower Court and apply for grant of regular bail before the lower Court. It is true that two weeks breathing time was granted to the petitioners but that was on 17-6-2020 and it has been more than one year since then. In such circumstances, in the present case, this Court is not inclined to allow the anticipatory bail application. Accordingly, Miscellaneous Criminal Case No. 4730/2021 is hereby dismissed. 11. Accordingly, Miscellaneous Criminal Case No. 4730/2021 is hereby dismissed. In such circumstances, in the present case, this Court is not inclined to allow the anticipatory bail application. Accordingly, Miscellaneous Criminal Case No. 4730/2021 is hereby dismissed. 11. Accordingly, Miscellaneous Criminal Case No. 4730/2021 is hereby dismissed. However, the applicant shall be at liberty to surrender before the trial Court; and if he/she surrenders before the trial Court within a period of one week from the date of receipt of certified copy of this order, then the same shall be decided by the learned Judge of the trial Court, in accordance with law as expeditiously as possible.