Absconding Accused Cannot Ordinarily Claim Anticipatory Bail: J&K&L High Court Rejects Rape Accused's Plea

Justice Sanjay Dhar dismissed the anticipatory bail application filed by Rajat Kumar in a rape case, observing that “a person continuously defying orders and keep absconding is not entitled to concession of bail.”

The Court further held that the petitioner had failed to demonstrate any exceptional circumstances warranting the High Court's direct intervention, particularly when he had neither approached the Sessions Court for anticipatory bail nor disclosed his present address in the application.

Before examining the merits of the application, the Court considered whether the petitioner could directly invoke the High Court's jurisdiction for anticipatory bail without first approaching the Sessions Court.

Referring to the Supreme Court's decisions in Jagdeo Prasad v. State of Bihar and Mohammed Rasal C. v. State of Kerala, the Court observed that although the High Court and the Sessions Court have concurrent jurisdiction to entertain anticipatory bail applications, the ordinary course is for an accused to first approach the Sessions Court.

The Court clarified that this rule is not inflexible and that a direct approach may be permitted in exceptional circumstances.

However, applying this principle to the case, Justice Dhar observed,

“Merely because, the petitioner may be presently residing at a place outside the Union Territory of Jammu and Kashmir is not a good enough ground to approach the High Court directly.”

The Court also noted that the petitioner had not disclosed his present address in the application and had continued to furnish his address as a resident of Village Kohag, Tehsil Billawar, District Kathua.

Finding no compelling reason for bypassing the Sessions Court, the Court held that the application could not be entertained directly. Declared Proclaimed Offender After Failing To Join Investigation

The case arose from FIR registered at Police Station Billawar under Section 376 of the Indian Penal Code. According to the prosecution, the complainant alleged that the accused had sexually assaulted her in a maize field.

During the investigation, the prosecutrix's statement was recorded before a Magistrate, and her school records indicated that she was a minor at the time of the alleged incident. The investigating agency subsequently filed a chargesheet before the Principal Sessions Judge, Kathua, invoking Sections 4 and 6 of the Protection of Children from Sexual Offences (POCSO) Act as well.

The prosecution alleged that the accused had absconded after the incident and could not be apprehended despite efforts to trace him across Jammu and Kashmir. The Sessions Court thereafter declared him a proclaimed offender and directed the issuance of general warrants of arrest. Proceedings under Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023, were also initiated against him.

The petitioner contended that the fact that he had been declared an absconder could not, by itself, disentitle him to anticipatory bail.

Rejecting the plea, the High Court observed that the petitioner's failure to join the investigation over the years, coupled with his status as a proclaimed offender, constituted a strong reason to deny him pre-arrest protection.

The Court stated,

“Apart from the above, the fact that the petitioner has been declared absconder and has not joined the investigation during all these years, becomes a strong reason to decline the concession of anticipatory bail in his favour.”

The petitioner also argued that the investigating agency had not issued him any notice, suggesting that he had no occasion to appear before it.

The High Court noted, however, that the investigating agency had placed material before the Sessions Court and recorded statements of police officials who had undertaken searches to trace the petitioner.

On the basis of that material, the Sessions Court had recorded its satisfaction that the petitioner had absconded and had failed to respond to notices issued by the investigating agency.

In these circumstances, Justice Dhar rejected the petitioner's claim that he was unaware of the criminal case registered against him.

Referring to Lavesh, the Court reproduced the Supreme Court's observation,

“Normally, when the accused is 'absconding' and declared as a 'proclaimed offender', there is no question of granting anticipatory bail.”

Applying these principles, the High Court held that the petitioner had failed to establish any exceptional circumstances warranting anticipatory bail despite having been declared a proclaimed offender.