Anticipatory Bail for Proclaimed Offenders: The Evolution of Law

For a considerable period of time, the law relating to anticipatory bail in cases where an accused had been declared a proclaimed offender appeared to be settled—almost rigidly so. Courts across the country routinely dismissed applications under Section 438 CrPC once proclamation proceedings were brought to their notice. The declaration of an accused as a proclaimed offender came to be treated as a near-absolute bar to the exercise of anticipatory bail jurisdiction. The focus of judicial scrutiny thus shifted away from the underlying facts of the case to the mere existence of a proclamation order. In practice, this resulted in a largely automatic and mechanical denial of relief, with limited engagement on the facts of the case, the conduct of the accused or the circumstances leading to such declaration.

This approach traces its roots to the decision of the Supreme Court in State (NCT of Delhi) v. Lavesh ¹, where the Court held that a person who has been declared a proclaimed offender is not entitled to the relief of anticipatory bail. The principle was subsequently reaffirmed in State of Madhya Pradesh v. Pradeep Sharma ², and later echoed in Srikant Upadhyay & Ors. v. State of Bihar ³.

Following these judgments, the grant of anticipatory bail to a proclaimed offender came to be treated as an almost settled bar. Courts rarely ventured beyond the fact of proclamation itself, and the jurisdiction under Section 438 CrPC was effectively curtailed in such cases. Trial courts and High Courts alike treated the embargo as complete, rarely examining the facts beyond the proclamation itself.

However, criminal law, by its very nature, does not remain static.

In late 2024, a significant shift was visible in the judgment authored by Hon'ble Mr. Justice M.M. Sundresh in Asha Dubey v. State of Madhya Pradesh⁴. The Supreme Court carefully distinguished Pradeep Sharma and clarified that the earlier decisions could not be read as creating an absolute and inflexible bar on the grant of anticipatory bail merely because an accused had been declared a proclaimed offender. The Court granted anticipatory bail, signalling that the jurisdiction under Section 438 CrPC must remain fact-sensitive and constitutionally informed.

Importantly, the decision in Asha Dubey restores the centrality of judicial discretion under Section 438 CrPC. The Supreme Court did not dilute the seriousness of proclamation proceedings; rather, it clarified that such proceedings cannot operate as a jurisdictional bar divorced from context. The Court's reasoning implicitly recognises that proclamation may, in certain cases, be a consequence of procedural lapses, delayed knowledge of proceedings, or bona fide disputes regarding appearance. By insisting on a fact-based assessment, the judgment re-anchors anticipatory bail within the constitutional guarantee of personal liberty, ensuring that the remedy does not stand extinguished merely by the invocation of a procedural label.

This reasoning soon found resonance at the High Court level. A Division Bench of the Madhya Pradesh High Court, in Deepankar Vishwas v. State of Madhya Pradesh⁵, expressly held that an application for anticipatory bail is maintainable even where proclamation proceedings have been initiated and an accused has been declared a proclaimed offender.

More recently, the Delhi High Court, in Shamshad v. State (NCT of Delhi)⁶, followed the ratio of Asha Dubey and granted anticipatory bail to an accused despite being declared as a proclaimed offender—marking a first-of-its-kind judgment by the Court on this issue.

Taken together, these decisions signal a shift away from formulaic exclusions towards a principled application of criminal procedure. The courts have begun to emphasise that proclamation is intended to secure the presence of the accused, not to foreclose access to judicial remedies. This approach preserves the presumption of innocence and prevents the anticipatory bail jurisdiction from being rendered illusory in deserving cases. Importantly, it does not confer immunity on proclaimed offenders, but merely ensures that the court retains the ability to examine whether the facts justify protection from arrest, consistent with the object and spirit of Section 438 CrPC.

Significantly, at the core of this evolving jurisprudence lies the statutory framework itself. Section 438 CrPC is premised on the “anticipation of arrest.” It does not carve out any exception excluding proclaimed offenders from its ambit. Significantly, when the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force, Section 482 BNSS retained the same legislative philosophy. The legislature, despite being fully aware of prior judicial interpretations, consciously chose not to insert any embargo disentitling a proclaimed offender from seeking anticipatory bail.

This legislative silence is not accidental. It reinforces the principle that anticipatory bail jurisdiction cannot be curtailed by judicially created prohibitions where the statute itself imposes none.

The recent decisions indicate a welcome course correction—one that recognises that proclamation proceedings are procedural tools to secure presence, not punitive devices to permanently eclipse personal liberty. As criminal law continues to evolve, courts appear to be reasserting that liberty cannot be sacrificed at the altar of rigid formulas.

References

1. State (NCT of Delhi) v. Lavesh, (2012) 8 SCC 730

2. State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 730

3. Srikant Upadhyay & Ors. v. State of Bihar, 2024 LiveLaw (SC) 232

4. Asha Dubey v. State of Madhya Pradesh, 2024 LiveLaw (SC) 889

5. Deepankar Vishwas v. State of Madhya Pradesh, 2025 Livelaw(MP) 42

6. Shamshad v. State (NCT of Delhi), Delhi High Court, Bail App. No. 3286/25

The author is an Advocate Practising At Supreme Court of India and High Court of Delhi. Views Are Personal