No 'Absolute Prohibition' To Consider Anticipatory Bail Plea Of Accused Facing Arrest Warrant/ Proclamation U/S 82 CrPC: Allahabad HC

The Allahabad High Court has observed that there is no 'absolute prohibition' against considering an application for anticipatory bail filed by an accused against whom a warrant of arrest or a proclamation under Section 82 CrPC has been issued. It added that the court is empowered to consider the merits of the case in extremely exceptional cases in the interest of justice. This ruling by a bench of Justice Subhash Vidyarthi assumes significance as recently the Supreme Court, in Srikant Upadhyay vs State Of Bihar 2024 LiveLaw (SC) 232 [Bench of Justices C.T. Ravikumar and Sanjay Kumar], ruled that an accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under Section 82(1) CrPC is pending against him. Though the single judge took into account the ruling of the Top Court in the Srikant Upadhyay case (supra), he noted that the Apex Court passed this judgment following the 2010 Judgment in HDFC Bank Ltd. v. J.J. Mannan 2009, which was overruled in Sushila Aggarwal v. State (NCT of Delhi) 2020. “Apparently, the judgment in the case of Srikant Upadhyay has been passed after following the law laid down in the overruled judgment in the case of HDFC Bank (Supra) that anticipatory bail can be granted only in exceptional cases. The law laid down by the five Judge Bench of the Supreme Court in the subsequent judgment in the case of Sushila Aggarwal (Supra) will govern the field but it has not been considered in Srikant Upadhyay (Supra),” Justice Vidyarthi observed. However, he added that even in the Shrikant Upadhyay case, the Top Court has left a scope for the Courts to consider anticipatory bail pleas at its discretion, depending on the facts and circumstances of each case. The Court quoted the following para from the Supreme Court's 2024 judgment: “At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice” [For context, in the HDFC Case, the Supreme Court held that Section 438 CrPC cannot be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if a charge sheet is filed against him. In this case, it was observed that S. 438 CrPC IS an exceptional power and should be exercised only in exceptional cases and not as a matter of course. However, in Sushila Aggarwal's case, the SC's view was that no time limit could be set while granting anticipatory bail, and it could continue even until the end of the trial. It was also held that mere subsequent event of the filing of a charge sheet cannot compel the accused to surrender and seek regular bail] The High Court was essentially dealing with a plea moved by one Ankur Agarwal seeking anticipatory bail in connection with an FIR lodged under Sections 419, 420, 467, 468, 471 & 129-B IPC. The FIR was registered by a Lekhpal on September 15, 2023, against seven individuals, including the applicant alleging that co-accused Jawahar Lal executed two registered agreements in favour of co-accused Amit Agarwal to sell a piece of government land which is recorded as banjar in the revenue records. It was further alleged that another co-accused, Rajmangal Mishra, executed a registered agreement in March 2022 to sell a part of the aforesaid land to the applicant-accused. The applicant moved the HC after the Sessions Court dismissed his anticipatory bail plea on November 16, 2023. In support of his bail application, the applicant's counsel claimed innocence, arguing that he was falsely implicated in the case. It was also submitted that the applicant-accused had presented a plaint in October 3, 2023, seeking to cancel the March 11 agreement. The bench was also apprised that co-accused Jawahar Lal has already been granted bail, and the other co-accused have received anticipatory bail. On the other hand, the counsel for the State opposed the anticipatory bail application on the grounds that that proceedings under Section 82 CrPC have already been initiated against the applicant in August 2023 and, therefore, in view of the law laid down by the Supreme Court in the case of Lavesh versus State (NCT of Delhi) 2012 and Srikant Upadhyay, his plea was liable to be dismissed. Against this backdrop, the Court, at the outset, noted that the agreement in question does not specify that possession was transferred and that the applicant has already filed a civil suit to cancel the agreement after he discovered the seller was not the legitimate tenure holder and acted fraudulently. It also noted that a non-bailable warrant of arrest was issued against the applicant on June 15, 2024, and proceedings under Section 82 CrPC were initiated against him on August 16, 2024, when all the co-accused persons had...

No 'Absolute Prohibition' To Consider Anticipatory Bail Plea Of Accused Facing Arrest Warrant/ Proclamation U/S 82 CrPC: Allahabad HC

Sparsh Upadhyay

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