"No bar can exist against a person seeking anticipatory bail."
The Gwalior Bench of the Madhya Pradesh High Court on Tuesday observed that declaration of an accused as an "absconder" under Section 82 of CrPC does not preclude him from filing an application for seeking anticipatory bail.
The state government had contested the maintainability of the anticipatory bail application of a 40-yr-old man accused of committing rape on the pretext of marriage, on the ground that the accused was an absconder, required for investigation. The court was informed that the Superintendent of Police, Gwalior had announced a reward of Rs. 5,000/- over his arrest vide proclamation dated January 30, 2020.
Reliance was placed on Lavesh v. State (NCT Of Delhi), (2012) 8 SCC 73, whereby the Apex Court had held,
"when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82of the Code is not entitled the relief of anticipatory bail."
Absconder's application loses "entitlement", not "maintainability"
Giving an interpretation of this ruling, the bench of Justice Anand Pathak emphasized that the judgment does not talks about "maintainability" of anticipatory bail application after a person is declared absconder but, it merely suggests that the absconder loses "entitlement" to bail.
"The word 'Entitled' used in the above referred para of Lavesh (supra) itself suggests that it talks mainly about entitlement on merits and not about maintainability," he emphasized.
Elaborating on this aspect the court said,
"…according to Apex Court, a person who is proclaimed offender under Sections 82 and 83 of Cr.P.C. loses the sheen on merits to seek anticipatory bail. His application deserves dismissal on merits if he is declared as absconder under Section 82 of Cr.P.C. but application is certainly maintainable."
Personal liberty can't be curtailed on the basis of a transient provision
The court then pointed out that Sections 82 and 83 of CrPC are transient/interim/provisional in nature and subject to proceedings under Sections 84-86 of CrPC. It thus held, "valuable right of personal liberty of an individual at least to seek anticipatory bail cannot be curtailed. Therefore, on this count also, application under Section 438 of Cr.P.C. is maintainable even if a person has been declared as proclaimed offender in terms of Section 82 of Cr.P.C."
Anticipatory bail application maintainable until accused is arrested
The court reinforced the importance of personal liberty of an individual in terms of Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 SC 1632, and held that an application for anticipatory bail is maintainable until a person is arrested. It observed,
"The judgments pronounced by the Apex Court in the case of Lavesh and Pradeep Sharma (supra) nowhere bar the maintainability of the application under Section 438 of Cr.P.C. in wake of person being declared as absconder under Sections 82 and 83 of Cr.P.C. and understandably so because this would not have been in consonance with letter and spirit of Constitution Bench judgment of Apex Court pronounced in the case of Gurbaksh Singh Sibbia etc. (supra) and Sushila Aggarwal and others (supra) as well as two Judge Bench of Apex Court in the case of Bharat Chaudhary and another (supra) as well as Ravindra Saxena (supra) because these judgments categorically held that anticipatory bail is maintainable even after filing of charge-sheet and till the person is not arrested."
Mere declaration of cash-award for arrest doesn't give effect to Section 82
Coming to the facts of the case, the court noted that the Superintendent of Police had only declared a bounty on arrest of the applicant herein, and no process under Section 82 of CrPC was issued.
In this context the court observed,
"in the present case, proceedings under Section 82 of Cr.P.C. are not given effect to yet (as per case-diary) and only cash award of Rs.5,000/- by Superintendent of Police has been declared. Said factor can certainly be an important consideration while deciding anticipatory bail application but not having overriding effect to create a bar for filing anticipatory bail application.
Therefore, in the considered opinion of this Court, even if the police authority has declared award or prepared Farari Panchnama even then anticipatory bail application is maintainable, however, it is to be seen on merits that whether that application deserves to be considered and allowed as per the factors enumerated in Section 438 of Cr.P.C. itself and if any of those factors are not satisfied then the Court certainly has discretion to reject it. The said discretion has been given by Constitutional Bench decision of Hon'ble Apex Court in the case of Gurbaksh Singh Sibbia etc. (supra)."
Consideration on merits
The applicant-accused had been charged with alleged offences punishable under Sections 376, 386, 506 of IPC. It was the case of the prosecutrix that on the pretext of marriage, rape had been committed by the applicant, who is also allegedly married to someone else.
The court however noted that both the prosecutrix and the applicant were "mature" and had tried to reach to a compromise. "As submitted, both the parties earlier tried to settle the matter by filing petition under Section 482 of Cr.P.C. bearing No.930/2020. Therefore, both matured individuals waited the consequences of their decisions and both lived some days together comfortably," the court noted.
In these circumstances, the court relied on the Supreme Court ruling in Pramod Suryabhan Pawar v. State of Maharashtra & Ors., AIR 2019 SC 4010, and it held,
"Consensual proximity of Body and Soul cannot be used as a weapon to wreak vengeance at a later point of time when Body and Soul drift apart."
In the abovementioned case also, the top court had held that if physical intimacy is developed on the pretext of marriage, then the same does not constitute offence of rape.
Accordingly, the court allowed the anticipatory bail plea, without expressing any opinion on the merits of the case, on the accused furnishing personal bond in the sum of Rs.1,00,000/- to the satisfaction of Arresting Authority/Investigating Officer and downloading the Arogya Setu App.
Notably, there are dozens of such orders passed by the Madya Pradesh High Court, mandating the use of Aarogya Setu App by the accused released on bail, despite the recent debate about security and data protection concerns surrounding the app.
Case Title: Balveer Singh Bundela v. State of Madhya Pradesh
Case No.: Miscellaneous Criminal Case No.5621/2020
Quorum: Justice Anand Pathak
Appearance: Advocate Ankur Maheshwari (for Applicant); R.S. Bansal, PP (for State); Advocates Awdhesh Singh Tomar and Sangeeta Pachori (for Complainant); V.K. Saxena, senior counsel with Advocates Rajesh Kumar Shukla, Shri Atul Gupta and Shri S.K. Shrivastava; and V.D. Sharma, amicus curiae.
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