The Himachal Pradesh High Court has made it clear 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.
"Section 82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders," a Single Bench of Justice Anoop Chitkara has held.
The anticipatory bail application in the case at hand relates to an FIR registered against the Petitioner on July 19, 2013, accused of rape by a 15-yr-old girl.
The prosecution had submitted that the Court had issued Non-bailable Warrants against the Petitioner and upon its non-execution, he was declared as a proclaimed offender. Hence, the pre-arrest bail plea was not maintainable in terms of the Supreme Court's verdict in Lavesh v. State (NCT Of Delhi), (2012) 8 SCC 73.
In that case, the Apex Court had held "Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that 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 82 of the Code is not entitled the relief of anticipatory bail."
In State of Madhya Pradesh v. Pradeep Sharma, the Supreme Court reiterated that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
The Petitioner-accused on the other hand explained that he and the victim were in love and on noticing that the victim had an affair with another man, he felt ignominious and left for a distant place, far away from her, on June 20, 2013.
It was his case that he found out about the registration of a FIR against him and his declaration as a proclaimed offender only recently, when he was forced to return home amid the Lockdown. It was thus pleaded that the circumstances of the case were extraordinary, and relief should be granted.
The High Court agreed that the Petitioner's circumstances cannot be termed as 'normal' and therefore, he should be granted protection from arrest.
Giving clarity on the Laves's case (supra), Justice Chitkara said,
"In Lavesh's case (supra), while laying down the law on anticipatory bails to absconders, Hon'ble Supreme Court structured the pronouncement by the words, "Normally." An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013. After that, compelled by the lockdown, and fear created by the pandemic of COVID-19, returned home, where, for the first time, he came to know about the FIR and already declared as a proclaimed offender cannot be ruled out. Resultantly, the facts and circumstances are not normal."
"The legal maxim Domus sua cuique est tutissimum refugium, aptly describes the plight of the accused, which means every man's house is his safest refuge. Thus, the circumstances can not be termed as normal for the accused, and he makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty."
In May this year, Justice Anand Pathak of the Madhya Pradesh High Court had also observed that valuable right of personal liberty of an individual, at least to seek anticipatory bail, cannot be curtailed. It was held thus that an application under Section 438 of CrPC is maintainable even if a person has been declared as proclaimed offender in terms of Section 82.
Justice Pathak noted that in Lavesh's case (supra), the Top Court had that a proclaimed offender in terms of Section 82 of the Code is not "entitled" to the relief of anticipatory bail. He 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.
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."
Case Title: Mahender Kumar v. State of Himachal Pradesh