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TMI Blog2020 (5) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... nature. Applicant and prosecutrix entered into wedlock through Hindu rites and rituals and copy of marriage certificate and photographs in this regard are attached with the application. 3. As per allegations on the pretext of marriage, alleged rape has been committed by applicant. Some amount has been transferred in favour of the prosecutrix by the applicant which reveals that both were in relationship. Even otherwise, on the pretext of marriage if physical intimacy developed then the same does not constitute offence of rape. In support of his submission, he relied upon the judgments of Apex Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and others, AIR 2019 SC 4010 and Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others, AIR 2019 SC 327. 4. It is further submitted that after registration of offence both tried to settle the matter and therefore, petition has been preferred under Section 482 of Cr.P.C. for compromise bearing M.Cr.C.No. 930/2020 which was dismissed as withdrawn on 28- 01-2020 because the allegations were of Section 376 of IPC also (in light of various judgments of Apex Court), therefore, compromise could not be given effect to. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulations, para 80 and the fact that several Farari Panchnamas (arrest memos) are being prepared against him for ensuring his appearance but he did not submit, therefore, he is absconding and therefore his bail application be dismissed accordingly. He relied upon the judgment of Hon'ble Apex Court in the matter of Lavesh (supra) and Pradeep Sharma (supra). 8. Learned counsel for the complainant also matched the vehemence of counsel for the State and submitted that the applicant developed physical intimacy with the prosecutrix under the pretext of solemnization of marriage and on the promise of giving land and flat to the prosecutrix. On 16-11- 2019 he solemnized marriage with the prosecutrix without giving divorce to his first wife and committed rape on 11-12- 2019. Previously also he committed rape over her on 26/27-10- 2019. He is a proclaimed offender under Section 82 of Cr.P.C. therefore, as per the judgments of Lavesh (supra) and Pradeep Sharma (supra), he cannot be given the benefit of grant of anticipatory bail. Learned counsel for the complainant also raised the question of maintainability of the application under Section 438 of Cr.P.C. in view of the above referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred various judgments to bring home the fact that personal liberty of an individual by way of seeking anticipatory bail can be considered even after filing of charge-sheet. 14. Shri V.D. Sharma, learned amicus curiae also placed his submission while taking history of Section 438 of Cr.P.C. by referring Law Commission of India report 41st of year 1969 which categorically recommended for insertion of provision of anticipatory bail in the old Cr.P.C. of 1898 (earlier provision Section 497-A) and by virtue of same, Section 438 of Cr.P.C. of 1973 is offspring of said report. He referred Law Commission of India report No.203 of the year 2005 and Law Commission of India report No.268 of the year 2017 which deal with the developments, difficulties and proposed amendments in respect of anticipatory bail. He referred definition of 'Absconder' and relied upon the judgments in support of his submissions rendered by Apex Court in the matter of Sunil Clifford Daniel Vs. State of Punjab, (2012) 11 SCC 205, Sujit Biswas Vs. State of Assam, 2013 Cr.L.J. 3140 and the judgment rendered by Madras High Court in the matter of KTMS Abdul Kader Vs. Union of India, 1977 Cri.L.J. 1708. Through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual: "15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, this Court cuts down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if this Court were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional challenge by reading words in it which are not be found therein." 19. Similarly, the Apex Court in the case of Bharat Chaudhary and another Vs. State of Bihar and another, (2003) 8 SCC 77 has held in categorical terms that even after taking cognizance of complaint by the trial Court or after filing of charge-sheet by the Investigating Agency, a person can move an application for anticipatory bail and Section 438 of Cr.P.C. nowhere prohibits the Court concerned from grant of anticipatory bail in appropriate case. Relevant extract is reproduced as under: "7. From the perusal of this part of Section 438 of the Crl. P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of Section 438is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The grav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a person under Section 438 of Cr.P.C. and life of anticipatory bail. Questions were as follows: "(1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court." 22. Although questions were having mixed trappings vis a vis present set of facts but reason and conclusion drawn by the Constitution Bench appears to be of great over this Court, relevant extract are reproduced as under: "47. At this stage, it would be essential to clear the air on the observations made in some of the later cases about whether Section 438 is an essential element of Article 21. Some judgments, notably Ram Kishna Balothia & Anr. (supra) and Jai Prakash Singh v State of Bihar held that the provision for anticipatory bail is not an essential ingredient of Article 21, particularly in the context of imposition of limitations on the discretion of the courts while granting anticipatory bail, either limiting the relief in point of time, or some other restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely- i- the nature and gravity of the accusation; ii- the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii- the possibility of the applicant to flee from justice; and. iv- where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , relevant para of judgment passed in Lavesh (supra) is reproduced for ready reference: "From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". 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 82of the Code is not entitled the relief of anticipatory bail." 28. 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. Perusal of Section 438 of Cr.P.C. makes it very clear that four factors as enumerated into Section 438(1) of Cr.P.C. contemplates four different exigencies in which factor (iii) refers the "possibility of the applicant to flee from justice" and consequence to this factor is 'Abconsion of person' or 'his Concealment' from Investigating Agency. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 84 (at the instance of any person other then proclaimed offender having interest in the attach property), Section 85 (at the instance of proclaimed offender himself) and Section 86 [Appeal against the order (under Section 85 rejecting application for restoration of attach property]. Even Section 84 (4) of Cr.P.C. gives power to the objector to institute a suit to establish the right which he claims in respect of property in dispute. Therefore, all these provisions render the proceedings under Section 82/83 of Cr.P.C. transient or intermediary and on the basis of transient provision, 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. 32. Therefore, submission of learned counsel for the complainant lacks merits so far as maintainability of application under Section 438 of Cr.P.C. qua Section 82 of Cr.P.C. is concerned. Even otherwise in the present case, proceedings under Section 82 of Cr.P.C. are not given effect to yet (as per case-diary) and onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of his arrest on his furnishing personal bond in the sum of Rs.1,00,000/- (Rs. One Lac Only) to the satisfaction of Arresting Authority/Investigating Officer and he shall download the Arogya Setu App. Bail bond shall be furnished within one and half month as and when situation moves out of Lock-down. This order will remain operative subject to compliance of the following conditions by the applicant:- 1. The applicant will comply with all the terms and conditions of the bond executed by him; 2. The applicant will cooperate in the investigation/trial, as the case may be; 3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be. 4. The applicant will not commit an offence similar to the offence of which he is accused; 5. The applicant will not seek unnecessary adjournments during the trial; and 6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be. 7. Applicant would not be source of harassment and emba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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