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TMI Blog2024 (3) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... 354, 354 (B), 379, 504, 506 and 149 of the Indian Penal Code, 1860 (for short, 'IPC') and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999 (for short, 'the Daain Act'). 2. Heard, Mr. Basant R., learned Senior Counsel for the appellants and Mr. Anshul Narayan, learned counsel for the respondent-State. 3. The question of seminal importance that arises for consideration can better be explained and understood by referring to a decision of this Court in Prem Shankar Prasad v. State of Bihar and Anr. [(2022) 14 SCC 516], which was rendered after referring to the earlier decisions of this Court in State of Madhya Pradesh v. Pradeep Sharma [(2014) 2 SCC 171] and Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730]. In Lavesh's case (supra), this Court held in paragraph 12 thus: - "12. 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 conceali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despite the pendency of non-bailable warrant, the pending application for anticipatory bail is liable to be considered on its own merits and at any rate, on the aforesaid grounds the pending application of prearrest bail could not be dismissed. 7. Per contra, the learned counsel appearing for the State vehemently opposed the proposition(s) mooted on behalf of the appellants. It is submitted that the issuance of non-bailable warrant and initiation of the proceedings under Section 82, Cr.PC are justiciable. Certainly, in the absence of an interim protection, there can be no legal trammel for issuing non-bailable warrant or for initiating proceedings under Section 82, Cr. PC. merely because of the pendency of an application for anticipatory bail though more often than not, under such circumstances subordinate Courts would wait for orders of the High Court. It be so, existence of any such circumstance would disentitle a person to press for pre-arrest bail. Even a pending application is not maintainable, it is contended. 8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation." 11. The use of expression 'reason to believe' employed in Section 82 (1) Cr. PC would suggest that the Magistrate concerned must be subjectively satisfied that the person concerned has absconded or has concealed himself. In the context of Section 82, Cr. PC, we will have to understand the importance of the term 'absconded'. Its etymological and ordinary sense is that one who is hiding himself or concealing himself and avoiding arrest. Since the legality of the proceedings under Section 82, Cr. PC is not under challenge, we need not go into that question. As noticed above, the nub of the contentions is that pending the application for pre-arrest bail, proclamation under Section 82, Cr.P.C., should not have been issued and at any rate, its issuance shall not be a reason for declining to consider such application on merits. Bearing in mind the position of law revealed from the decisions referred to hereinbefore and the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leting the investigation, charge sheet was filed on 08.08.2022 only for offences under Sections 341, 323 and 504 IPC, that too only against accused Lakhpati Kunwar (accused No. 7). However, the learned Trial Court, on perusal of the FIR, charge sheet and case diary found that sufficient materials are available in the case diary to proceed against the other 12 accused, including the appellants herein and accordingly vide order dated 20.02.2021 took cognizance of the offences under Sections 341, 323, 354B, IPC and Section 3/4 of the Daain Act and issued summons to all accused including the appellants and fixed 12.04.2022 as the date for their appearance. The accused were absent on that day and hence on 12.04.2022, the Trial Court issued bailable warrants. On 25.05.2022, the accused, other than the appellants herein, appeared and applied for regular bail before the Trial Court and the Trial Court granted them regular bail. Subsequently, the complainant/the second respondent herein, applied for cancellation of bail granted to them and as per the order dated 09.06.2022 the grantees of bail were issued with show cause notices. Upon receiving the notice for cancellation of bail, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly taking note of the proceedings under Sections 82/83, Cr. PC and observing that owing to such developments the application for pre-arrest bail could not be maintained. 15. The core contention of the appellants is that the rejection of the application for anticipatory bail without considering the application on merits for the reason of issuance of proclamation under Section 82, Cr. PC, is unsustainable. It is the further contended that at no stage, the appellants were "evading the arrest" or "absconding" but were only exercising their legal right to seek anticipatory bail. It is in the aforesaid circumstances that the learned Senior Counsel appearing for the appellants raised the contention that when an application for anticipatory bail is pending, the issuance of proclamation, following issuance of nonbailable warrant could not be a reason for nonconsidering the application for anticipatory bail on merits. 16. For a proper consideration of the aforesaid contentions and allied questions, it is only appropriate to refer to certain provisions of law as also certain relevant decisions. From the chronology of events narrated hereinbefore, it is evident that for reasons best known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. 21. "Public servant".-The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:- ... [Third.-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;] 174. Non-attendance in obedience to an order from public servant.-- Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when an application is filed for anticipatory bail, it cannot be adjourned without passing an order of interim protection. A bare perusal of Section 438 (1), Cr.PC, would reveal that taking into consideration the factors enumerated thereunder the Court may either reject the application forthwith or issue an interim order for the grant of anticipatory bail. The proviso thereunder would reveal that if the High Court or, the Court of Sessions, as the case may be, did not pass an interim order under this Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest the person concerned without warrant, on the basis of the accusation apprehended in such application. In view of the proviso under Section 438(1), Cr.PC, it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail. In short, nothing prevents the court from adjourning such an application without passing an interim order. This question was considered in detail by a Single Bench of the High Court of Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. 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. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant. 25. The factual narration made hereinbefore would reveal the consistent disobedience of the appellants to comply with the orders of the trial Court. They failed to appear before the Trial Court after the receipt of the summons, and then after the issuance of bailable warrants even when their co-accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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