Code of Criminal Procedure, 1973 – s.438 and s.82 – Application for anticipatory bail was filed in November 2022 and brought up for hearing on 04.04.2023, on which it was dismissed – Meanwhile, proclamation was issued u/s. 82 Cr.P.C. on 04.01.2023 and thereafter process u/s.83 Cr.P.C. was initiated on 15.03.2023 – 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 u/s. 82, Cr.P.C., is unsustainable – Propriety: Held: In view of the proviso u/s. 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 – The appellants cannot be heard to contend that the application for anticipatory bail filed in November, 2022 could not have been adjourned without passing interim order – At any rate, the said application was rejected on 04.04.2023 –Pending the application for anticipatory bail, in the absence of an interim protection, if a police officer can arrest the accused concerned how can it be contented that the court which issued summons on account of non-obedience to comply with its order for appearance and then issuing warrant of arrest cannot proceed further in terms of the provisions u/s. 82, Cr.PC, merely because of the pendency of an application for anticipatory bail – If the said position is accepted the same would be adopted as a ruse to escape from the impact and consequences of issuance of warrant for arrest and also from the issuance of proclamation u/s. 82, Cr.PC, by filing successive applications for anticipatory bail – It is made clear that in the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps u/s. 83, Cr.PC, in accordance with law. [Para 23] Code of Criminal Procedure, 1973 – s. 438 and s.82 – Various orders by trial Court – Issuance of non-bailable warrants – Disobedience by the conduct – Proclamation issued u/s. 82 – Appellants sought pre-arrest bail – Whether appellants were entitled to pre-arrest bail:
Held: The facts 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-accused, after the issuance of bailable warrants, applied and obtained regular bail – Though the appellants filed an application, which they themselves described as “bail-cum-surrender application” on 23.08.2022, they got it withdrawn on the fear of being arrested – Even after the issuance of non-bailable warrants on 03.11.2022 they did not care to appear before the Trial Court and did not apply for regular bail after its recalling – It is a fact that even after coming to know about the proclamation u/s. 82 Cr.PC., they did not take any steps to challenge the same or to enter appearance before the Trial Court to avert the consequences – Considering the conduct of the appellants, there is no hesitation to hold that they are not entitled to seek the benefit of pre-arrest bail. [Para 16] Code of Criminal Procedure, 1973 – s.82 – Non-attendance in obedience to proclamation u/s. 82 Cr.P.C. – Filing of an anticipatory bail application through an advocate – Whether filing of such application through advocate could be treated as appearance before the Court:
Held: The view taken by the Gujarat High Court in Savitaben Govindbhai Patel & Ors. v. State of Gujarat is approved that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings (u/ss.82/83 of Cr.P.C.) are instituted. [Paras 19 and 20]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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