Srikant Upadhyay vs The State Of Bihar

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. of 2024 (@Special Leave Petition (Crl.) No.7940 of 2023)

Srikant Upadhyay & Ors. …Appellants Versus State of Bihar & Anr. …Respondents JUDGMENT

C.T. RAVIKUMAR, J.

Leave granted.

1. This appeal is directed against the order dated

04.04.2023 in CRLM No.67668 of 2022 passed by the High

Court of Judicature at Patna whereby and whereunder

the application for anticipatory bail filed by the appellant

was dismissed. The pre-arrest bail application was

moved in connection with FIR No.79 of 2020, registered

Signature Not Verified against him and co-accused at Govidganj, Police Station, Digitally signed by VARSHA MENDIRATTA

District East Champaran, Bihar, under Sections 341, 323, Date: 2024.03.14 16:08:39 IST Reason:

Special Leave Petition (Crl.) 7940 of 2023 Page 1 of 33

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.1, which was rendered

after referring to the earlier decisions of this Court in

State of Madhya Pradesh v. Pradeep Sharma2 and

Lavesh v. State (NCT of Delhi)3. 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

1 (2022) 14 SCC 516 2 (2014) 2 SCC 171 3 (2012) 8 SCC 730

Special Leave Petition (Crl.) 7940 of 2023 Page 2 of 33 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 82 of the Code he is not entitled to the relief of anticipatory bail.” (Underline supplied)

4. In the decision in Pradeep Sharma’s case (supra)

this Court held that if anyone is declared as an

absconder/proclaimed offender in terms of Section 82

Cr.PC., he is not entitled to relief of anticipatory bail.

After extracting Section 438, Cr.PC., it was further held

therein thus:-

“The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a

Special Leave Petition (Crl.) 7940 of 2023 Page 3 of 33 person accused of an offence is not likely to otherwise misuse his liberty.”

5. In Prem Shankar Prasad’s case (supra), this Court

took note of the fact that the respondent-accused was

absconding and concealing himself to avoid service of

warrant of arrest and the proceedings under Sections

82/83, Cr.PC have been initiated against him, set aside

the order of the High Court granting anticipatory bail

ignoring the proceedings under Sections 82/83, Cr.PC.

Thus, it is obvious that the position of law, which was

being followed with alacrity, is that in cases where an

accused against whom non-bailable warrant is pending

and the process of proclamation under Sections 82/83,

Cr.PC is issued, is not entitled to the relief of anticipatory

bail.

6. The learned Senior Counsel appearing for the

appellants-accused would contend that the well-nigh

settled position of law in respect of pre-arrest bail as

above, is inapplicable in a case where a person

Special Leave Petition (Crl.) 7940 of 2023 Page 4 of 33 apprehending arrest has already filed an application

seeking anticipatory bail and it is pending sans any

interim orders and during its pendency if the Trial Court

issues proclamation under Section 82, Cr.PC. In short,

the proposition of law raised is – when an application

seeking anticipatory bail filed by a person

apprehending arrest is pending without any interim

protection, whether initiation of proceeding for issuance

of proclamation under Section 82, Cr. PC would make

that application worthy for further consideration on its

own merits? According to the learned Senior Counsel

appearing for the appellants even in such envisaged

circumstances and 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 pre-

arrest bail could not be dismissed.

Special Leave Petition (Crl.) 7940 of 2023 Page 5 of 33

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

Special Leave Petition (Crl.) 7940 of 2023 Page 6 of 33 cases where arrest is imperative in the facts and

circumstances of a case, the consistent view is that the

grant of anticipatory bail shall be restricted to

exceptional circumstances. In other words, the position

is that the power to grant anticipatory bail under Section

438, Cr. PC is an exceptional power and should be

exercised only in exceptional cases and not as a matter

of course. Its object is to ensure that a person should not

be harassed or humiliated in order to satisfy the grudge

or personal vendetta of the complainant. (See the

decision of this Court in HDFC Bank Ltd. v. J.J.Mannan

& Anr.4).

9. When a Court grants anticipatory bail what it

actually does is only to make an order that in the event of

arrest, the arrestee shall be released on bail, subject to

the terms and conditions. Taking note of the fact the said

power is to be exercised in exceptional circumstances

4 2010 (1) SCC 679

Special Leave Petition (Crl.) 7940 of 2023 Page 7 of 33 and that it may cause some hinderance to the normal flow

of investigation method when called upon to exercise the

power under Section 438, Cr.PC, courts must keep

reminded of the position that law aides only the abiding

and certainly not its resistant. By saying so, we mean that

a person, having subjected to investigation on a serious

offence and upon making out a case, is included in a

charge sheet or even after filing of a refer report, later,

in accordance with law, the Court issues a summons to a

person, he is bound to submit himself to the authority of

law. It only means that though he will still be at liberty,

rather, in his right, to take recourse to the legal remedies

available only in accordance with law, but not in its

defiance. We will dilate this discussion with reference

to the factual matrix of this case. However, we think that

before dealing with the same, a small deviation to have

a glance at the scope and application of the provisions

under Section 82, Cr.PC will not be inappropriate.

Special Leave Petition (Crl.) 7940 of 2023 Page 8 of 33

10. There can be little doubt with respect to the

position that the sine qua non for initiation of an action

under Section 82, Cr. PC is prior issuance of warrant of

arrest by the Court concerned. In that regard it is

relevant to refer to Section 82 (1), Cr. PC, which reads

thus: -

“82. Proclamation for person absconding. — (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has 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

Special Leave Petition (Crl.) 7940 of 2023 Page 9 of 33 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

positions of law, we will briefly refer to the factual

background of the case.

12. For considering the aforesaid proposition of law,

we think it absolutely unnecessary to deal with FIR No.

37 of 2018 dated 28.03.2018 filed against Respondent

No.2, Mr. Rajiv Kumar Upadhyay and four others, and

also FIR No.66 of 2018 registered against appellant No.4

Special Leave Petition (Crl.) 7940 of 2023 Page 10 of 33 (first accused) and four other family members of the

appellants. Civil Suit No.140 of 2019 filed against the

family members of the appellants for illegal

encroachment is also not to be considered as nothing

would turn out of it in relation to the question posed for

consideration. We may hasten to add that if the question

whether the appellants are entitled to anticipatory bail

survives, even after answering the aforementioned

question(s) posed for consideration, we may refer to the

relevant aspects in relation to the said cases.

13. As noticed hereinbefore, the appellants herein

moved the application for anticipatory bail in connection

with FIR No.79 of 2020 registered at Govindgunj Police

Station. It is a fact that the subject FIR was registered

pursuant to the directions of the learned Chief Judicial

Magistrate, East Champaran, Motihari on complaint

No.395 of 2020 filed by Respondent No.4 under Section

Special Leave Petition (Crl.) 7940 of 2023 Page 11 of 33 156 (3), Cr. PC. The allegations in the complaint are as

follows: -

On 22.02.2020, at about 8.00 am, when Jagmati

Kunwar, the grandmother of respondent No.4 reached in

front of the house of appellant No.2, Shashikant

Upadhyay, he said that she is the witch who made his

child sick and shall not be spared. Then, the appellants

and eight other family members gathered around her

and the 4th appellant caught hold of her hair and asked

the others to bring dung. Thereupon, accused Paritosh

Kumar brought dung and accused Rishu put dung into

the mouth of Jagmati Kunwar. Consequently, she

vomited and fell down. When respondent No.2/

complainant and other witnesses went for her help, the

second appellant Shashikant Upadhayay assaulted and

abused respondent No.2. Co-accused Paritosh Kumar

and Jishu Kumar tore the blouse of Kiran Devi and she

was disrobed. Another co-accused Soni Devi snatched a

Special Leave Petition (Crl.) 7940 of 2023 Page 12 of 33 gold chain from the complainant. The co-accused

Ravikant and appellant No.5 tore the clothes of Jagmati

Kunwar and made her half-naked.

14. Later, after completing 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

Special Leave Petition (Crl.) 7940 of 2023 Page 13 of 33 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

unsuccessfully approached the Sessions Court

challenging the order taking cognizance, in Criminal

Revision Petition No.94 of 2022. Pursuant to the dismissal

of the Revision Petition, the Trial Court posted the

application for cancellation of bail on different dates.

The fact is that despite such developments, the

appellants herein neither appeared before the Trial

Court nor sought for regular bail. In the meanwhile, the

appellants herein moved a bail-cum-surrender

application (described as such by them), before the Trial

Special Leave Petition (Crl.) 7940 of 2023 Page 14 of 33 Court. However, it was withdrawn on 23.08.2022 on the

fear of arrest. Thereupon, the Trial Court fixed the date

for appearance of the appellants on 30.08.2022. Before

the date fixed for their appearance, the appellants filed

application for anticipatory bail before the Sessions

Court and, thereafter on 06.09.2022, informed the Trial

Court about its listing before the Sessions Court on

27.09.2022 for final hearing. The Trial Court thereupon

posted the matter for appearance of the appellants to

11.10.2022. The anticipatory bail moved by the

appellants was dismissed on 27.09.2022 and thereupon,

the Trial Court took up the matter on 03.11.2022. Since

the appellants remained absent, the Trial Court issued

non-bailable warrants and listed the matter to 04.11.2022

for their production. Meanwhile, the appellants herein

approached the High Court by filing CRLM No.67668 of

2022 seeking anticipatory bail. It is to be noted that non-

bailable warrants were pending against them when they

Special Leave Petition (Crl.) 7940 of 2023 Page 15 of 33 moved the said application for anticipatory bail. On

04.12.2022, on behalf of the appellants, the Trial Court

was informed about the filing of anticipatory bail

application before the High Court. Consequently, the

matter was listed on 04.01.2023. On 04.01.2023, pursuant

to the non-appearance of the appellants despite the

earlier order for their appearance and the issuance of

non-bailable warrants, the Trial Court issued

proclamation under Section 82(1), Cr. PC. Later,

proceedings under Section 83, Cr.PC were also initiated.

On 15.03.2023, on behalf of the appellants it was prayed

to postpone the process under Section 82/83, Cr. PC.

However, the Trial Court proceeded to issue the process

under Section 83, Cr. PC, based on the proclamation

under Section 82(1) Cr.PC. On 04.04.2023, the

application for anticipatory bail filed by the appellants

was dismissed, obviously taking note of the proceedings

under Sections 82/83, Cr. PC and observing that owing

Special Leave Petition (Crl.) 7940 of 2023 Page 16 of 33 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 non-

bailable warrant could not be a reason for non-

considering the application for anticipatory bail on

merits.

Special Leave Petition (Crl.) 7940 of 2023 Page 17 of 33

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 to

the appellants, subsequent to the filing of the final report

in terms of the provisions under Section 173 (2), Cr.P.C

in FIR No.79/2020 and issuance of summons, issuance of

bailable warrants and issuance of non-bailable warrants;

pursuant to the failure of the appellants to appear before

the Court on the date fixed for their appearance based

on bailable warrants, they did not care to take any action

in accordance with law except moving applications for

bail. Same was the position even after the issuance of the

proclamation under Section 82, Cr.PC. As noted earlier,

in the case of similarly situated co-accused of the

appellants, they appeared and obtained regular bail

pursuant to the issuance of bailable warrants. Thus, a

Special Leave Petition (Crl.) 7940 of 2023 Page 18 of 33 scanning of the acts and omissions of the appellants, it

can only be seen that virtually, the appellants were

defying the authority of law and moving applications for

bail when they apprehended arrest owing to their non-

attendance and dis-obedience. It is in the context of the

aforesaid facts revealed from the materials on record

that the contention of the appellants that they were only

pursuing their right to file application for anticipatory

bail and, therefore, they were not either evading the

arrest or absconding, has to be appreciated.

17. Section 70 (2), Cr. PC mandates that every warrant

issued under Section 70 (1), Cr. PC shall remain in force

until it is cancelled by the Court which issued it, or until

it is executed. In this case, as noticed hereinbefore, the

bailable warrants and thereafter the non-bailable

warrants, were issued against the appellants. They were

neither cancelled by the Trial Court nor they were

executed. It is not their case that they have successfully

Special Leave Petition (Crl.) 7940 of 2023 Page 19 of 33 challenged them. Sections 19, 20, 21, 174 and 174 A, IPC

assume relevance in this context. They, insofar as

relevant read thus:

19. “Judge”. —The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body or persons, which body of persons is empowered by law to give such a judgment.

20. “Court of Justice”.—The words “Court of Justice” 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

Special Leave Petition (Crl.) 7940 of 2023 Page 20 of 33 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 in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

174A .Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.— Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished

Special Leave Petition (Crl.) 7940 of 2023 Page 21 of 33 with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

18. Taking note of the aforesaid facts with respect to

the issuance of summons, warrants and subsequently the

proclamation, a conjoint reading of Sections 19, 20 and

21, IPC containing the terms “Judge”, “Court of Justice”

and “Public Servant” and Sections 174 and 174A, IPC can

make them liable even to face further proceedings.

Same is the position in case of non-attendance in

obedience to proclamation under Section 82, Cr. PC.

19. Bearing in mind the aforesaid provisions and

position, we will refer to certain relevant decisions. In

Savitaben Govindbhai Patel & Ors. v. State of Gujarat5,

the High Court of Gujarat observed thus: - 5

2004 SCC OnLine Guj 345

Special Leave Petition (Crl.) 7940 of 2023 Page 22 of 33 “9. Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely.” (underline supplied)

20. We are in full agreement with the view taken by the

Gujarat High Court 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, as mentioned above are 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

Special Leave Petition (Crl.) 7940 of 2023 Page 23 of 33 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

Special Leave Petition (Crl.) 7940 of 2023 Page 24 of 33 apart, it is a fact that the appellants themselves on

23.08.2022, moved a bail-cum-surrender application

before the Trial Court but withdrew the same fearing

arrest. It is also relevant to note that in the case on hand

even while contending that they were before a Court, the

appellants got no case that in terms of the provisions

under Section 438 (1-B), Cr. PC an order for their

presence before the Court was ordered either suo motu

by the Court or on an application by the public

prosecutor. When that be the circumstance, the

appellants cannot be allowed to contend that they were

not hiding or concealing themselves from arrest or that

they were not knowing that they were wanted in a Court

of law.

21. To understand and consider another contention of

the appellants it is worthy to extract ground No.3 raised

by the appellants in SLP which reads thus:

“III. Because the Hon'ble High Court has failed to appreciate that proclamation under section 82 Cr.P.C.

Special Leave Petition (Crl.) 7940 of 2023 Page 25 of 33 was issued on 04.01.2023 by the Ld. Trial Court and thereafter process under section 83 Cr.P.C. have been initiated on 15.03.2023 whereas the application for anticipatory bail by the petitioner before the Hon'ble High Court was filed in November, 2022, however, the same was came for hearing on 04.04.2023. It is, therefore, evident that when the petitioners preferred filing of anticipatory bail before the Hon'ble High Court then none of the petitioner was declared absconder and process under section 82/83 Cr.P.C. were not initiated against them.”

22. The above extracted ground taken by the appellant

constrains us to consider the question whether there

could be any bar on the Trial Court for proceeding under

Section 82 Cr.PC, merely because an anticipatory

application for bail has been filed or because such an

application was adjourned without passing any interim

order. We may hasten to add here that it is always

preferable to pass orders, either way, at the earliest. In

the case on hand, application for anticipatory bail was

filed by the appellants before the High Court in

Special Leave Petition (Crl.) 7940 of 2023 Page 26 of 33 November, 2022 and brought up for hearing on

04.04.2023, on which day it was dismissed as per the

impugned order. The very ground, extracted above,

would reveal that in the meanwhile, proclamation under

Section 82 Cr.PC, was issued on 04.01.2023 and

thereafter process under Section 83 Cr.PC was initiated

on 15.03.2023.

23. There can be no room for raising a contention that

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

Special Leave Petition (Crl.) 7940 of 2023 Page 27 of 33 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 Bombay, in the decision in Shrenik Jayantilal Jain and

Anr. v. State of Maharashtra Through EOW Unit II,

Mumbai6 and answered as above and we are in

agreement with the view that in such cases, there will be

no statutory inhibition for arrest. Hence, the appellants

cannot be heard to contend that the application for

6 [2014 SCC Online Bom 549]

Special Leave Petition (Crl.) 7940 of 2023 Page 28 of 33 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 under Section 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 under

Section 82, Cr.PC, by filing successive applications for

anticipatory bail. In such circumstances, and in the

absence of any statutory prohibition and further, taking

Special Leave Petition (Crl.) 7940 of 2023 Page 29 of 33 note of the position of law which enables a police officer

to arrest the applicant for anticipatory bail if pending an

application for anticipatory bail the matter is adjourned

but no interim order was passed. We have no hesitation

to answer the question posed for consideration in the

negative. In other words, 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 under Section 83, Cr.PC, in

accordance with law.

24. We have already held that the power to grant

anticipatory bail is an extraordinary power. Though in

many cases it was held that bail is said to be a rule, it

cannot, by any stretch of imagination, be said that

anticipatory bail is the rule. It cannot be the rule and the

question of its grant should be left to the cautious and

judicious discretion by the Court depending on the facts

Special Leave Petition (Crl.) 7940 of 2023 Page 30 of 33 and circumstances of each case. While called upon to

exercise the said power, the Court concerned has to be

very cautious as the 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

Special Leave Petition (Crl.) 7940 of 2023 Page 31 of 33 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-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 under Section 82

Cr.PC., they did not take any steps to challenge the same

Special Leave Petition (Crl.) 7940 of 2023 Page 32 of 33 or to enter appearance before the Trial Court to avert the

consequences. Such conduct of the appellants in the

light of the aforesaid circumstances, leaves us with no

hesitation to hold that they are not entitled to seek the

benefit of pre-arrest bail.

26. The upshot of the discussion is that there is no

ground for interfering with the order of the High Court

rejecting the application for anticipatory bail rather not

considering application on merits. Since their action is

nothing short of defying the lawful orders of the Court

and attempting to delay the proceedings, this appeal

must fail. Consequently, it is dismissed.

……………………, J.

(C.T. Ravikumar)

……………………, J.

(Sanjay Kumar) New Delhi;

March 14 , 2024

Special Leave Petition (Crl.) 7940 of 2023 Page 33 of 33