High Court of Madhya Pradesh

Balveer Singh Bundela vs The State Of Madhya Pradesh

MANU/MP/0830/2020

12.05.2020

Criminal

Application under Section 438 of Cr. PC is maintainable, even if, a person has been declared as proclaimed offender

Present is first bail application preferred by the Applicant under Section 438 of Code of Criminal Procedure, 1973 (CrPC) wherein he is apprehending his arrest in a case registered at Police Station for alleged offence punishable under Sections 376, 386, 506 of Indian Penal Code, 1860 (IPC).

It is submitted by learned counsel appearing for the applicant that, police has registered a false case against him. As per FIR, date of incident appears to be 27th October, 2019 whereas FIR lodged on 15th December, 2019, apparently delayed in nature. The question raised in present case is whether after being declared as an absconder under Section 82/83 of CrPC or by police through Farari Panchnama or through declaration of cash award for apprehension of accused, his application under Section 438 of CrPC seeking anticipatory bail before High Court or Sessions Court is maintainable or not.

In view judgments of Constitution Bench in the case of Gurbaksh Singh Sibbia etc. Vs. The State of Punjab, Sushila Aggarwal and others Vs. State (NCT of Delhi) and another, Bharat Chaudhary and another Vs. State of Bihar and another, and Ravindra Saxena Vs. State of Rajasthan, it is apparently clear that no bar can exist against a person seeking anticipatory bail. In other words, application under Section 438 of CrPC is maintainable even after filing of charge-sheet or till the person is not arrested. Personal Liberty of an individual as ensured by Section 438 of CrPC is embodiment of Article 21 of Constitution of India in CrPC. Therefore, scope and legislative intent of Section 438 of Cr.P.C. is to be seen from that vantage point.

Close scrutiny of judgment of Apex Court in the case of Lavesh Vs. State (NCT Of Delhi) nowhere bars maintainability of an application under Section 438 of CrPC, if a person is absconding. In fact, it takes care of Justifiability of any application under Section 438 of CrPC as per factors provided in Section 438 of CrPC itself. Application under Section 438 of CrPC is maintainable even if a person has been declared as proclaimed offender in terms of Section 82 of CrPC.

Therefore, in the considered opinion of present Court, even if the police authority has declared award or prepared Farari Panchnama, even then anticipatory bail application is maintainable. However, it is to be seen on merits that whether that application deserves to be considered and allowed as per the factors enumerated in Section 438 of CrPC itself and if any of those factors are not satisfied then the Court certainly has discretion to reject it.

As per facts of present case, it appears that on false promise of marriage, initially physical intimacy developed and later on both entered into wedlock but it is grievance of prosecutrix that he is already a married person. Certain bank transactions have already been referred and documented which indicate that they were in proximity. As submitted, both the parties earlier tried to settle the matter by filing petition under Section 482 of CrPC. Therefore, both matured individuals waited the consequences of their decisions and both lived some days together comfortably.

Applicant deserves consideration for anticipatory bail. Even otherwise the police nowhere referred criminal antecedents of the applicant and his presence can be ensured by marking his attendance before the Investigating Officer for investigation purpose. Consensual proximity of Body and Soul cannot be used as a weapon to wreak vengeance at a later point of time when Body and Soul drift apart. Present Court allows this bail application.

Tags : Bail Absconder Entitlement

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