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9 January 2025

Supreme Court: There Is No Bar On Seeking Anticipatory Bail Even If The Applicant Is Declared As A Proclaimed Offender Under Section 82 Of The CRPC.

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In a groundbreaking judgment, the Hon'ble Supreme Court, on November 12, 2024, has held that the grant of anticipatory bail is not automatically barred even when the applicant is declared as a proclaimed offender under Section 82 of the Code of Criminal Procedure
India Litigation, Mediation & Arbitration

TITLE: Asha Dubey v. State of Madhya Pradesh, Criminal Appeal No. 4564 of 2024

DATE OF JUDGMENT: 12.11.2024.

BENCH: Justice M.M. Sundresh and Justice Arvind Kumar.

INTRODUCTION:

In a groundbreaking judgment, the Hon'ble Supreme Court, on November 12, 2024, has held that the grant of anticipatory bail is not automatically barred even when the applicant is declared as a proclaimed offender under Section 82 of the Code of Criminal Procedure ("CrPC"). This judgment marks a significant departure from the Supreme Court's earlier stance and highlights the judiciary's commitment to safeguarding liberty of an individual against procedural rigidity.

By effectively overturning its previous decisions in Srikant Upadhyay & Ors. v. State of Bihar & Ors. [SLP Crl. No. 7940 of 2023], Prem Shankar Prasad v. State of Bihar [(2022) 14 SCC 516], and State of M.P. v. Pradeep Sharma [(2014) 2 SCC 171] wherein it was held that a proclaimed offender cannot seek the protection of an anticipatory bail, the Supreme Court has clarified that the issuance of a declaration of a person to be a proclaimed offender under Section 82 of the CrPC does not create an insurmountable bar to the grant of anticipatory bail. Instead, the Supreme Court has stressed the importance of balancing procedural requirements keeping in mind the personal liberty of an individual.

WHO IS A PROCLAIMED OFFENDER:

  • Under Section 82 of the CrPC or its equivalent Section 84 of the Bhartiya Nagrik Suraksha Sanhita ("BNSS"), if a court has sufficient reason to believe (based on evidence or otherwise) that a person against whom a warrant has been issued is absconding or concealing himself so that such warrant cannot be executed, it may issue a written proclamation. This proclamation requires the individual to appear at a specified place and time, which must be no less than 30 (thirty) days from the date of its publication.
  • In case such a proclamation pertains to a person accused of serious offences such as Sections 302(Murder), 304 (culpable homicide not amounting to murder) 364 (kidnapping with the intention to murder) etc. of the Indian Penal Code, and the individual fails to appear as directed, the court may, after conducting an appropriate inquiry, declare them a "proclaimed offender."

SUPREME COURT'S EARLIER DECISIONS GOVERNING GRANT OF ANTICIPATORY BAIL TO PROCLAIMED OFFENDERS:

  • In its previous judgments, the Hon'ble Supreme Court had made it unequivocally clear that a proclaimed offender has no right to seek anticipatory bail under Section 438 of the CrPC.
  • In fact, in the case of Lavesh v. NCT of Delhi [(2012) 8 SCC 730], the Supreme Court held that "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."
  • The decision passed by the Supreme Court in Lavesh's case (supra) was subsequently followed in several cases including State of Madhya Pradesh v. Pradeep Sharma [(2014) 2 SCC 171] and Prem Shankar Prasad v. State of Bihar and Anr [(2022) 14 SCC 516].
  • Notably, in the case of Srikant Upadhyay & Ors. v. State of Bihar & Ors. [SLP Crl. No. 7940 of 2023] which was passed as recently as March 2024, the Apex Court went a step further and held that if a person is declared as a proclaimed offender subsequent to filing of an anticipatory bail application, his anticipatory bail application, which was filed prior to him being declared a proclaimed offender, must be rejected.

SUPREME COURT'S CONTRARY STANCE IN THE CASE OF ASHA DUBEY.

  • Departing from its view in the aforesaid cases, the Hon'ble Supreme Court in Asha Dubey's case, has held that a person being declared a proclaimed offender does not bar a court from granting him anticipatory bail.
  • In Asha Dubey's case, the appellant i.e., the original anticipatory bail applicant was facing charges of causing dowry death and cruelty under Sections 80, 85, 108, and 3(5) of the Bharatiya Nyaya Sanhita, 2023 ("BNS") read with Sections 3 and 4 of the Dowry Prohibition Act, 1961. The appellant was apprehensive of arrest since the complainant alleged that she, along with other co-accused individuals, had committed the offences stated hereinabove. Her son, who was also an accused in the case, had already been arrested.
  • The appellant's counsel argued that she was not residing with the deceased at the time of the incident and that her role was limited to being present when her son allegedly mistreated the deceased. The appellant also emphasized that she had been cooperative with the investigation and that her declaration as a proclaimed offender under Section 82 of the CrPC should not preclude her from seeking anticipatory bail.
  • Per contra, the State's counsel placed reliance on the Pradeep Sharma's case (supra) to contend that the appellant's anticipatory bail application must be rejected in view of her being declared a proclaimed offender under Section 82 of the CrPC. The state also contended that the appellant's anticipatory bail application must be rejected since she was not cooperating in the investigation.
  • While allowing the appellant's anticipatory bail application, the Supreme Court observed that the state's contention regarding the appellant's non-cooperation in the investigation was incorrect. The Hon'ble Supreme Court also held that a declaration of a person being a proclaimed offender under Section 82 of the CrPC does not place a total embargo on the grant of anticipatory bail.
  • The Supreme Court further clarified that "when the liberty of the appellant is pitted against, this Court will have to see the circumstances of the case, nature of the offence and the background based on which such a proclamation was issued."
  • By doing so, the Hon'ble Supreme Court has laid down 3 (three) important parameters to be considered by the court while granting anticipatory bail to a proclaimed offender, namely,
    1. The circumstances of the case at hand.
    2. The nature of the offence alleged against the anticipatory bail applicant.
    3. Background and circumstances under which the proclamation under Section 82 of the CrPC was issued against the anticipatory bail applicant.

CONCLUSION AND PRACTICAL IMPLICATIONS:

The Supreme Court's judgment in the case of Asha Dubey has undoubtedly set a new precedent in the realm of anticipatory bail jurisprudence. By holding that a proclamation under Section 82 of the CrPC does not impose an absolute bar on the grant of anticipatory bail, the Supreme Court has emphasized on the primacy of individual liberty, even in the face of procedural complexities. However, this shift also challenges the previously well-established principle that absconders should not benefit from the protective shield of anticipatory bail while evading justice.

This landmark judgment highlights the judiciary's effort to balance personal liberty with procedural norms, but it also raises critical questions about the potential misuse of such protection by those evading the execution of warrants against them. By opening the door for proclaimed offenders to seek anticipatory bail, the Supreme Court has laid the groundwork for absconders to avoid execution of warrants against them (especially in grave offences) and simultaneously seek protection by filing an anticipatory bail application. Only time will reveal whether this decision strengthens the legal system or inadvertently creates a precedent susceptible to exploitation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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