INTRODUCTION
Today, I will talk about the case of Prem
Shankar Prasad v. State of Bihar & Another, 2021 SCC OnLine SC 955,
wherein the Hon’ble Supreme Court discussed whether a person who has been
declared as an absconder or a proclaimed offender under Section 82 of the Code
of Criminal Procedure, 1973 (CrPC) is entitled for grant of anticipatory bail
or not.
IMPORTANT LEGAL PROVISIONS
Before adverting any further, let us peruse the
relevant provisions of CrPC. S. 82 of CrPC provides that when a person has
absconded against whom a warrant has been issued, the Court has the power to
issue a written proclamation requiring appearance of such absconder. Such a
written proclamation is to be issued publicly. However, if such person is
accused of committing heinous offences and fails to appear at the specified
place and time required by the proclamation, then the court may pronounce and
declare him as a ‘proclaimed offender’.
Further, Section 438 of CrPC provides power to the
High Court and the Court of Sessions to grant anticipatory bail to a person after
taking into account factors such as nature of accusation, criminal antecedents
of the person, possibility of fleeing justice etc.
QUESTION OF LAW INVOLVED
The moot question that was answered in this case
was whether a person against whom proceedings under S. 82 of CrPC have been
initiated is liable for grant of anticipatory bail or not. In order to
understand the answer to this question, let us go through the pertinent observations
by the Court.
OBSERVATIONS BY THE COURT
Firstly, the Court opined that “an order
under Section 438 is a device to secure the individual's liberty, it is neither
a passport to the commission of crimes nor a shield against any and all kinds
of accusations likely or unlikely.”
Secondly, the Court also noted 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 person accused of an offence is not likely to otherwise
misuse his liberty.”
Thirdly, the Court cited the case of Lavesh v.
State (NCT of Delhi), (2012) 8
SCC 730, wherein it was observed that “normally, when the accused is
‘absconding’ and declared as a ‘proclaimed offender’, there is no question of
granting anticipatory bail. … 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.”
And lastly, the Court concluded by stating that “what
is required to be considered is the nature of allegation and the accusation and
not that the nature of accusation is arising out of a business transaction” and
therefore, “if anyone is declared as an absconder/proclaimed offender in
terms of Section 82 of the Code, he is not entitled to the relief of
anticipatory bail.”
Those were the observations by the Court. So, what
are my concluding remarks?
CONCLUDING REMARKS
I concur with the reasoning of the Court. The
provisions of CrPC cannot be read in isolation and must be construed harmoniously
with each other. When a person is declared as an ‘absconder’ by the Court, it also
means that such person is obstructing the course of justice and is not
cooperating in the investigation of the matter. Therefore, to grant
anticipatory bail to such person would mean breathing hot and cold at the same
time. An important ground to be considered under S. 438 of CrPC is the possibility
of fleeing justice. There is definitely a presumption against a person who has
absconded that he may be doing so to flee justice. Denying such person the
benefit of anticipatory bail only seems logical. Upon surrendering or getting
arrested, such person can always approach the Courts for grant of regular bail.
Thus, I hope that the nature and the scope of S.
82 of CrPC with respect to grant of anticipatory bail is clear by now.
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