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Synopsis

The Allahabad High Court recently observed that a proclaimed offender cannot be prevented from filing an anticipatory bail application under Section 438 of the CrPC.

The bench of Justice Krishan Pahal held that neither the proceedings under Section 82 CrPC nor Section 438 CrPC impose any restriction in the filing of anticipatory bail applications by the proclaimed offender.

The court while relying upon the judgment passed by the Apex Court in Lavesh vs. State (NCT of Delhi) [(2012) 8 SCC 730] observed that even in the Lavesh (supra) while laying down the law, the Supreme Court had used the word "normally".

The court further said that Section 438 CrPC was inserted to the Code as it was seen that the influential persons try to implicate their rivals in false cases for the purpose of disgracing them by detaining them in jail for some time. "It is true, such powers are to be exercised in exceptional cases. The prosecution cannot be permitted to be converted into an arena to settle scores," said the court.

In Lavesh (Supra) the Apex Court held that anticipatory bail application of a fugitive criminal should not normally be entertained.

In Lavesh case (supra), the Apex Court had observed 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 has 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 bench of Justice Krishan Pahal in the present case observed that “It is true that in the judgment passed in Lavesh (supra), the said applicant was not enlarged on anticipatory bail as the proceedings under Section 82 Cr.P.C. were complete. In the case of Lavesh (supra) there was no question of granting anticipatory bail. 'Normally', when the accused was absconding and declared proclaimed absconder, the core of judgment in Lavesh (supra) was in the expression 'normally' and when the accused absconded or concealed himself to avoid the execution of warrant.".

The bench granted anticipatory bail to the applicant/accused Udit Arya, who was accused of the dowry death of his wife on 21.10.2022 and therefore an F.I.R. under Sections 498-A, 304-B ​​of IPC and Section ¾ of the Dowry Prohibition Act was registered.

It was the case of the prosecution that the applicant/accused and other members of the family had subjected the deceased to cruelty for demand of Rs.60 lakhs and a car as dowry. In the month of September 2022, the deceased was stated to have undergone the abortion of the fetus she was carrying in her womb. The applicant/accused and other family members had beaten the deceased on 21.10.2022. The condition of the deceased deteriorated as a result of the injuries sustained on 21.10.2022 and the fetus died in the womb of the deceased. The applicant/accused and her family members did not get the deceased treated and the said fetus was dead in her womb for a period of ten days and the deceased was assaulted continuously during that period.

Against the backdrop of these submissions of the respective counsels of the parties, the court observed that “the deceased expired as a result of 'septicemia' due to chronic illness of multiple organs involvement, thus, the death cannot be termed as 'not under normal circumstances' as envisaged under Section 304-B I.P.C. The ingredients of Section 304-B I.P.C. do not stand fulfilled. This case seems to be a misuse of the dowry laws.”

The court further observed, “After hearing the rival contentions, going through the record, considering the nature of accusations and antecedents of the applicant and taking into note the very fact that the cause of death has been opined to be septicaemia due to chronic illness of multiple organs involvement and also that there was no complaint against the applicant or his family members before the death of the deceased person and also that no visible injury has been observed on the body of the deceased person internally or externally, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1".

Consequently, the anticipatory bail application of the applicant/accused was allowed and it was directed that the accused in the above offence be released on anticipatory bail till the conclusion of the trial on furnishing one personal and two sureties in like amounts to the satisfaction of the court concerned.

Case Title: Udit Arya v. State of UP [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 4560 of 2023]