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Synopsis

The Supreme Court has on March 14, 2014 said that when warrant of arrest or proclamation is issued against an accused, he is not entitled to invoke the extraordinary power of the court to seek anticipatory bail, though it may still not deprive the court from granting pre arrest bail in extreme and exceptional cases.

"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 and circumstances of each case," a bench of Justices C T Ravikumar and Sanjay Kumar said.

The court said that when 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," the bench said.

The court also said that 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 then, person(s) continuously, defying orders and keep absconding is not entitled to such grant," the bench said.

The court dismissed a petition filed by one Srikant Upadhyay and others against the Patna High Court's order of April 4, 2023 rejecting anticipatory bail of the appellant.

The accused apprehended arrest in the FIR lodged in 2020 against him and co-accused at Govidganj, Police Station, District East Champaran, Bihar, under Sections 341, 323, 354, 354 (B), 379, 504, 506 and 149 of the Indian Penal Code, and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999.

In the case, the bench found consistent disobedience of the appellants to comply with the orders of the trial court. 

The court said even after the issuance of non bailable warrants on November 03, 2022, the petitioners did not care to appear before the trial court and did not apply for regular bail after its recalling. Even after coming to know about the proclamation under Section 82 CrPC, they did not take any steps to challenge the same or to enter appearance before the trial court to avert the consequences. 

"Such conduct of the appellants in the light of these circumstances, leaves us with no hesitation to hold that they are not entitled to seek the benefit of pre-arrest bail," the bench said.

The court also dealt with the question whether there could be any bar on the trial court for proceeding under Section 82 CrPC, 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," the bench said.

In view of the proviso under Section 438(1) CrPC, 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, the bench said. 

"In short, nothing prevents the court from adjourning such an application without passing an interim order," the court said.

The bench also said 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 of the CrPC, in accordance with law.

Case Title: Srikant Upadhyay & Ors Vs State of Bihar & Anr