'We are a bit perplexed', says SC on HC's order of pre-arrest bail to proclaimed offender in kidnapping case

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SC questioned the high court's reliance upon Arnesh Kumar judgment in the kidnapping case where the accused was a proclaimed offender

The Supreme Court has set aside an order of the Punjab and Haryana High Court granting anticipatory bail to a man, already declared proclaimed offender, in a kidnapping case with the maximum sentence of life term, by relying upon the top court's judgment in Arnesh Kumar case.

The top court also took a dim view of the fact that the high court felt that the accused deserved a chance to "reform and course correct".

"We are a bit perplexed as to how, despite addition of Section 364, IPC, the high court took the view that Arnesh Kumar (2014) would aid the respondent in his quest for pre-arrest bail," a bench of Justices Ahsanuddin Amanullah and S V N Bhatti said.

The bench said, "We are cognizant that liberty is not to be interfered with easily. More so, when an order of pre-arrest bail already stands granted by the high court.

"Yet, much like bail, the grant of anticipatory bail is to be exercised with judicial discretion. The factors illustrated by this court through its (various) pronouncements are illustrative, and not exhaustive. Undoubtedly, the fate of each case turns on its own facts and merits," the bench added.

The Haryana government filed an appeal in the top court against the high court's judgment of December 3, 2021 which granted pre-arrest bail to one Dharamraj in a case lodged by the Gurugram police for offence under Sections 147, 148, 149, 323, 325, 341, 342 and 427 of the IPC. Sections 186, 353 and 364 of the IPC were also included in the FIR later.

The government said that the high court's indulgence to the accused was erroneous and misplaced in view of the background of the case and the fact that he was declared a proclaimed offender. It also submitted that on the basis of the high court's order, the other co-accused were granted similar bail, which did not serve the larger public interest.

The respondent claimed that the state agency tried to unnecessarily harass him by implicating in the case, by manipulating records of the investigation.

Going by the various previous rulings on the grant of bail, the bench said that in the facts and circumstances of the present case, it was not proper for the high court to have granted anticipatory bail to the respondent.

The court noted that the reasonings given by the high court also included that the maximum sentence for the offences in the First Information Report did not exceed 7 years and that the respondent was a first-time offender and deserved a chance to ‘reform and course correct’.

"The logic of the high court does not commend itself to us. The high court placed reliance on Arnesh Kumar v State of Bihar, (2014) to the effect that where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine, there is to be no automatic arrest," the bench said.

"With the declaration of the respondent as a proclaimed offender, and such declaration subsisting on the date of the Impugned Order, we are unable to agree with the high court that the respondent was entitled to ‘reform and course correct’," the bench added.

The court said that without first successfully assailing the order declaring him as a proclaimed offender, the respondent could not have proceeded to seek anticipatory bail. 

"Looking to the factual prism, we are clear that the respondent’s application under Section 438, CrPC should not have been entertained, as he was a proclaimed offender," the bench said.

The bench, however, clarified, "Of course, in an exceptional and rare case, this court or the high courts can consider a plea seeking anticipatory bail, despite the applicant being a proclaimed offender, given that the Supreme Court and high courts are Constitutional Courts. However, no exceptional situation arises in the case at hand."

The bench directed the respondent to surrender before the court concerned within four weeks while adding that he may seek regular bail which will be considered on its own merits.

It also allowed the Haryana government to take appropriate steps with regard to anticipatory bail granted to co-accused on the basis of the order issued in favour of the respondent.