Respondent's Application U/s. 438 CrPC Should Not Have Been Entertained As He Was A Proclaimed Offender: SC Sets Aside High Court's Order Granting Anticipatory Bail

While considering an appeal by the State of Haryana seeking cancellation of anticipatory bail granted to the sole respondent by the Single Judge of the Punjab & Haryana High Court, the Supreme Court has set aside the order granting anticipatory bail finding that the appellant was a proclaimed offender.

The Supreme Court also pointed out that Courts can consider a plea seeking anticipatory bail only in exceptional and rare cases.

A Two Judge Bench of Justice Ahsanuddin Amanullah and Justice S.V.N Bhatti observed that “The respondent, without first successfully assailing the order declaring him as a proclaimed offender, 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”.

Advocate Samar Vijay Singh appeared for the Petitioner, whereas Advocate Sandeep Jindal appeared for the Respondent.

The brief facts of the case were that the respondent is accused in an FIR lodged under Sections 147, 148, 149, 323, 325, 341, 342, and 427 of IPC along with Sections 186, 353 and 364 of IPC. In the background of the nature of the allegations and the materials collected as well as the respondent having been declared a proclaimed offender, grant of indulgence under Section 4382 of CrPC was erroneous and misplaced. It was submitted that there is enough evidence to show the complicity of the appellant and further, based on this very order, other co-accused persons have been granted the benefit of anticipatory bail, which does not serve larger public interest. Further, it was submitted that the State was trying to show the respondent as the culprit only on the ground that he shares common name with one of the accused. On the other hand, the State of Haryana opposed the same contending that the respondent was the person who has been duly identified and against him the allegations levelled are found true, per the Investigation Agency.

After considering the submission, the Bench noted that the respondent’s application under Section 438, CrPC should not have been entertained, as he was a proclaimed offender.

The Bench also stated that the High Court had lost its sight that the respondent was a declared proclaimed offender and highlighted the importance of the correctness of an order of bail by referring to Mahipal v Rajesh Kumar alias Polia [(2020) 2 SCC 118], wherein it was held that the correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail.

Referring to the case of Daulat Ram and others v. State of Haryana [(1995) 1 SCC 349], the Bench reiterated that it is also required to be borne in mind that when a prayer is made for the cancellation of the grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial.

“The declaration of the respondent as a proclaimed offender, and such declaration subsisting on the date of the Impugned Order, the Court cannot agree with the High Court that the respondent was entitled to ‘reform and course correct’", added the Bench.

Accordingly, the Bench directed the respondent to surrender before the Court concerned within four weeks from today and seek regular bail which will be considered on its own merits.

Cause Title: State of Haryana v. Dharamraj [Neutral Citation: 2023: INSC: 784]

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