Vijay Dewangan Vs State of Chhattisgarh

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 83 of 2015 of 2015, Judgment Date: Mar 04, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
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SINGLE BENCH :HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
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M.Cr.C.(A) No. 83 of 2015
APPLICANT : Vijay Dewangan
VERSUS
NON-APPLICANT : State of Chhattisgarh
Application under Section 438 of code of Criminal
Procedure,1973
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Present : Shri Govind Dewangan, Advocate for the applicant.
Shri Neeraj Pradhan, Panel Lawyer for the nonapplicant/
State.
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ORAL ORDER
(Passed on 04.03.2015)
1. Apprehending arrest in connection with Crime No.20/2012,
registered at Police Station Lalpur, District Mungeli,
Chhattisgarh for commission of offence punishable under
Section 420/34 of the Indian Penal Code (for short, IPC), the
applicant herein has filed this application under Section 438 of
Cr.P.C. for releasing him on anticipatory bail.
2. Case of the prosecution, in brief, is that the present applicant
and other co-accused persons obtained Rs.19,50,000/- from
various persons between 24.06.2011 to December, 2011 for
securing employment for them, and thereby cheated the
complainant and committed the aforesaid offences.
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3. Shri Govind Dewangan, learned counsel appearing for the
applicant would submit that applicant has not committed any
offence and four co-accused have already been acquitted by
the jurisdictional criminal court, since the charge sheet has
been filed against the present applicant in his absence, he
could not contest the trial, and therefore, he be granted
privilege of anticipatory bail.
4. Per contra, Shri Neeraj Pradhan, learned panel lawyer
appearing for the State while opposing the bail application
would submit that charge sheet against the present applicant
was filed in his absence as he could not be searched and
arrested as he was declared absconded on 24.03.2012 and
Farari Panchnama was prepared and thereafter in exercise of
power under Section 299 Cr.P.C. standing warrant of arrest
has been issued by Judicial Magistrate, First Class, Mungeli on
29.05.2012 and as such, the applicant being absconder and
not co-operating with the investigation and trial, is not entitled
for anticipatory bail.
5. I have heard learned counsel appearing for the parties and
considered their rival submissions made therein and perused
the case diary with utmost circumspection.
6. After hearing learned counsel appearing for the parties and
after perusal of case diary, it appears that charge sheet has
been filed against the present applicant in his absence as he
did not cooperate with investigation and failed to appear before
the court when charge sheet was filed, and therefore, Chief
Judicial Magistrate, Mungeli, has issued standing warrant of
arrest against him on 29.05.2012.
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7. The short question for consideration would be whether an
accused who is absconding and not co-operated with the
investigation and even not appearing in the trial and against
whom standing warrant of arrest has been issued by the
jurisdiction criminal court under Section 299 Cr.P.C. is entitled
for privilege of anticipatory bail.
8. At this stage, it would proper to notice provision for anticipatory
bail as provided in Section 438 of the Code of Criminal
Procedure, 1973 as under:-
“438. Direction for grant of bail to person
apprehending arrest
[(1) When any person has reason to believe that he may
be arrested on an accusation of having committed a nonbailable
offence, he may apply to the High Court or the
Court of Session for a direction under this section that in
the event of such arrest he shall be released on bail; and
that Court may, after taking into consideration, inter alia,
the following factors, namely:-
(i) the natue and gravity of the accusation;
(ii) the antecedents of the applicant including that fact
as to whether he has previously undergone
imprisonment on conviction by a Court in respect of
any cognizable offence;
(iii) the possibility of the applicant to flee from justice;
and
(iv) where the accusation has been made with the
object of injuring or humiliating the applicant by having
him so arrested,
either reject the application forthwith or issue an interim
order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case
may be, the Court of Session, has not passed any interim
order under this sub-section or has rejected the
application for grant of anticipatory bail, it shall be open to
an officer in-charge of a police station to arrest, without
warrant, the applicant on the basis of the accusation
apprehended in such application.
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(1A) Where the Court grants an interim order under
sub-section (1), it shall forthwith cause a notice being not
less than seven days notice, together with a copy of such
order to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public
Prosecutor a reasonable opportunity of being heard when
the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking
anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by the
Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary
in the interest of justice."]
(2) When the High Court or the Court of Session
makes a direction under sub-section (1), it may include
such conditions in such directions in the light of the facts
of the particular case, as it may think fit, including -(i) a
condition that the person shall make himself available for
interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or
indirectly, make any inducement, threat or promise to
any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court
or to any police officer;
(iii) a condition that the person shall not leave India
without the previous permission of the Court;
(iv) such other condition as may be imposed under
sub-section (3) of section 437, as if the bail were
granted under that section.
(3) If such person is thereafter arrested without
warrant by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest or
at any time while in the custody of such officer to give bail,
he shall be released on bail; and if a Magistrate taking
cognizance of such offence decides that a warrant should
issue in the first instance against that person, he shall
issue a bailable warrant in conformity with the direction of
the Court under sub-section (1).
Thus, the power exercisable under Section 438 Cr.P.C.
is to be exercised only in exceptional cases and upon the
fulfillment of factors mentioned in Section 438(1) Cr.P.C.
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9. The Supreme Court in case of Lavesh v. State (NCT of
Delhi)1 has clearly held that an absconder accused or the
proclaimed offender is not entitled for anticipatory bail and
observed as under :
“From these materials and information, it is clear
that the present appellant was not available for
interrogation and investigation and declared as
“absconder”. 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 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 is not
entitled the relief of anticipatory bail.”
10. Very recently, in the matter of State of Madhya Pradesh v.
Pradeep Sharma2, their Lordships of the Supreme Court
reiterating the principle laid down in Lavesh (supra) and
following the said decision has held that if anyone is declared
as an absconder /proclaimed offender in terms of Section 82 of
the Code he is not entitled for anticipatory bail by observing as
under:-
“The High Court failed to appreciate that it is a
settled position of law that where the accused has
been declared as an absconder and has not cooperated
with the investigation, he should not be
granted anticipatory bail.”
11. Reverting back to the facts of the case it would appear that
charge-sheet was filed against the applicant in his absence on
30.03.2012 and since he was declared absconded by the
police, the concerned criminal court in exercise of power under
1 2012(8) SCC 730
2 AIR 2014 SC 626
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Section 299 Cr.P.C. issued standing warrant of arrest against
him by order dated 29.05.2012. The said order states as
under:-
**29-05-2012
Fkkuk ykyiqj ds iz/kku vkj{kd vk’kkjke dqj sZ us
Qjkj vfH k;qDr fot; nsok axu dk s tkjh fxjQ~rkjh okjUV
vne rkfeyh is’k fd;k gSA ftl ij mldk rkfey
dqfyUnk c;ku fy;k x;kA mDr c;ku ds vk/kkj ij ;g
mi/kkj.kk djus ds i;kZIr vk/kkj gS fd Qjkj vfH k;qDr
fot; nsok axu Lo;a dk s U;k;ky;hu vknsf’kdk dh rkfeyh
ls cpkuk pkgrk gS rFkk mlds fudV H kfo"; esa feyus
dh dk sbZ lE Hkkouk ugh a gSA
izdj.k esa 'k s" k lg vfHk;qDr x.k vfHkj{kk esa fu:)
gS vr% Qjkj vfHk;qDr fot; nsok axu dh mifLFkfr gsrq
foyEc dh lE Hkkoukvk sa dk s ns[krs gq, vfHkj{kk/khu 'k s" k
lg vfHk;qDrx.k ds fo:) fopkj.k dk vkns’ k ikfjr djrs
gq, Qjkj vfH k;qDr fot; nsok axu vk0 lqj s’ k mez&24 o"kZ]
lkfdu djukSn] Fkkuk fojk] ftyk tkW atxh j&pkW aik dk s
n0iz0la0 1973 dh /kkjk 299 ds rgr LFkk;h fxjQ~rkjh
okjUV tkjh fd;s tkus dk vkns’ k ikfjr fd;k tk jgk gSA
lgh@&
izFke oxZ U;kf;d eftLVz~ sV
eq axsyh”
12. Bearing in mind the principle of law laid down by their
Lordships of the Supreme Court in above-stated cases
Lavesh(supra), State of Madhya Pradesh(supra) it would
appear that, the absconder or the proclaimed offender who is
concealing himself in order to avoid execution of warrant is not
entitled for privilege of anticipatory bail. In the instant case
standing warrant of arrest has been issued as the applicant
has neither co-operated in investigation nor appearing in the
trial and avoiding process of the court issued against him timeto-
time to secure his presence and ultimately finding no way
the jurisdictional criminal court has issued the standing warrant
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of arrest against him on 29.05.2012 and as such following the
law laid down by their Lordships in this regard, in the
considered opinion of this Court the applicant is not entitled for
the privilege of anticipatory bail. The application for anticipatory
bail deserves to and accordingly rejected. No order as to
cost(s).
Judge
inder
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HEAD NOTE
An accused against whom standing warrant of arrest has been
issued is not entitled for anticipatory bail.
,d vfHk;qDr ftlds fo:) LFkk;h fxjQ~rkjh okjaV tkjh fd;k x;k gS og
vfxze tekur dk vf/kdkjh ugh gSA
(Indrajeet Sahu)
P.S. To His Lordship