The Allahabad High Court while allowing the bail application held that proclaimed offender is also entitled to anticipatory bail.
A Single Bench of Justice Nalin Kumar Srivastava passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Sanjay Pandey.
The application has been moved on behalf of the applicant Sanjay Pandey seeking anticipatory bail in Case under Sections 419, 420, 467, 468, 471, 504, 506 IPC, Police Station- Cantt. District- Gorakhpur.
It is alleged that co-accused Om Prakash Pandey executed a sale deed of a plot in favour of the informant in the year 2013 but the possession thereof was not handed over.
Subsequently a boundary wall was constructed by the applicant and co accused Om Prakash Pandey in view of the terms of the sale deed and possession was handed over to the informant. Subsequently the informant came to know that some other persons have started construction of a house inside the boundary wall of the informant. Co-accused Om Prakash Pandey subsequently refused to hand over the land to the informant, thereafter, FIR was lodged.
It has been argued by the counsel for the applicant that the applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Investigation is going on in the matter.
It is further submitted that the accused applicant has absolutely no role in the commission of the alleged crime. The land in dispute does not belong to the applicant and no sale deed executed by him in favour of the informant in respect of the land in dispute.
It is also submitted that the applicant is even not a witness in the sale deed aforesaid.
Counsel for the applicant said that the accused applicant has been cooperative so far during the course of investigation. It is also stated that criminal history of the accused applicant has been explained in the affidavit itself annexed with the anticipatory bail application. In case the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.
A.G.A opposed the prayer for anticipatory bail.
At the very outset, a preliminary objection has been raised by the A.G.A that in the matter a process under Section 82 Cr.P.C has been issued against the applicant and he has been declared as a proclaimed offender and in view of the settled law laid down by the Apex Court in such matter he is not entitled for anticipatory bail. In support of his contention he has placed reliance on the decision of the Apex Court in Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine Supreme Court 955.
In reply to the contention aforesaid it has been vehemently submitted by the counsel for the applicant that non bailable warrant against the applicant is said to be issued on 3.9.2022 and a process under Section 82 Cr.P.C was issued on 15.12.2022.
It has been pointed out that in some cases of similar nature the applicant has falsely been implicated and in almost all the aforesaid matters he was engaged to take protection from the Court by way of filing Criminal Misc Writ Petition and Application under section 482 for almost two years and during this period punitive process has been issued against the applicant.
It is further submitted that he is not a willful defaulter and is not deliberately avoiding the service of the process of the Court but due to his engagement in the Court proceedings he was not in a position to appear before the I.O and his default is genuine and anticipatory bail may be granted to him.
The Court held that,
From the aforesaid dictum of law, it can safely be held that it is a normal rule that when an accused is absconding and declared as proclaimed offender, there is no question of granting anticipatory bail to him. But in the case, since the applicant was engaged in obtaining protection from his arrest in other matters from different forums, he should be given an opportunity to explain his position by way of filing anticipatory bail application and since in the interregnum period coercive process has been issued, his plea for anticipatory bail should be considered.
In the matter prima facie it appears that the writ petitions and other legal proceedings which have been averred in the affidavit accompanying with the anticipatory bail application are relating to almost the same crime and several FIRs have been lodged against the applicant relating to the similar allegations by different persons and in all such proceedings the applicant at relevant point of time was not absconding but was making a genuine effort to take protection from this Court and if during that period when he was not deliberately avoiding any process issued under the instructions of the Court, no presumption can be made at this stage that he was willfully avoiding the process issued under the instructions of the Court in this solitary case.
“Considering the settled principles of law regarding anticipatory bail, submissions of the counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) Cr.P.C before the competent Court”, the Court observed while allowing the application.
The Court ordered that,
In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs 50,000/- with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-
(i) The applicant shall make himself available for interrogation by a police officer as and when required.
(ii) The applicant 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/her from disclosing such facts to the Court or to any police office.
(iii) The applicant shall not leave India without the previous permission of the Court and if he has a passport, the same shall be deposited by him before the S.S.P/S.P Concerned.
In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant.