SRIKANT UPADHYAY & ORS versus STATE OF BIHAR & ANR.
[2024] 3 S.C.R. 421, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Issues
* Author
[2024] 3 S.C.R. 421 : 2024 INSC 202
Srikant Upadhyay & Ors. 
v. 
State of Bihar & Anr.
(Criminal Appeal No. 1552 of 2024)
14 March 2024
[C.T. Ravikumar* and Sanjay Kumar, JJ.]
Issue for Consideration
Whether there could be any bar on the Trial Court for proceeding 
u/s. 82 Cr.P.C., merely because an anticipatory application for 
bail has been filed or because such an application was adjourned 
without passing any interim order.
Headnotes
Code of Criminal Procedure, 1973 – s.438 and s.82 – Application 
for anticipatory bail was filed in November 2022 and brought 
up for hearing on 04.04.2023, on which it was dismissed 
– Meanwhile, proclamation was issued u/s. 82 Cr.P.C. on 
04.01.2023 and thereafter process u/s.83 Cr.P.C. was initiated 
on 15.03.2023 – The core contention of the appellants is that 
the rejection of the application for anticipatory bail without 
considering the application on merits for the reason of issuance 
of proclamation u/s. 82, Cr.P.C., is unsustainable – Propriety:
Held: In view of the proviso u/s. 438(1), Cr.PC, 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 – In short, 
nothing prevents the court from adjourning such an application 
without passing an interim order – The appellants cannot be 
heard to contend that the application for anticipatory bail filed in 
November, 2022 could
not have been adjourned without passing 
interim order – At any rate, the said application was rejected on 
04.04.2023 –Pending the application for anticipatory bail, in the 
absence of an interim protection, if a police officer can arrest the 
accused concerned how can it be contented that the court which 
issued summons on account of non-obedience to comply with its 
order for appearance and then issuing warrant of arrest cannot 
proceed further in terms of the provisions u/s. 82, Cr.PC, merely 
because of the pendency of an application for anticipatory bail –
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If the said position is accepted the same would be adopted as a 
ruse to escape from the impact and consequences of issuance 
of warrant for arrest and also from the issuance of proclamation 
u/s. 82, Cr.PC, by filing successive applications for anticipatory 
bail – It is made clear that 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 u/s. 83, Cr.PC, in accordance with law. [Para 23]
Code of Criminal Procedure, 1973 – s. 438 and s.82 – Various 
orders by trial Court – Issuance of non-bailable warrants – 
Disobedience by the conduct – Proclamation issued u/s. 82 
– Appellants sought pre-arrest bail – Whether appellants were 
entitled to pre-arrest bail:
Held: The facts would reveal the consistent disobedience of the 
appellants to comply with the orders of the trial Court – They failed 
to appear before the Trial Court after the receipt of the summons, 
and then after the issuance of bailable warrants even when their 
co-accused, after the issuance of bailable warrants, applied and 
obtained regular bail – Though the appellants filed an application, 
which they themselves described as “bail-cum-surrender application” 
on 23.08.2022, they got it withdrawn on the fear of being arrested 
– Even after the issuance of non-bailable warrants on 03.11.2022 
they did not care to appear before the
Trial Court and did not apply 
for regular bail after its recalling – It is a fact that even after coming 
to know about the proclamation u/s. 82 Cr.PC., they did not take 
any steps to challenge the same or to enter appearance before the 
Trial Court to avert the consequences – Considering the conduct 
of the appellants, there is no hesitation to hold that they are not 
entitled to seek the benefit of pre-arrest bail. [Para 16]
Code of Criminal Procedure, 1973 – s.82 – Non-attendance 
in obedience to proclamation u/s. 82 Cr.P.C. – Filing of an 
anticipatory bail application through an advocate – Whether 
filing of such application through advocate could be treated 
as appearance before the Court:
Held: The view taken by the Gujarat High Court in Savitaben 
Govindbhai Patel & Ors. v. State of Gujarat is approved that filing 
of an anticipatory bail through an advocate would not and could 
not be treated as appearance before a court by a person against 
whom such proceedings (u/ss.82/83 of Cr.P.C.) are instituted. 
[Paras 19 and 20]
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Srikant Upadhyay & Ors. v. State of Bihar & Anr.
Case Law Cited
Lavesh v. State (NCT of Delhi), [2012] 7 SCR 469 : 
(2012) 8 SCC 730; State of Madhya Pradesh v. 
Pradeep Sharma, [2013] 12 SCR 772 : (2014) 2 SCC 
171 – relied on.
Savitaben Govindbhai Patel & Ors. v. State of Gujarat, 
2004 SCC OnLine Guj 345 – approved.
Prem Shankar Prasad v. State of Bihar and Anr., [2021] 
6 SCR 1176 : (2022) 14 SCC 516; HDFC Bank Ltd. v. 
J.J.Mannan & Anr., [2009] 16 SCR 590 : 2010 (1) SCC 
679 – referred to.
Shrenik Jayantilal Jain and Anr. v. State of Maharashtra 
Through EOW Unit II, Mumbai, [2014 SCC Online Bom 
549] – referred to.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Prevention 
of Witch (Daain) Practices Act, 1999.
List of Keywords
Anticipatory bail; Pre-arrest bail; Issuance of proclamation; 
Adjournment of bail application; Interim order; Trial Court orders; 
Issue of non-bailable warrant; Disobedience by conduct; Steps 
for proclamation.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1552 
of 2024
From the Judgment and Order dated 04.04.2023 of the High Court 
of Judicature at Patna in CRLM No.67668 of 2022
Appearances for Parties
Basant R Sr. Adv., Anand Shankar, Debashis Mukherjee, Param 
Nand, Kavinesh Rm, Onkar Nath, Advs. for the Appellants.
Anshul Narayan, Prem Prakash, Bhanwar Pal Singh Jadon, Susheel 
Tomar, Satya Prakash, Chetan Jadon, Ms. Abha R. Sharma, Advs. 
for the Respondents.
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Judgment / Order of the Supreme Court
Judgment
C.T. Ravikumar, J.
Leave granted.
1.	
This appeal is directed against the order dated 04.04.2023 in CRLM 
No.67668 of 2022 passed by the High Court of Judicature at Patna 
whereby and whereunder the application for anticipatory bail filed 
by the appellant was dismissed. The pre-arrest bail application was 
moved in connection with FIR No.79 of 2020, registered 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, 1860 (for short, ‘IPC’) 
and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999 
(for short, ‘the Daain Act’).
2.	
Heard, Mr. Basant R., learned Senior Counsel for the appellants 
and Mr. Anshul Narayan, learned counsel for the respondent-State. 
3.	
The question of seminal importance that arises for consideration can 
better be explained and understood by referring to a decision of this 
Court in Prem Shankar Prasad v. State of Bihar and Anr.1, which 
was rendered after referring to the earlier decisions of this Court 
in State of Madhya Pradesh v. Pradeep Sharma2 and Lavesh v. 
State (NCT of Delhi)3. In Lavesh’s case (supra), this Court held in 
paragraph 12 thus: -
“12. 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 
1	
[2021] 6 SCR 1176 : (2022) 14 SCC 516
2	
[2013] 12 SCR 772 : (2014) 2 SCC 171
3	
[2012] 7 SCR 469 : (2012) 8 SCC 730
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Srikant Upadhyay & Ors. v. State of Bihar & Anr.
of Section 82 of the Code he is not entitled to the relief 
of anticipatory bail.”
(Underline supplied)
4.	
In the decision in Pradeep Sharma’s case (supra) this Court held that 
if anyone is declared as an absconder/proclaimed offender in terms 
of Section 82 Cr.PC., he is not entitled to relief of anticipatory bail. 
After extracting Section 438, Cr.PC., it was further held therein thus:-
“The above provision makes it clear that the power 
exercisable under Section 438 of the Code is somewhat 
extraordinary in character and it is to be exercised only 
in exceptional cases where it appears that the person 
may be falsely implicated or where there are reasonable 
grounds for holding that a person accused of an offence 
is not likely to otherwise misuse his liberty.” 
5.	
In Prem Shankar Prasad’s case (supra), this Court took note of the 
fact that the respondent-accused was absconding and concealing 
himself to avoid service of warrant of arrest and the proceedings 
under Sections 82/83, Cr.PC have been initiated against him, set 
aside the order of the High Court granting anticipatory bail ignoring 
the proceedings under Sections 82/83, Cr.PC. Thus, it is obvious 
that the position of law, which was being followed with alacrity, is 
that in cases where an accused against whom non-bailable warrant 
is pending and the process of proclamation under Sections 82/83, 
Cr.PC is issued, is not entitled to the
relief of anticipatory bail. 
6.	
The learned Senior Counsel appearing for the appellants-accused 
would contend that the well-nigh settled position of law in respect 
of pre-arrest bail as above, is inapplicable in a case where a 
person apprehending arrest has already filed an application seeking 
anticipatory bail and it is pending sans any interim orders and during 
its pendency if the Trial Court issues proclamation under Section 
82, Cr.PC. In short, the proposition of law raised is – when an 
application seeking anticipatory bail filed by a person apprehending 
arrest is pending without any interim protection, whether initiation of 
proceeding for issuance of proclamation under Section 82, Cr. PC 
would make that application worthy for further consideration on its 
own merits? According to the learned Senior Counsel appearing for 
the appellants even in such envisaged circumstances and despite
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the pendency of non-bailable warrant, the pending application for 
anticipatory bail is liable to be considered on its own merits and at 
any rate, on the aforesaid grounds the pending application of pre-
arrest bail could not be dismissed. 
7.	
Per contra, the learned counsel appearing for the State vehemently 
opposed the proposition(s) mooted on behalf of the appellants. It is 
submitted that the issuance of non-bailable warrant and initiation of 
the proceedings under Section 82, Cr.PC are justiciable. Certainly, 
in the absence of an interim protection, there can be no legal 
trammel for issuing non-bailable warrant or for initiating proceedings 
under Section 82, Cr. PC. merely because of the pendency of an 
application for anticipatory bail though more often than not, under such 
circumstances subordinate Courts would wait for orders of the High 
Court. It be so, existence of any such circumstance would disentitle 
a person to press for pre-arrest bail. Even a pending application is 
not maintainable, it is contended. 
8.	
It is thus obvious from the catena of decisions dealing with bail 
that even while clarifying that arrest should be the last option and it 
should be restricted to cases where arrest is imperative in the facts 
and circumstances of a case, the consistent view is that the grant of 
anticipatory bail shall be restricted to exceptional circumstances. In 
other words, the position is that the power to
grant anticipatory bail 
under Section 438, Cr. PC is an exceptional power and should be 
exercised only in exceptional cases and not as a matter of course. 
Its object is to ensure that a person should not be harassed or 
humiliated in order to satisfy the grudge or personal vendetta of the 
complainant. (See the decision of this Court in HDFC Bank Ltd. v. 
J.J.Mannan & Anr.4). 
9.	
When a Court grants anticipatory bail what it actually does is only to 
make an order that in the event of arrest, the arrestee shall be released 
on bail, subject to the terms and conditions. Taking note of the fact 
the said power is to be exercised in exceptional circumstances and 
that it may cause some hinderance to the normal flow of investigation 
method when called upon to exercise the power under Section 438, 
Cr.PC, courts must keep reminded of the position that law aides only 
4	
[2009] 16 SCR 590 : 2010 (1) SCC 679
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Srikant Upadhyay & Ors. v. State of Bihar & Anr.
the abiding and certainly not its resistant. By saying so, we mean 
that a person, having subjected to investigation on a serious offence 
and upon making out a case, is included in a charge sheet or even 
after filing of a refer report, later, in accordance with law, the Court 
issues a summons to a person, he is bound to submit himself to the 
authority of law. It only means that though he will still be at liberty, 
rather, in his right, to take recourse to the legal remedies available 
only in accordance with law, but not in its defiance. We will dilate this 
discussion with reference to the factual matrix of this case. However, 
we think that before dealing with the same, a small deviation to 
have a glance at the scope and application of the provisions under 
Section 82, Cr.PC will not be inappropriate. 
10.	 There can be little doubt with respect to the position that the sine 
qua non for initiation of an action under Section 82, Cr. PC is prior 
issuance of warrant of arrest by the Court concerned. In that regard 
it is relevant to refer to Section 82 (1), Cr. PC, which reads thus: - 
“82. Proclamation for person absconding. — (1) If 
any Court has reason to believe (whether after taking 
evidence or not) that any person against whom a warrant 
has been issued by it has absconded or is concealing 
himself so that such warrant cannot be executed, such 
Court may publish a written proclamation
requiring him 
to appear at a specified place and at a specified time 
not less than thirty days from the date of publishing such 
proclamation.”
11.	 The use of expression ‘reason to believe’ employed in Section 82 
(1) Cr. PC would suggest that the Magistrate concerned must be 
subjectively satisfied that the person concerned has absconded or has 
concealed himself. In the context of Section 82, Cr. PC, we will have 
to understand the importance of the term ‘absconded’. Its etymological 
and ordinary sense is that one who is hiding himself or concealing 
himself and avoiding arrest. Since the legality of the proceedings 
under Section 82, Cr. PC is not under challenge, we need not go 
into that question. As noticed above, the nub of the contentions is 
that pending the application for pre-arrest bail, proclamation under 
Section 82, Cr.P.C., should not have been issued and at any rate, 
its issuance shall not be a reason for declining to consider such 
application on merits. Bearing in mind the position of law revealed
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from the decisions referred to hereinbefore and the positions of law, 
we will briefly refer to the factual background of the case. 
12.	 For considering the aforesaid proposition of law, we think it 
absolutely unnecessary to deal with FIR No. 37 of 2018 dated 
28.03.2018 filed against Respondent No.2, Mr. Rajiv Kumar 
Upadhyay and four others, and also FIR No.66 of 2018 registered 
against appellant No.4 (first accused) and four other family members 
of the appellants. Civil Suit No.140 of 2019 filed against the family 
members of the appellants for illegal encroachment is also not 
to be considered as nothing would turn out of it in relation to the 
question posed for consideration. We may hasten to add that if 
the question whether the appellants are entitled to anticipatory 
bail survives, even after answering the aforementioned question(s) 
posed for consideration, we may refer to the relevant aspects in 
relation to the said cases. 
13.	 As noticed hereinbefore, the appellants herein moved the application 
for anticipatory bail in connection with FIR No.79 of 2020 registered 
at Govindgunj Police Station. It is a fact that the subject FIR was 
registered pursuant to the directions of the learned Chief Judicial 
Magistrate, East Champaran, Motihari on complaint No.395 of 
2020 filed by Respondent No.4 under Section 156 (3), Cr. PC. The 
allegations in the complaint are as follows: - 
On 22.02.2020, at about 8.00 am,
when Jagmati Kunwar, the 
grandmother of respondent No.4 reached in front of the house 
of appellant No.2, Shashikant Upadhyay, he said that she is the 
witch who made his child sick and shall not be spared. Then, the 
appellants and eight other family members gathered around her 
and the 4th appellant caught hold of her hair and asked the others 
to bring dung. Thereupon, accused Paritosh Kumar brought dung 
and accused Rishu put dung into the mouth of Jagmati Kunwar. 
Consequently, she vomited and fell down. When respondent No.2/ 
complainant and other witnesses went for her help, the second 
appellant Shashikant Upadhayay assaulted and abused respondent 
No.2. Co-accused Paritosh Kumar and Jishu Kumar tore the blouse 
of Kiran Devi and she was disrobed. Another co-accused Soni 
Devi snatched a gold chain from the complainant. The co-accused 
Ravikant and appellant No.5 tore the clothes of Jagmati Kunwar 
and made her half-naked.
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14.	 Later, after completing the investigation, charge sheet was filed on 
08.08.2022 only for offences under Sections 341, 323 and 504 IPC, 
that too only against accused Lakhpati Kunwar (accused No.7). 
However, the learned Trial Court, on perusal of the FIR, charge 
sheet and case diary found that sufficient materials are available in 
the case diary to proceed against the other 12 accused, including 
the appellants herein and accordingly vide order dated 20.02.2021 
took cognizance of the offences under Sections 341, 323, 354B, IPC 
and Section 3/4 of the Daain Act and issued summons to all accused 
including the appellants and fixed 12.04.2022 as the date for their 
appearance. The accused were absent on that day and hence on 
12.04.2022, the Trial Court issued bailable warrants. On 25.05.2022, 
the accused, other than the appellants herein, appeared and applied 
for regular bail before the Trial Court and the Trial Court granted them 
regular bail. Subsequently, the complainant/the second respondent 
herein, applied for cancellation of bail granted to them and as per the 
order dated 09.06.2022 the grantees of bail were issued with show 
cause notices. Upon receiving the notice for cancellation of bail, 
they unsuccessfully approached the Sessions Court challenging the 
order taking cognizance, in Criminal Revision Petition No.94 of 2022. 
Pursuant to the dismissal of the Revision Petition, the
Trial Court posted 
the application for cancellation of bail on different dates. The fact is that 
despite such developments, the appellants herein neither appeared 
before the Trial Court nor sought for regular bail. In the meanwhile, 
the appellants herein moved a bail-cum-surrender application 
(described as such by them), before the Trial Court. However, it 
was withdrawn on 23.08.2022 on the fear of arrest. Thereupon, 
the Trial Court fixed the date for appearance of the appellants on 
30.08.2022. Before the date fixed for their appearance, the appellants 
filed application for anticipatory bail before the Sessions Court and, 
thereafter on 06.09.2022, informed the Trial Court about its listing 
before the Sessions Court on 27.09.2022 for final hearing. The Trial 
Court thereupon posted the matter for appearance of the appellants 
to 11.10.2022. The anticipatory bail moved by the appellants was 
dismissed on 27.09.2022 and thereupon, the Trial Court took up the 
matter on 03.11.2022. Since the appellants remained absent, the Trial 
Court issued non-bailable warrants and listed the matter to 04.11.2022 
for their production. Meanwhile, the appellants herein approached the 
High Court by filing CRLM No.67668 of 2022 seeking anticipatory 
bail. It is to be noted that non-bailable warrants were pending against
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them when they moved the said application for anticipatory bail. On 
04.12.2022, on behalf of the appellants, the Trial Court was informed 
about the filing of anticipatory bail application before the High Court. 
Consequently, the matter was listed on 04.01.2023. On 04.01.2023, 
pursuant to the non-appearance of the appellants despite the earlier 
order for their appearance and the issuance of non-bailable warrants, 
the Trial Court issued proclamation under Section 82(1), Cr. PC. 
Later, proceedings under Section 83, Cr.PC were also initiated. On 
15.03.2023, on behalf of the appellants it was prayed to postpone 
the process under Section 82/83, Cr. PC. However, the Trial Court 
proceeded to issue the process under Section 83, Cr. PC, based 
on the proclamation under Section 82(1) Cr.PC. On 04.04.2023, the 
application for anticipatory bail filed by the appellants was dismissed, 
obviously taking note of the proceedings under Sections 82/83, Cr. 
PC and observing that owing to such developments the application 
for pre-arrest bail could not be maintained. 
15.	 The core contention of the appellants is that the rejection of the 
application for anticipatory bail without considering the application on 
merits for the reason of issuance of proclamation under Section 82, 
Cr. PC, is unsustainable. It is the further contended that at no stage, 
the appellants were “evading the arrest” or “absconding” but were 
only exercising
their legal right to seek anticipatory bail. It is in the 
aforesaid circumstances that the learned Senior Counsel appearing 
for the appellants raised the contention that when an application for 
anticipatory bail is pending, the issuance of proclamation, following 
issuance of non-bailable warrant could not be a reason for non-
considering the application for anticipatory bail on merits. 
16.	 For a proper consideration of the aforesaid contentions and allied 
questions, it is only appropriate to refer to certain provisions of law 
as also certain relevant decisions. From the chronology of events 
narrated hereinbefore, it is evident that for reasons best known to 
the appellants, subsequent to the filing of the final report in terms of 
the provisions under Section 173 (2), Cr.P.C in FIR No.79/2020 and 
issuance of summons, issuance of bailable warrants and issuance 
of non-bailable warrants; pursuant to the failure of the appellants 
to appear before the Court on the date fixed for their appearance 
based on bailable warrants, they did not care to take any action 
in accordance with law except moving applications for bail. Same 
was the position even after the issuance of the proclamation under
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Section 82, Cr.PC. As noted earlier, in the case of similarly situated 
co-accused of the appellants, they appeared and obtained regular 
bail pursuant to the issuance of bailable warrants. Thus, a scanning 
of the acts and omissions of the appellants, it can only be seen that 
virtually, the appellants were defying the authority of law and moving 
applications for bail when they apprehended arrest owing to their 
non-attendance and dis-obedience. It is in the context of the aforesaid 
facts revealed from the materials on record that the contention of the 
appellants that they were only pursuing their right to file application 
for anticipatory bail and, therefore, they were not either evading the 
arrest or absconding, has to be appreciated. 
17.	 Section 70 (2), Cr. PC mandates that every warrant issued under Section 
70 (1), Cr. PC shall remain in force until it is cancelled by the Court which 
issued it, or until it is executed. In this case, as noticed hereinbefore, 
the bailable warrants and thereafter the non-bailable warrants, were 
issued against the appellants. They were neither cancelled by the 
Trial Court nor they were executed. It is not their case that they have 
successfully challenged them. Sections 19, 20, 21, 174 and 174 A, IPC 
assume relevance in this context. They, insofar as relevant read thus:
19. “Judge”. —The word “Judge” denotes not only every 
person who is officially
designated as a Judge, but also 
every person
who is empowered by law to give, in any legal proceeding, 
civil or criminal, a definitive judgment, or a judgment which, 
if not appealed against, would be definitive, or a judgment 
which, if confirmed by some other authority, would be 
definitive, or who is one of a body or persons, which body 
of persons is empowered by law to give such a judgment. 
20. “Court of Justice”.—The words “Court of Justice” 
denote a Judge who is empowered by law to act judicially 
alone, or a body of Judges which is empowered by law 
to act judicially as a body, when such Judge or body of 
Judges is acting judicially. 
21. “Public servant”.—The words “public servant” denote 
a person falling under any of the descriptions hereinafter 
following, namely:—
…
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[Third.—Every Judge including any person empowered by 
law to discharge, whether by himself or as a member of 
any body of persons, any adjudicatory functions;] 
174. Non-attendance in obedience to an order from 
public servant.—Whoever, being legally bound to attend 
in person or by an agent at a certain place and time in 
obedience to a summons, notice, order, or proclamation 
proceeding from any public servant legally competent, as 
such public servant, to issue the same,
intentionally omits to attend at that place or time, or departs 
from the place where he is bound to attend before the 
time at which it is lawful for him to depart,
shall be punished with simple imprisonment for a term 
which may extend to one month, or with fine which may 
extend to five hundred rupees, or with both,
or, if the summons, notice, order or proclamation is to 
attend in person or by agent in a Court of Justice, with 
simple imprisonment for a term which may extend to six 
months, or with fine which may extend to one thousand 
rupees, or with both.
174A .Non-appearance in response to a proclamation 
under section 82 of Act 2 of 1974.— Whoever fails to 
appear at the specified place and the specified time as 
required by a proclamation published under sub-section 
(1) of section 82 of the Code of Criminal Procedure, 1973 
shall be punished with imprisonment for a term which 
may extend to three years or with fine or with both, and 
where a
declaration has been made under sub-section 
(4) of that section pronouncing him as a proclaimed 
offender, he shall be punished with imprisonment for a 
term which may extend to seven years and shall also 
be liable to fine.
18.	 Taking note of the aforesaid facts with respect to the issuance of 
summons, warrants and subsequently the proclamation, a conjoint 
reading of Sections 19, 20 and 21, IPC containing the terms “Judge”, 
“Court of Justice” and “Public Servant” and Sections 174 and 174A, 
IPC can make them liable even to face further proceedings. Same is
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Srikant Upadhyay & Ors. v. State of Bihar & Anr.
the position in case of non-attendance in obedience to proclamation 
under Section 82, Cr. PC.
19.	 Bearing in mind the aforesaid provisions and position, we will refer 
to certain relevant decisions. In Savitaben Govindbhai Patel & 
Ors. v. State of Gujarat5, the High Court of Gujarat observed thus: -
“9. Filing of an Anticipatory Bail Application by the 
petitioners-accused through their advocate cannot be 
said to be an appearance of the petitioners-accused in 
a competent Court, so far as proceeding initiated under 
Section 82/83 of the Code is concerned; otherwise each 
absconding accused would try to create shelter by filing an 
Anticipatory Bail Application to avoid obligation to appear 
before the court and raises the proceeding under Section 
83 of the Code claiming that he cannot be termed as an 
absconder in the eye of law. Physical appearance before 
the Court is most important, if relevant scheme of Sections 
82 and 83, is read closely.”
(underline supplied)
20.	 We are in full agreement with the view taken by the Gujarat High 
Court that filing of an anticipatory bail through an advocate would 
not and could not be treated as appearance before a court by a 
person against whom such proceedings, as mentioned above are 
instituted. The meaning of the term “absconded” has been dealt by 
us hereinbefore. We found that its etymological and original sense 
is that the accused is hiding himself.
What is required as proof for 
absconding is the evidence to the effect that the person concerned 
was knowing that he was wanted and also about pendency of 
warrant of arrest. A detailed discussion is not warranted in this case 
to understand that the appellants were actually absconding. It is not 
in dispute that they were served with the “summons”. The fact that 
bailable warrants were issued against them on 12.04.2022 is also 
not disputed, as the appellants themselves have produced the order 
whereunder bailable warrants were issued against them. We have 
already referred to Section 70 (2), Cr. PC which would reveal the 
position that once a warrant is issued it would remain in force until it 
5	
2004 SCC OnLine Guj 345
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is cancelled by the Court which issued it or until its execution. There 
is no case for the appellants that either of such events had occurred 
in this case to make the warrants unenforceable. They also got no 
case that their application was interfered with by a higher Court. That 
apart, it is a fact that the appellants themselves on 23.08.2022, moved 
a bail-cum-surrender application before the Trial Court but withdrew 
the same fearing arrest. It is also relevant to note that in the case 
on hand even while contending that they were before a Court, the 
appellants got no case that in terms of the provisions under Section 
438 (1-B), Cr. PC an order for their presence before the Court was 
ordered either suo motu by the Court or on an application by the 
public prosecutor. When that be the circumstance, the appellants 
cannot be allowed to contend that they were not hiding or concealing 
themselves from arrest or that they were not knowing that they were 
wanted in a Court of law. 
21.	 To understand and consider another contention of the appellants 
it is worthy to extract ground No.3 raised by the appellants in SLP 
which reads thus:
“III. Because the Hon’ble High Court has failed to appreciate 
that proclamation under section 82 Cr.P.C. was issued 
on 04.01.2023 by the Ld. Trial Court and thereafter 
process under section 83 Cr.P.C. have been initiated on 
15.03.2023 whereas the application for anticipatory bail 
by
the petitioner before the Hon’ble High Court was filed 
in November, 2022, however, the same was came for 
hearing on 04.04.2023. It is, therefore, evident that when 
the petitioners preferred filing of anticipatory bail before 
the Hon’ble High Court then none of the petitioner was 
declared absconder and process under section 82/83 
Cr.P.C. were not initiated against them.”
22.	 The above extracted ground taken by the appellant constrains us to 
consider the question whether there could be any bar on the Trial 
Court for proceeding under Section 82 Cr.PC, 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. In the case on hand, application for anticipatory 
bail was filed by the appellants before the High Court in November, 
2022 and brought up for hearing on 04.04.2023, on which day it was
[2024] 3 S.C.R. 
435
Srikant Upadhyay & Ors. v. State of Bihar & Anr.
dismissed as per the impugned order. The very ground, extracted 
above, would reveal that in the meanwhile, proclamation under 
Section 82 Cr.PC, was issued on 04.01.2023 and thereafter process 
under Section 83 Cr.PC was initiated on 15.03.2023.
23.	 There can be no room for raising a contention that when an application 
is filed for anticipatory bail, it cannot be adjourned without passing an 
order of interim protection. A bare perusal of Section 438 (1), Cr.PC, 
would reveal that taking into consideration the factors enumerated 
thereunder the Court may either reject the application forthwith or 
issue an interim order for the grant of anticipatory bail. The proviso 
thereunder would reveal that if the High Court or, the Court of 
Sessions, as the case may be, did not pass an interim order under 
this 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 the person concerned without warrant, on the basis of the 
accusation apprehended in such application. In view of the proviso 
under Section 438(1), Cr.PC, 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. In short, nothing prevents the court from 
adjourning such an application without passing an interim
order. This 
question was considered in detail by a Single Bench of the High Court 
of Bombay, in the decision in Shrenik Jayantilal Jain and Anr. v. 
State of Maharashtra Through EOW Unit II, Mumbai6 and answered 
as above and we are in agreement with the view that in such cases, 
there will be no statutory inhibition for arrest. Hence, the appellants 
cannot be heard to contend that the application for anticipatory bail 
filed in November, 2022 could not have been adjourned without 
passing interim order. At any rate, the said application was rejected 
on 04.04.2023. Pending the application for anticipatory bail, in the 
absence of an interim protection, if a police officer can arrest the 
accused concerned how can it be contented that the court which 
issued summons on account of non-obedience to comply with its 
order for appearance and then issuing warrant of arrest cannot 
proceed further in terms of the provisions under Section 82, Cr.PC, 
merely because of the pendency of an application for anticipatory 
bail. If the said position is accepted the same would be adopted as 
6	
[2014 SCC Online Bom 549]
436
[2024] 3 S.C.R.
Digital Supreme Court Reports
a ruse to escape from the impact and consequences of issuance of 
warrant for arrest and also from the issuance of proclamation under 
Section 82, Cr.PC, by filing successive applications for anticipatory 
bail. In such circumstances, and in the absence of any statutory 
prohibition and further, taking note of the position of law which 
enables a police officer to arrest the applicant for anticipatory bail if 
pending an application for anticipatory bail the matter is adjourned 
but no interim order was passed. We have no hesitation to answer 
the question posed for consideration in the negative. In other words, 
it is made clear that 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, Cr.PC, in accordance with law.
24.	 We have already held that 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. While 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. 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. 
25.	 The factual narration made hereinbefore would reveal the consistent 
disobedience of the appellants to comply with the orders of the trial 
Court. They failed to appear before the Trial Court after the receipt of 
the summons, and then after the issuance of bailable warrants even 
when their co-accused, after the issuance of bailable warrants, applied
[2024] 3 S.C.R. 
437
Srikant Upadhyay & Ors. v. State of Bihar & Anr.
and obtained regular bail. Though the appellants filed an application, 
which they themselves described as “bail-cum-surrender application” 
on 23.08.2022, they got it withdrawn on the fear of being arrested. 
Even after the issuance of non-bailable warrants on 03.11.2022 
they did not care to appear before the Trial Court and did not apply 
for regular bail after its recalling. It is a fact that even after coming 
to know about the proclamation under Section 82 Cr.PC., 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 the aforesaid circumstances, leaves 
us with no hesitation to hold that they are not entitled to seek the 
benefit of pre-arrest bail. 
26.	 The upshot of the discussion is that there is no ground for interfering 
with the order of the High Court rejecting the application for anticipatory 
bail rather not considering application on merits. Since their action is 
nothing short of defying the lawful orders of the Court and attempting 
to delay the proceedings, this appeal must fail. Consequently, it is 
dismissed.
Headnotes prepared by: Ankit Gyan
Result of the case: 
Appeal dismissed.