Not entitled to the relief of anticipatory bail if declared as an absconder / proclaimed offender : Karnataka High Court

 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER 2020 THE HON’BLE MR.JUSTICE M.G.UMA CRIMINAL PETITION NO.6734 2020 BETWEEN : S o Mahadevappa Aged about 27 years R o Harohalli Village Jayapura Hobli Mysore Taluk & District 570 008. … Petitioner By Sri.Kumara K.G. Advocate) AND : State of Karnataka Begur Police Station Chamarajanagara District 571 111. Represented by learned Special Public Prosecutor High Court of Karnataka building Bengaluru 560 001. … Respondent By Sri Vinayaka V.S. HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.300 2012 of Gundlupete P.S. 2 Chamarajanagar for the offence P U S 302 R W 34 of This Criminal Petition coming on for orders this day the Court made the following: O R D E R The petitioner is before this Court seeking grant of anticipatory bail in the event of his arrest in Crime No.300 2012 of Gundlupete Police Station for the offences punishable under Sections 302 and 201 read with Section 34 of IPC on the basis of first information lodged by the informant Sri Mahadevaiah. The brief facts of the case are that the informant was working as Watcher in Social Forest Range since five years. On 25.08.2012 he found a dead body of unknown person with a rope tied to the neck. He also noticed that the dead body is of a lady and he suspected that she might have been killed by somebody and thrown the dead body to destroy the evidence of commission of the offence. On the basis of 3 this information FIR came to be registered and investigation was undertaken. It is stated that after due investigation charge sheet was filed against all the four accused persons including the present petitioner. Learned counsel for the petitioner submits that the petitioner is arraigned as accused No.4. He was earlier granted bail subject to the conditions. But he could not appear before the trial Court for various reasons. In the meantime accused Nos.1 and 2 have died and case against them was abated. The trial against accused No.3 was conducted and he was acquitted. Learned counsel further submitted that there are no material as against the present petitioner who has been arraigned as accused No.4. He is ready and willing to appear before the trial Court and hence he prayed to allow the petition. 4 Per contra learned HCGP opposing the petition submitted that serious allegations are made as against the petitioner accused No.4 for having committed the offences under Sections 302 and 201 read with Section 34 of IPC. Initially the petitioner was granted bail subject to the conditions. But the petitioner has not complied with the said conditions and the trial Court invoking Section 82 of Cr.P.C. issued proclamation after noticing that the petitioner has absconded. Under such circumstances petitioner is not entitled to grant of anticipatory bail by this Court. Perused the material on record in the light of the rival submissions. 6. Admittedly at the initial stage this petitioner was granted bail in the present case subject to conditions. It is also admitted that the petitioner has 5 not appeared before the trial Court as directed by the Court while granting bail. It is also admitted that the proclamation under Section 82 of Cr.P.C. is already issued and NBW is pending against the petitioner. Now the question arises as to whether at this stage the petitioner once again can invoke Section 438 of Cr.P.C. seeking anticipatory bail in this regard. It is relevant to mention the decision of the Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Pradeep Sharma reported in 2 SCC 171 wherein the Court referred to its earlier judgment in the case of Lavesh vs. State reported in 8 SCC 730 extracted paragraph 12 therein and held as under: “16. Recently in Lavesh v. State NCT of Delhi) this Courtconsidered the scope of granting relief under Section 438 vis à vis a person who was declared as an absconder or proclaimed offender in terms 6 of Section 82 of the Code. In para 12 this Court held as under: 12. From these materials and information it is clear that the present appellant was not available interrogation and investigation and was declared as ‘absconder’. Normally when the accused is ‘absconding’ and declared as a ‘proclaimed offender’ 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 he is not entitled to the relief of anticipatory bail. It is clear from the above decision that absconder proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.” 7 In view of the above the position of law is clear on the subject. The petitioner was already granted bail and he had not complied with the conditions imposed in the said order. The petitioner is already proclaimed as an absconding accused and NBW is issued against him. Therefore the petitioner is not entitled to seek the discretionary relief of anticipatory bail under Section 438 of Cr.P.C. at this stage. Hence the petition is dismissed. Sd JUDGE 

Summary: Initially, the petitioner was granted bail subject to the conditions. But the petitioner has not complied with the said conditions and the trial Court invoking Section 82 of CrPC, issued proclamation after noticing that the petitioner has absconded. Under such circumstances, the petitioner is not entitled to grant of anticipatory bail, Karnataka High Court held this in, Chandru v. State of Karnataka (Crl. Petition No. 6734 of 2020) On 25.08.2012, the informant, who was working as Watcher in Social Forest Range, since five years found a dead body of unknown person with a rope tied to the neck. He also noticed that the dead body is of a lady and he suspected that she might have been killed by somebody and thrown the dead body to destroy the evidence of commission of the offence. On the basis of this information, FIR came to be registered and investigation was undertaken. It is stated that after due investigation, charge sheet was filed against all the four accused persons including the present petitioner. The  counsel for the petitioner submits that he was earlier granted bail subject to the conditions. But he could not appear before the trial Court for various reasons. In the meantime, accused Nos. 1 and 2 have died and case against them was abated. The trial against accused No.3 was conducted and he was acquitted. Learned counsel further submitted that there are no material as against the present petitioner who has been arraigned as accused No.4. He is ready and willing to appear before the trial Court and hence, he prayed to allow the petition. However, the counsel for respondent, claims that, Initially, the petitioner was granted bail subject to the conditions. But the petitioner has not complied with the said conditions and the trial Court invoking Section 82 of Cr.P.C., issued proclamation after noticing that the petitioner has absconded. Under such circumstances, the petitioner is not entitled to grant of anticipatory bail by this Court. The court was of the view that, “Initially, the petitioner was granted bail subject to the conditions. But the petitioner has not complied with the said conditions and the trial Court invoking Section 82 of Cr.P.C., issued proclamation after noticing that the petitioner has absconded. Under such circumstances, the petitioner is not entitled to grant of anticipatory bail by this Court”