Absconder can seek anticipatory bail: Himachal Pradesh High Court

 Hig h C o urt of H.P on 01 11 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr. MP(M) No. 16820Reserved on: 25th September 2020Date of Decision: 26th October 2020 Mahender Kumar...Petitioner.VersusState of Himachal Pradesh ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 YES. For the petitioner:Ms. Abhilasha Kaundal Advocate. For the respondent:Mr. Nand Lal Thakur Additional Advocate General Mr. Ram Lal Thakur Assistant A.G. and Mr. RajatChauhan Law Officer.Amicus Curiae:Mr. Ashok Tyagi AdvocateCOURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCEAnoop Chitkara Judge.On the allegations made by a girl aged 15 years against the petitioner of havingcoitus with her in the end of May 2013 by entering her home and also raping her inforest on 30th June 2013 when she was returning from school the police registered FIRNo. 82 of 2013 dated 19.07.2013 under Sections 376 506 of Indian Penal Code 1860and 4 of Protection of Children from Sexual Offences Act 2012 in PoliceStation Gohar District Mandi Himachal Pradesh disclosing cognizable and non bailable offences.2.The Police conducted the investigation took the victim for her medicalexamination got her statement recorded under S. 164 CrPC but failed to nab theaccused. Subsequently the Police filed a charge sheet without arresting the accused.After taking cognizance of the offence the Court issued Non bailable Warrants andupon its non execution allowed the application of the prosecution and proceeded1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 01 11 HCHP 2 against the accused under Section 82 CrPC and thus vide order dated 24.12.2013 declared the petitioner as a proclaimed offender. Per Paragraph 7 of the bail petition after that Learned Additional Sessions Judgeproceeded underSection 299 CrPC and recorded evidence including statement of the victim. 3.The petitioner s criminal history relating to the offences prescribing sentence ofgreater than seven years of imprisonment or when on conviction the sentence imposedwas more than three years: The contents of the petition and the status report do notreveal any criminal history.4.Briefly the allegations against the petitioner are that on 19.7.2013 the victim accompanied by her father visited the Police Station Gohar and complained to thePolice that she was a student of 10+1. On 22.6.2013 she had gone to stay with hermother s brother from where her school was approachable. On 30.6.2013 when shereturned from her school and was going towards her Mama s place then accused startedchasing her. When she reached near a temple then below the forest he caught hold ofher torn her clothes made her lie opened the string of her salwar and forciblycommitted rape upon her. After that he warned her that if she revealed this incident toanyone then he would do away with her life and ran away from that place. The victimfurther alleged that even earlier at the end of May when she was alone in her home andstudying in the corridor of her house the accused came there and asked her that he hadsome work with her and asked her to accompany him to her room. Upon that shefollowed him and the moment she entered the room he caught hold of her andcommitted rape upon her on the bed. From that day onwards he would threaten her thatif she revealed this incident to anyone he would do away with her life. Because of thethreat she could not tell the ordeal to her parents. She further stated that it was due tothis fear that she had shifted to her maternal uncle s place. She also alleged thatMahender Kumar would even write letters asking her to reply with warnings that failureto respond would lead to unimaginable consequences. She further stated to the Policethat because of fear of the accused on 15.7.2013 she had run away from her maternaluncle s house and gone to the forest and stayed in a cave alone for three days. On17.7.2013 when she was returning from the forest and walking to her home then on theway one Jyoti Parkash met her and brought her home. Based upon the aboveallegations the Police registered the FIR. Hig h C o urt of H.P on 01 11 HCHP 3 5.Ms. Abhilasha Kaundal Learned Counsel for the petitioner contends thatincarceration before the proof of guilt would cause grave injustice to the petitioner andfamily. She further argued that upon being declared a proclaimed offender the petitionervoluntarily approached this Court by filing a petition for anticipatory bail. Accusedexplains that he and the victim were in love and to make out an exceptional case further states that on noticing that the girl had an affair with one Jyoti Prakash it brokehis heart and feeling ignominious he became melancholic and on June 20 2013 leftfor a distant place far away from her. Accused further contends that due to theLockdown of the COVID 19 pandemic he was forced to return home and gotinformation that his girlfriend had lodged an FIR against him and he is a proclaimedoffender hence bail.6.While opposing the bail Mr. Nand Lal Thakur Learned Additional AdvocateGeneral contended that an absconder whom the Court has declared as a proclaimedoffender has no legal rights to file an application under Section 438 CrPC.7.Mr. Ashok Tyagi Learned Amicus Curiae carved out a distinction in thepronouncements of Hon’ble Supreme Court and states that this Court has thejurisdiction to grant anticipatory in peculiar facts even to a proclaimed offender.8.In Lavesh v. State(2012) 8 SCC 730 Hon’bleSupreme Court holds 10. … Normally when the accused is "absconding" and declaredas a "proclaimed offender" there is no question of grantinganticipatory bail. We reiterate that when a person against whoma warrant had been issued and is absconding or concealinghimself in order to avoid execution of warrant and declared as aproclaimed offender in terms of Section 82 of the Code is notentitled the relief of anticipatory bail. 9.In State of Madhya Pradesh v. Pradeep Sharma 2 SCC 171 Para 10 Supreme Court placing reliance upon Lavesh v. State held that it is clear from theabove decision that if anyone is declared as an absconder proclaimed offender in termsof Section 82 of the Code he is not entitled to the relief of anticipatory bail.10.In Balveer Singh Bundela v. The State of Madhya Pradesh 12 May 2020 M.Cr.C.No.5621 2020 single bench of Madhya Pradesh High Court observed Hig h C o urt of H.P on 01 11 HCHP 4 29. In other words if chance of fleeing from justice exists thenapplication under Section 438 of Cr.P.C. can be rejected andwhen a person is declared as proclaimed offender as per Section82 of Cr.P.C. it means that factorof Section 438ofCr.P.C. manifested in reality or in other words possibility ofapplicant to flee from justice converted into reality. To put itdifferently Section 82 of Cr.P.C. is manifestation of"Apprehension" as contained in Section 438factorofCr.P.C. The judgments pronounced by the Apex Court in thecase of Lavesh and Pradeep Sharmanowhere bar themaintainability of the application under Section 438 of Cr.P.C.in wake of person being declared as absconder under Sections82 and 83 of Cr.P.C. and understandably so because this wouldnot have been in consonance with letter and spirit ofConstitution Bench judgment of Apex Court pronounced in thecase of Gurbaksh Singh Sibbia etc.and Sushila Aggarwaland othersas well as two Judge Bench of Apex Courtin the case of Bharat Chaudhary and anotheras well asRavindra Saxenabecause these judgments categoricallyheld that anticipatory bail is maintainable even after filing ofcharge sheet and till the person is not arrested.33. Therefore in the considered opinion of this Court even ifthe police authority has declared award or prepared FarariPanchnama even then anticipatory bail application ismaintainable however it is to be seen on merits that whetherthat application deserves to be considered and allowed as perthe factors enumerated in Section 438 of Cr.P.C. itself and if anyof those factors are not satisfied then the Court certainly hasdiscretion to reject it. The said discretion has been given byConstitutional Bench decision of Hon ble Apex Court in thecase of Gurbaksh Singh Sibbia etc.11.Section 82 of CrPC neither creates any riders nor imposes any restrictions in thefiling of anticipatory bails by the proclaimed offenders. Even in Lavesh’s casewhile laying down the law on anticipatory bails to absconders Hon’ble Supreme Courtstructured the pronouncement by the words “Normally.” An analysis of entireallegations creates a possibility of the accused smitten by love became melancholic and left the area on June 20 2013 i.e. before the registration of FIR dated July 19 2013. After that compelled by the lockdown and fear created by the pandemic ofCOVID 19 returned home where for the first time he came to know about the FIRand already declared as a proclaimed offender cannot be ruled out. Resultantly the factsand circumstances are not normal. The legal maxim Domus sua cuique est tutissimumrefugium aptly describes the plight of the accused which means every man’s house is Hig h C o urt of H.P on 01 11 HCHP 5 his safest refuge. Thus the circumstances can not be termed as normal for the accused and he makes out a special case for bail. A balanced approach would work as anincentive a catalyst for proclaimed offenders to surrender to the Court of Law speedingup the process and bringing the guilty to Justice and Justice to the guilty.12.In Gurbaksh Singh Sibbia and others v. State of Punjab 1980SCC 565a Constitutional bench of Supreme Court held that the bail decision mustenter the cumulative effect of the variety of circumstances justifying the grant or refusalof bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav 2005SCC42 a three member bench of Supreme Court held that the persons accused ofnon bailable offences are entitled to bail if the Court concerned concludes that theprosecution has failed to establish a prima facie case against him or despite theexistence of a prima facie case the Court records reasons for its satisfaction for the needto release such persons on bail in the given fact situations. The rejection of bail doesnot preclude filing a subsequent application and the Courts can release on bail provided the circumstances then prevailing requires and a change in the fact situation.In State of Rajasthan Jaipur v. Balchand AIR 1977 SC 2447 SupremeCourt noticeably illustrated that the basic rule may perhaps be tersely put as bail notjail except where there are circumstances suggestive of fleeing from justice orthwarting the course of justice or creating other troubles in the shape of repeatingoffences or intimidating witnesses and the like by the petitioner who seeks enlargementon bail from the court. It is true that the gravity of the offence involved is likely toinduce the petitioner to avoid the course of justice and must weigh with us whenconsidering the question of jail. So also the heinousness of the crime. In GudikantiNarasimhulu v. Public Prosecutor High Court of Andhra Pradesh 1 SCC240 Supreme Court in Para 16 held that the delicate light of the law favoursrelease unless countered by the negative criteria necessitating that course. In DataramSingh v. State of Uttar Pradesh 3 SCC 22 Supreme Court held thatthe grant or refusal of bail is entirely within the discretion of the judge hearing thematter and though that discretion is unfettered it must be exercised judiciously and in ahumane manner and compassionately. Also conditions for the grant of bail ought not tobe so strict as to be incapable of compliance thereby making the grant of bail illusory. Hig h C o urt of H.P on 01 11 HCHP 6 13.Pre trial incarceration needs justification depending upon the offense s heinousnature terms of the sentence prescribed in the statute for such a crime probability of theaccused fleeing from justice hampering the investigation criminal history of theaccused and doing away with the victim(s) and witnesses. The Court is under anobligation to maintain a balance between all stakeholders and safeguard the interests ofthe victim accused society and State. However while deciding bail applications theCourts should discuss evidence relevant only for determining bail. The difference in theorder of bail and final judgment is similar to a sketch and a painting. However somesketches are in detail and paintings with a few strokes.14.The conduct of the victim of accompanying the accused to her bedroom withoutany resistance and subsequently without any reasons running away to the forest fromthe safe custody of her maternal uncle and staying alone in a cave for three days atleast makes out a case for bail to the petitioner. An analysis of the evidence does notjustify further incarceration of the accused nor is it going to achieve any significantpurpose making out a case for bail.15.The possibility of the accused influencing the course of the investigation tampering with evidence intimidating witnesses and the likelihood of fleeing justice can be taken care of by imposing elaborative conditions and stringent conditions. InSushila Aggarwal versus State& Another 5 SCC 1 theConstitutional Bench held that unusually subject to the evidence produced the Courtscan impose restrictive conditions.16.Given the above reasoning the Court is granting bail to the petitioner subject tothe imposition of following stringent conditions which shall be over and above andirrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC.Consequently the present petition is allowed and in the event of arrest the petitionershall be released on bail in the FIR mentioned above on his furnishing a personal bondof INR 1 00 000 with two sureties for INR 50 000to the satisfaction of the Investigator SHO of the concerned PoliceStation. The furnishing of bail bonds shall be deemed acceptance of all stipulations terms and conditions of this bail order:a)The Attesting officer shall mention on the reverse page of personal bonds the permanent address of the petitioner along with the phone number(s) Hig h C o urt of H.P on 01 11 HCHP 7 WhatsApp numberemailand details of personal bank account(s)(if available).b)The petitioner shall join investigation as and when called by theInvestigating officer or any superior officer. Whenever the investigation takesplace within the boundaries of the Police Station or the Police Post then thepetitioner shall not be called before 8 AM and shall be let off before 5 PM. Thepetitioner shall not be subjected to third degree methods indecent language inhuman treatment etc.c)The petitioner shall join and cooperate in the investigation and failure to doso shall entitle the prosecution to seek cancellation of the anticipatory bail grantedby the present order.SCC 350).d)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses the Policeofficials or any other person acquainted with the facts of the case to dissuadethem from disclosing such facts to the Police or the Court or to tamper with theevidence.e)The petitioner shall not in any manner try to delay the trial. The petitionerundertakes to appear before the concerned Court on the issuance ofsummons warrants by such Court. The petitioner shall attend the trial on eachdate unless exempted. f)There shall be a presumption of proper service to the petitioner about thedate of hearing in the concerned Court even if it takes place through SMS WhatsApp message E Mail or any other similar medium by the Court. g)In the first instance the Court shall issue summons and may inform thePetitioner about such summons through SMS WhatsApp message E Mail.h)In case the petitioner fails to appear before the Court on the specified date then the concerned Court may issue bailable warrants and to enable the accusedto know the date the Court may if it so desires also inform the petitioner aboutsuch Bailable warrants through SMS WhatsApp message E Mail.i)Finally if the petitioner still fails to put in an appearance then theconcerned Court may issue Non Bailable warrants to procure the petitioner spresence and send the petitioner to the Judicial custody for a period for which theconcerned Court may deem fit and proper. Hig h C o urt of H.P on 01 11 HCHP 8 j)In case of Non appearance then irrespective of the contents of the bailbonds the petitioner undertakes to pay all the expenditurethat the State might incur to produce him before suchCourt provided such amount exceeds the amount recoverable after forfeiture ofthe bail bonds and also subject to the provisions of Sections 446 & 446 A ofCrPC. The petitioner s failure to reimburse the State shall entitle the trial Court toorder the transfer of money from the bank account(s) of the petitioner. However this recovery is subject to the condition that the expenditure incurred must bespent to trace the petitioner and it relates to the exercise undertaken solely toarrest the petitioner in that FIR and during that voyage the Police had not gonefor any other purpose function what so ever.k)The petitioner shall intimate about the change of residential address andchange of phone numbers WhatsApp number e mail accounts within thirty daysfrom such modification to the police station of this FIR and the concerned Court if such stage arises.l)The petitioner shall neither stare stalk make any gestures remarks call contact message the victim either physically or through phone call orany other social media nor roam around the victim s home. The petitionershall not contact the victim.m)The petitioner shall abstain from all criminal activities. If done then whileconsidering bail in the fresh FIR the Court shall take into account that evenearlier the Court had cautioned the accused not to do so.n)During the trial s pendency if the petitioner repeats the offence or commitsany offence where the sentence prescribed is seven years or more then the Statemay move an appropriate application for cancellation of this bail.o)In case of violation of any of the conditions as stipulated in this order theState Public Prosecutor may apply for cancellation of bail of the petitioner.Otherwise the bail bonds shall continue to remain in force throughout the trialfollowing the mandate of the Constitutional Bench in Sushila Aggarwal’s case wherein the Constitutional bench held that anticipatory bail can continue until theend of the trial however the Courts can limit the bail period s tenure if unique orpeculiar features require. Hig h C o urt of H.P on 01 11 HCHP 9 17.The learned Counsel representing the accused and the Officer in whose presencethe petitioner puts signatures on personal bond shall explain all conditions of this bailorder to the petitioner in vernacular and if not feasible in Hindi or English.18.In case the petitioner finds the bail condition(s) as violating fundamental human or other rights or causing difficulty due to any situation then for modification of suchterm(s) the petitioner may file a reasoned application before this Court and after takingcognizance even before the Court taking cognizance or the trial Court as the case maybe and such Court shall also be competent to modify or delete any condition.19.This order does not in any manner limit or restrict the rights of the Police or theinvestigating agency from further investigation in accordance with law.20.The present bail order is only for the FIR mentioned above. It shall not be ablanket order of bail in any other case(s) registered against the petitioner.21.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.22.The SHO of the concerned Police Station or the Investigating Officer shallarrange to send a copy of this order preferably a soft copy to the victim at the earliest.In case the victim notices stalking or any violation of this order she may either informthe SHO of the concerned Police Station or the Trial Court or even to this Court.23.In return for the protection from incarceration the Court believes that the accusedshall also reciprocate through desirable behavior.24.I express my gratitude to Mr. Ashok Tyagi Advocate learned Amicus Curiae foroutstanding assistance and also to Ms. Abhilasha Kaundal Advocate and Mr. Nand LalThakur Learned Additional Advocate General Mr. Ram Lal Thakur Deputy AG andMr. Rajat Chauhan Law Officer for excellent assistance. The petition stands allowed in the terms mentioned above. Judge.October 26 2020

Summary: According to section 82 of Crpc the offender who has run away can seek anticipatory bail as it does not create “any riders nor imposes any restriction” on them, thus making it clear that an ‘absconder’ can approach for anticipatory bail. This remarkable judgement was passed by Himachal Pradesh High Court in the case of Mahendra Kumar versus State of Himachal Pradesh [Cr. MP (M) No. 1682 of 2020] which was headed by the Hon’ble Mr. Justice Anoop Chitkara. The petitioner was accused of raping a 15-year-old girl while she was returning from her school in the end of May 2013. The FIR was registered on 19th July 2013 under section under Sections 376, 506 of Indian Penal Code, 1860, (IPC), and 4 of Protection of Children from Sexual Offences Act, 2012, in Police Station Gohar, District Mandi, Himachal Pradesh, disclosing cognizable and nonbailable offences. The statement of the girl was recorded under section 164 CrPC after her medical examination was conducted but the police failed to capture the accused. The charge sheet was filed without arresting him. Upon the non-execution of the non-bailable warrant, the court proceeded against the accused under section 82 of CrPC and declared him as a proclaimed offender. This Court relied on the judgements passed in the case of Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, (Para 10), where the Hon’ble Supreme Court held that “10. … 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.” The Court further state that “Section 82 of Crpc neither creates any rides nor imposes any restriction in the filing of anticipatory bails by the proclaimed offenders. Even in Lavesh’s case (supra), while laying down the law on anticipatory bails to absconders, Hon’ble Supreme Court structured the pronouncement by the words, “Normally.” An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013. After that, compelled by the lockdown, and fear created by the pandemic of COVID-19, returned home, where, for the first time, he came to know about the FIR and already declared as a proclaimed offender cannot be ruled out. Resultantly, the facts and circumstances are not normal. The legal maxim Domus sua cuique est tutissimum refugium, aptly describes the plight of the accused, which means every man’s house is his safest refuge. Thus the circumstances cannot be termed as normal for the accused, and he makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty.”