The Allahabad High Court has rejected an anticipatory bail application observing 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.
A Single Bench of Justice Suresh Kumar Gupta passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Dr Archana Gupta.
The application under Section 438 CrPC has been filed by the applicant seeking anticipatory bail apprehending arrest in Case under Sections 419/420/467/468/471 IPC, Police Station Jaswant Nagar, District Etawah.
Counsel for the applicant has submitted that the applicant is innocent and has falsely been implicated in the case.
Counsel further submitted that as per the allegations in the FIR that the first informant is the owner and in actual physical possession over the Araji Gata No 151/1 measuring area 0.5320 hectare out of 2.3960 hectare situated at Mauja Rajmau, Tehsil- Jawant Nagar, Etawah and her name is duly recorded in the Revenue Records. With intention to grab her property, the applicant has executed an agreement to sale to one anonymous lady Prabha Devi, W/o Ramchandra and thereafter on 21.4.2017, he has executed sale deed in her favour and as such, on the basis of forged and fictitious sale deed the applicant wanted to grab the property of the first informant.
The counsel for the applicant also submitted that the whole prosecution story is totally false and concocted. The applicant purchased the land from one Prabha Devi, W/o Ramchandra after verifying the revenue records. The first agreement to sale was executed between the parties till then there was no dispute raised by anyone with regard to the property in question.
At present, the applicant is in actual physical possession of the property in question and when she started to raise construction thereon for her hospital, the first informant demanded hush money. The first informant is a prominent lady and was the Village Pradhan of the erstwhile session and when the applicant refused to do so, then the first informant lodged the FIR on the basis of false and fictitious grounds with allegations that the sale deed was executed through impersonation.
Counsel for the applicant said that the actual name of the first informant is Kanthsri @ Prabha Devi, W/o Ramchandra @ Rambabu. Thereafter the first informant filed a civil suit for cancellation of sale deed of the property in question by means of Original Suit which is pending before the Civil Judge (J.D.), Etawah.
In fact, the applicant herself was subjected to a fraud committed by the first informant herself against which the applicant herself lodged an FIR registered as case under section 420/406/467/468 against the first informant and others on 2.7.2017.
The counsel for the applicant further said that the applicant is the bonafide purchaser. Earlier after filing of the charge-sheet against the applicant, she approached the Court by means of Application U/s 482 CrPC which is still pending before this Court and till today no interim order has been passed and ultimately, the applicant moved the anticipatory bail application before the sessions court concerned but the same was duly rejected.
Counsel for the applicant also said that during the course of investigation, the applicant has been protected from arrest till filing of charge-sheet by a coordinate bench of the Court order dated 18.9.2017. There is civil dispute between the parties. During the course of investigation, the applicant fully cooperated with the investigation. But the Investigating Officer without collecting any cogent and credible evidence submitted the charge-sheet against the applicant.
It is further submitted that proceedings U/s 82 CrPC was initiated against the applicant in a routine manner. The applicant is ready to cooperate with the trial.
The counsel for the applicant further submitted that insofar as the maintainability of the anticipatory bail after issuance of process U/s 82 CrPC is concerned, the counsel for the applicant relies upon the judgement of the Court passed in Criminal Misc Anticipatory Bail Application.
Additional Government Advocate as well as the counsel for the first informant vehemently opposed the prayer of the applicant and submitted that the charge-sheet has already been submitted against the applicant in the year 2018 and the case is pending since then. After filing the charge-sheet, the applicant deliberately absented herself from the proceedings.
Consequently, the process U/s 82 CrPC has been initiated against the applicant on 22.2.2022 and she has been declared an absconder.
The Court noted that,
AGA further relied upon the judgement of the Apex Court in the case of Prem Shankar Prasad vs State of Bihar decided on 21.10.2021. The relevant para is as follows:
’16. Recently, in Lavesh v State (NCT of Delhi) [(2012) 8 SCC 730] , the Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, the Court held as under :
“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was 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 has 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 also submitted that the applicant approached the court below for seeking anticipatory bail much later after having been declared as absconder and the anticipatory bail application was rejected by the sessions court on 18.8.2022. Due to non-cooperation of the applicant, the trial is still pending before the trial court. Sufficient evidence is available against the applicant. There is no ground for false implication of the applicant. Thus, the application of the applicant is liable to be rejected.
‘Considering the entire facts and circumstances of the case, I am of the view that the accusation against the applicant is well founded. After filing of the charge-sheet against the applicant, she wilfully absented herself before the trial court and due to this, till today trial against the applicant could not commence.
Moreover, it is clear from the above decision that if anyone is declared as an absconder/ proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. Thus, this is not a fit case for anticipatory bail as per law propounded by the Apex Court’, the Court observed while rejecting the anticipatory bail application.