SC sets aside high court order on granting anticipatory bail to proclaimed offender
The apex court has, in several judgments, been categorical against granting anticipatory bail to proclaimed offenders barring exceptional circumstances, says Haryana law officer
Setting aside an order of the Punjab and Haryana high court granting anticipatory bail to a proclaimed offender (PO), the Supreme Court has held that the accused could not have proceeded to seek anticipatory bail without first successfully assailing the order declaring him a PO.
An apex court bench, comprising justice Ahsanuddin Amanullah and justice SVN Bhatti, in its August 29 order said that it is unable to agree with the high court (HC) that the accused, Dharamraj, was entitled to reform and course correction as he was declared a PO and such declaration subsisted on the date of the HC order of December 3, 2021.
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The SC said it is clear that the anticipatory bail application of the respondent, who is an accused in an FIR registered in Gurugram, should not have been entertained as he was a PO. In the facts and circumstances of the present case, it’s not proper for the HC to have granted anticipatory bail to the respondent, the apex court said.
‘HC lost sight of fact he was PO’
The counsel for the accused said that the investigating agency has tried to unnecessarily harass and implicate him which would be clear from manipulations done in the records in the course of investigation. He said that the state is trying to show the respondent as the culprit only on the ground that he shares a common name with an accused.
Haryana’s additional advocate general (AAG) Hemant Gupta, however, disputed the fact stating that the accused has been duly identified and allegations against him have been found to be true by the investigation agency.
“What the HC lost sight of was that the respondent was a declared proclaimed offender. The HC notes, at paragraph 28, that it was not dealing with the prayer seeking quashing of the proclamation proceedings as the same were not made part of the petition before it. As things were, the respondent was declared a PO on February 5, 2021, and sought anticipatory bail from the HC only in October 2021. As such, it was not correct for the HC to brush aside such factum, on the basis of averments alone purporting to explain the backdrop of such declaration by mere advertence to a similar-sounding name,” the top court said.
‘Judicial discretion needed for bail’
The SC said that it is cognizant that liberty is not to be interfered with easily. More so, when an order of pre-arrest bail already stands granted by the HC. “Yet, much like bail, the grant of anticipatory bail is to be exercised with judicial discretion,” the SC said.
Narrating the reasoning behind the grant of anticipatory bail to the accused, the SC said a closer perusal revealed that the maximum sentence for the offences in the FIR against the accused did not exceed seven years, the possibility of him influencing the investigation, tampering with evidence could be taken care of by imposing stringent conditions, thus declaration as a proclaimed offender was not on account of him deliberately avoiding the court and he being a first-time offender deserved a chance to reform weighed with the HC.
“The logic of the high court does not commend itself to us. We are a bit perplexed as to how, despite addition of Section 364 (kidnapping or abducting in order to murder) of the Indian Penal Code, the HC took the view that Arnesh Kumar (supra) would aid the respondent in his quest for pre-arrest bail,”’ the top court said.
“Accordingly, the impugned order of the HC granting anticipatory bail to the respondent is set aside. The respondent shall surrender before the court concerned within four weeks from today and may seek regular bail which will be considered on its own merits without being prejudiced by the present judgment,” the SC said.
