2023INSC784 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023

(@ OUT OF SLP (Crl.) No.2256/2022)

STATE OF HARYANA Appellant(s)

VERSUS

DHARAMRAJ Respondent(s)

J U D G M E N T

AHSANUDDIN AMANULLAH, J.

Heard learned counsel appearing for the parties.

2.Leave granted.

3.The present appeal filed by the State of Haryana

seeks cancellation of anticipatory bail granted to the

sole respondent vide Order dated 03.12.2021 (hereinafter

referred to as the “Impugned Order”) passed in CRM-M

No.49115/2021 by a learned Single Judge of the High Court

of Punjab and Haryana at Chandigarh. The respondent is

accused in First Information Report No.0239 dated

31.07.2020 at Police Station Badshahpur, Gurugram lodged

under Sections 147, 148, 149, 323, 325, 341, 342 and 427

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of the Indian Penal Code, 1860 (hereinafter referred to

as the “IPC”). Later, Sections 186, 353 and 364 of the

IPC were also included.

4.Learned counsel appearing for the appellant submits

that in the background of the nature of the allegations

and the materials collected as well as the respondent

having been declared a proclaimed offender

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, grant of

indulgence under Section 438

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of the Code of Criminal

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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.

(2)The proclamation shall be published as follows:—

(i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b)it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to

some conspicuous place of such town or village;

(c)a copy thereof shall be affixed to some conspicuous part of the Court House;

(ii)the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating

in the place in which such person ordinarily resides.

(3)A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published

on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the

requirements of this section have been complied with, and that the proclamation was published on such day.

(4)Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable

under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the

Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the

proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a

declaration to that effect.

(5)The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as

they apply to the proclamation published under sub-section (1).

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438. Direction for grant of bail to person apprehending arrest.— (1) Where any person has reason to believe that he

may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court

of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court

may, after taking into consideration, inter alia, the following factors, namely:—

(i)the nature and gravity of the accusation;

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Procedure, 1973 (hereinafter referred to as the “CrPC”)

was erroneous and misplaced. It was submitted that there

is enough evidence to show the complicity of the

appellant and further, based on this very order, other

co-accused persons have been granted the benefit of

(ii)the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on

conviction by a Court in respect of any cognizable offence;

(iii)the possibility of the applicant to flee from justice; and

(iv)where the accusation has been made with the object of injuring or humiliating the applicant by having him so

arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order

under this sub-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, without warrant the applicant on the basis of the accusation apprehended in such

application.

(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than

seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of

Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be

finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the

application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court

considers such presence necessary in the interest of justice.

(2)When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions

in such directions in the light of the facts of the particular case, as it may think fit, including—

(i)a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii)a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police

officer;

(iii)a condition that the person shall not leave India without the previous permission of the court;

(iv)such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that

section.

(3)If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation,

and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be

released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first

instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-

section (1).

(4)Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed

an offence under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian

Penal Code (45 of 1860).

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anticipatory bail, which does not serve larger public

interest.

5.Per contra, the learned counsel for the respondent,

supporting the Impugned Order, submitted that the

Investigating Agency has tried to unnecessarily harass

and implicate the respondent which would be clear from

various manipulations done in the record in the course of

investigation. Further, it is submitted that the State is

trying to show the respondent as the culprit only on the

ground that he shares common name with one accused.

6.Learned counsel for the State disputes that fact and

submits that the respondent is the person who has been

duly identified and against him the allegations levelled

are found true, per the Investigation Agency.

7.A foray, albeit brief, into relevant precedents is

warranted. This Court considered the factors to guide

grant of bail in Ram Govind Upadhyay v Sudarshan Singh ,

(2002) 3 SCC 598 and Kalyan Chandra Sarkar v Rajesh

Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v

Ashis Chatterjee, (2010) 14 SCC 496, the relevant

principles were restated thus:

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‘9. ... It is trite that this Court does not,

normally, interfere with an order passed by the

High Court granting or rejecting bail to the

accused. However, it is equally incumbent upon

the High Court to exercise its discretion

judiciously, cautiously and strictly in

compliance with the basic principles laid down in

a plethora of decisions of this Court on the

point. It is well settled that, among other

circumstances, the factors to be borne in mind

while considering an application for bail are:

(i)whether there is any prima facie or

reasonable ground to believe that the accused had

committed the offence;

(ii)nature and gravity of the accusation;

(iii)severity of the punishment in the event of

conviction;

(iv)danger of the accused absconding or fleeing,

if released on bail;

(v)character, behaviour, means, position and

standing of the accused;

(vi)likelihood of the offence being repeated;

(vii)reasonable apprehension of the witnesses

being influenced; and

(viii)danger, of course, of justice being

thwarted by grant of bail. ’

8.In Mahipal v Rajesh Kumar alias Polia , (2020) 2 SCC

118, this Court opined as under:

‘16. The considerations that guide the power of

an appellate court in assessing the correctness

of an order granting bail stand on a different

footing from an assessment of an application for

the cancellation of bail. The correctness of an

order granting bail is tested on the anvil of

whether there was an improper or arbitrary

exercise of the discretion in the grant of bail.

The test is whether the order granting bail is

perverse, illegal or unjustified. On the other

hand, an application for cancellation of bail is

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generally examined on the anvil of the existence

of supervening circumstances or violations of the

conditions of bail by a person to whom bail has

been granted. …’

9.In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak , 2023

INSC 761

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, this Court, in view of Dolat Ram v State of

Haryana, (1995) 1 SCC 349; Kashmira Singh v Duman Singh ,

(1996) 4 SCC 693 and X v State of Telangana, (2018) 16

SCC 511, held as follows:

‘13. It is also required to be borne in mind that

when a prayer is made for the cancellation of

grant of bail cogent and overwhelming

circumstances must be present and bail once

granted cannot be cancelled in a mechanical

manner without considering whether any

supervening circumstances have rendered it in

conducing to allow fair trial. This proposition

draws support from the Judgment of this Court in

Daulat Ram and others v. State of Haryana

reported in (1995) 1 SCC 349, Kashmira Singh v.

Duman Singh (1996) 4 SCC 693 and xxx v. State of

Telangana (2018) 16 SCC 511. ’

10.In XXX v Union Territory of Andaman & Nicobar

Islands, 2023 INSC 767

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, this Court noted that the

principles in Prasanta Kumar Sarkar (supra) stood

reiterated in Jagjeet Singh v Ashish Mishra , (2022) 9 SCC

321.

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2023 SCC OnLine SC 1059.

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2023 SCC OnLine SC 1062.

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11. The contours of anticipatory bail have been

elaborately dealt with by 5-Judge Benches in Gurbaksh

Singh Sibbia v State of Punjab , (1980) 2 SCC 565 and

Sushila Aggarwal v State (NCT of Delhi) , (2020) 5 SCC 1.

Siddharam Satlingappa Mhetre v State of Maharashtra,

(2011) 1 SCC 694 is worthy of mention in this context,

despite its partial overruling in Sushila Aggarwal

(supra). We are cognizant that liberty is not to be

interfered with easily. More so, when an order of pre-

arrest bail already stands granted by the High Court.

12.Yet, much like bail, the grant of anticipatory bail

is to be exercised with judicial discretion. The factors

illustrated by this Court through its pronouncements are

illustrative, and not exhaustive. Undoubtedly, the fate

of each case turns on its own facts and merits. In Vipan

Kumar Dhir v State of Punjab , (2021) 15 SCC 518, taking

note of Dolat Ram (supra) and X v State of Telangana

(supra), the Court cancelled the anticipatory bail

granted to the accused therein. Keeping all the aforesaid

in mind, we turn our attention to the facts in praesenti.

13.Having considered the matter, this Court finds that,

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in the facts and circumstances of the present case, it

was not proper for the High Court to have granted

anticipatory bail to the respondent.

14.As would be manifest from the Impugned Order, the

reasoning thereof is contained in Paragraphs 7-12. Closer

perusal reveals what weighed with the High Court:

(a)That the maximum sentence for the offences in the

First Information Report did not exceed 7 years.

(b) That the possibility of the respondent

influencing the investigation, tampering with

evidence et al, could be taken care of by imposing

stringent conditions.

(c)That the respondent’s declaration as a proclaimed

offender was not on account of him deliberately

avoiding court.

(d)That the respondent was a first-time offender and

deserved a chance to ‘ reform and course correct ’.

15.The logic of the High Court does not commend itself

to us. The High Court placed reliance on Arnesh Kumar v

State of Bihar, (2014) 8 SCC 273 to the effect that where

the offence is punishable with imprisonment for a term

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which may be less than seven years or which may extend to

seven years, whether with or without fine, there is to be

no automatic arrest. Having gone through the said

judgment as also its most recent reiteration in Md. Asfak

Alam v State of Jharkhand , 2023 INSC 660

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, we are in full

agreement with the propositions enunciated therein.

However, Section 364, IPC carries a term of imprisonment

for life or rigorous imprisonment of ten years and fine.

We are a bit perplexed as to how, despite addition of

Section 364, IPC, the High Court took the view that

Arnesh Kumar (supra) would aid the respondent in his

quest for pre-arrest bail.

16.What the High Court (also) lost sight of was that

the respondent was a declared proclaimed offender. The

High Court 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 proclaimed offender on 05.02.2021, and

sought anticipatory bail from the High Court only in

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2023 SCC OnLine SC 892.

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October, 2021. As such, it was not correct for the High

Court 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, in the petition before it, as recorded at

Paragraphs 9 and 10 of the Impugned Order. The

declaration of the respondent as a proclaimed offender,

and such declaration subsisting on the date of the

Impugned Order, we are unable to agree with the High

Court that the respondent was entitled to ‘ reform and

course correct’.

16.The respondent, without first successfully assailing

the order declaring him as a proclaimed offender, could

not have proceeded to seek anticipatory bail. Looking to

the factual prism, we are clear that the respondent’s

application under Section 438, CrPC should not have been

entertained, as he was a proclaimed offender. We may note

that in Lavesh v State (NCT of Delhi) , (2012) 8 SCC 730,

this Court was categoric against grant of anticipatory

bail to a proclaimed offender. In the same vein,

following Lavesh (supra) is the decision in State of

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Madhya Pradesh v Pradeep Sharma , (2014) 2 SCC 171, where

this Court emphasised that a proclaimed offender would

not be entitled to anticipatory bail. Of course, in an

exceptional and rare case, this Court or the High Courts

can consider a plea seeking anticipatory bail, despite

the applicant being a proclaimed offender, given that the

Supreme Court and High Courts are Constitutional Courts.

However, no exceptional situation arises in the case at

hand. Following Pradeep Sharma (supra), in Prem Shankar

Prasad v State of Bihar , 2021 SCC OnLine SC 955, this

Court was unequivocal that the High Court therein erred

in granting anticipatory bail ignoring proceedings under

Sections 82 and 83, CrPC. In Abhishek v State of

Maharashtra, (2022) 8 SCC 282, this Court concluded:

’68. As regards the implication of proclamation

having been issued against the appellant, we have

no hesitation in making it clear that any person,

who is declared as an “absconder” and remains out

of reach of the investigating agency and thereby

stands directly at conflict with law, ordinarily,

deserves no concession or indulgence. By way of

reference, we may observe that in relation to the

indulgence of pre-arrest bail in terms of Section

438 CrPC, this Court has repeatedly said that

when an accused is absconding and is declared as

proclaimed offender, there is no question of

giving him the benefit of Section 438 CrPC. [For

example, Prem Shankar Prasad v. State of Bihar,

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(2022) 14 SCC 529: 2021 SCC OnLine SC 955] … ’

17.Accordingly, in view of the discussions made

hereinabove, the Impugned Order 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.

18.The appeal stands allowed in the aforesaid terms.

Pending applications stand consigned to records. As far

as the submission of the State is that the Impugned Order

is the basis for co-accused to obtain anticipatory bail,

it is for the State to take steps, if so advised, in

accordance with law, in that behalf.

…………………………………………………J.

[AHSANUDDIN AMANULLAH]

…………………………………………………J.

[S.V.N. BHATTI]

NEW DELHI

AUGUST 29, 2023