Srikant Upadhyay & Ors. [Appellants] Vs. State of Bihar & Anr.  [Respondents]

Special Leave Petition (Crl.) No.7940 of 2023

(2JB, C.T. Ravikumar and Sanjay Kumar JJ., delivered by C.T. RAVIKUMAR, J.)

Facts: The present appeal is directed against the order dated 04.04.2023 in CRLM No.67668 of 2022 passed by the High Court of Judicature at Patna whereby and whereunder the application for anticipatory bail filed by the appellant was dismissed. The pre-arrest bail application was moved in connection with FIR No.79 of 2020, registered against him and co-accused at Govidganj, Police Station, District East Champaran, Bihar, under Sections 341, 354, 354 (B), 379, 504, 506 and 149 of the Indian Penal Code, 1860 (for short, ‘IPC’) and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999 (for short, ‘the Daain Act’).

Issue: Whether the anticipatory bail of the appellant has been rightly dismissed by the high court of Judicature at Patna?

Arguments on behalf of counsel for appellant:

The learned Senior Counsel appearing for the appellants-accused would contend that the well-nigh settled position of law in respect of pre-arrest bail as above, is inapplicable in a case where a person apprehending arrest has already filed an application seeking anticipatory bail and it is pending sans any interim orders and during its pendency if the Trial Court issues proclamation under Section 82, Cr.PC. In short, the proposition of law raised is – when an application seeking anticipatory bail filed by a person apprehending arrest is pending without any interim protection, whether initiation of proceeding for issuance of proclamation under Section 82, Cr. PC would make that application worthy for further consideration on its own merits? According to the learned Senior Counsel appearing for the appellants even in such envisaged circumstances and despite the pendency of non-bailable warrant, the pending application for anticipatory bail is liable to be considered on its own merits and at any rate, on the aforesaid grounds the pending application of prearrest bail could not be dismissed.

Arguments on behalf of counsel for respondents:

Per contra, the learned counsel appearing for the State vehemently opposed the proposition(s) mooted on behalf of the appellants. It is submitted that the issuance of non-bailable warrant and initiation of the proceedings under Section 82, Cr.PC are justiciable. Certainly, in the absence of an interim protection, there can be no legal trammel for issuing non-bailable warrant or for initiating proceedings under Section 82, Cr. PC. merely because of the pendency of an application for anticipatory bail though more often than not, under such circumstances subordinate Courts would wait for orders of the High Court. It be so, existence of any such circumstance would disentitle a person to press for pre-arrest bail. Even a pending application is not maintainable, it is contended.

Held: The court dismissed the present appeal and held that, “We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.”