Arun Kumar v. State of U.P. and 3 Others

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6850 of 2023 Applicant :- Arun Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Surendra Kumar,Dashrath Lal Dwivedi,Rohan Tripathi,Shashi Kumar Dwivedi Counsel for Opposite Party :- G.A.,Kanchan Chaudhary,Karuna Chaturvedi,Reeta Kumari Hon'ble Nalin Kumar Srivastava,J.

¶1This application has been moved on behalf of the applicant - Arun Kumar seeking anticipatory bail in Case Crime No. 0023 of 2021, under Sections 363, 376 IPC and 3/4 POCSO Act, Police Station Chakeri, District Kanpur Nagar.

¶2Heard learned counsel for the applicant, learned counsel for the informant, learned counsel for the High Court Legal Services Committee as well as the learned A.G.A. for the State and perused the record.

¶3At the very outset it is submitted by the learned AGA and learned counsel for the informant that since the process under Section 82 CrPC has been issued against the applicant and he has been declared a proclaimed offender, in view of the settled legal position regarding the issue that the anticipatory bail application moved by a proclaimed offender is not maintainable, the present application is not liable to be entertained.

¶4To meet out this argument, learned counsel for the applicant has vehemently submitted that the present case lies in the category of rare and exceptional cases, so far as the grant of anticipatory bail is concerned. The anticipatory bail application was rejected by the Sessions Court at Kanpur Nagar on 20.2.2023. The applicant moved the anticipatory bail application before this Court on

3.6.2023. Process under Section 82 CrPC has been issued against the applicant on 14.5.2023. The applicant was not a wilful defaulter.

¶5In this matter, from the perusal of the record it reveals that the anticipatory bail application moved on behalf of the applicant was rejected by the Sessions Court at Kanpur Nagar on 20.2.2023. The applicant moved the anticipatory bail application before this Court on 3.6.2023. Process under Section 82 CrPC has been issued against the applicant on 14.5.2023. Investigation in the matter is going on. Hence, it is clear that at the time of issuance of process under Section 82 CrPC against the applicant no anticipatory bail application was pending and the applicant was declared proclaimed offender, as he was not cooperating with the investigation.

¶6In the recent pronouncement of the Hon'ble Apex Court in State of Haryana vs. Dharamraj, 2023 SCC Online SC 1085, decided on 29.8.2023, the legal position regarding maintainability of an application for grant of anticipatory bail to a proclaimed offender has been elucidated, which reads as under (relevant portion of paragraph 17 of the said judgment): "17. 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................."

¶7In view of the above discussions and keeping in view the conduct of the applicant and also following the dictum of the Hon'ble Apex Court in the aforesaid decision, in my view, the present case does not fall in the category of exceptional and rare case and same is not maintainable. Since the applicant was not cooperating in the investigation and remained absconded, process under Section 82 CrPC was issued against him to procure his presence.

¶8The anticipatory bail application is rejected as not maintainable. Order Date :- 17.10.2023 safi High Court of Judicature at Allahabad