सुप्रीम कोर्ट , अग्रिम जमानत नहीं

06/12/2013, सुप्रीम कोर्ट , अग्रिम जमानत नहीं

सुप्रीम कोर्ट ने कहा है कि आपराधिक मामलों की जांच में सहयोग नहीं करने वाले और अदालत से भगोड़ा घोषित आरोपी को अग्रिम जमानत नहीं दी जा सकती है।

चीफ जस्टिस पी. सदाशिवम और जस्टिस रंजन गोगोई की बेंच ने कहा कि अग्रिम जमानत देने के अदालत के अधिकार का सिर्फ अपवाद स्वरूप उन मामलों में ही इस्तेमाल होना चाहिए जहां ऐसा लगता है कि व्यक्ति को गलत फंसाया गया है।

सुप्रीम कोर्ट के पूर्व निर्णयों का हवाला देते हुए बेंच ने कहा कि यदि किसी को दंड प्रक्रिया संहिता की धारा 82 के अनुसार फरार या घोषित अपराधी करार दिया जा चुका है तो वह अग्रिम जमानत की राहत पाने का हकदार नहीं है।

बेंच ने कहा कि यह प्रावधान स्पष्ट करता है कि दंड प्रक्रिया संहिता की धारा 438 के तहत प्रदत्त अधिकार असाधारण स्वरूप का है और इसका इस्तेमाल अपवाद स्वरूप मामलों में ही किया जाना चाहिए जहां ऐसा लगता हो कि व्यक्ति को झूठा फंसाया गया है या यह लगता हो कि किसी अपराध का आरोपी व्यक्ति अपनी स्वतंत्रता का दुरुपयोग नहीं करेगा।

अदालत ने एक व्यक्ति को कथित रूप से जहर देकर मारने की घटना के बाद से ही फरार दो अभियुक्तों को अग्रिम जमानत देने का मध्य प्रदेश हाईकोर्ट का निर्णय निरस्त करते हए यह बात कही।

बेंच ने कहा कि हाईकोर्ट यह समझने में विफल रहा कि कानून में यह निश्चित व्यवस्था है कि जब किसी आरोपी को भगोड़ा घोषित कर दिया जाए और वह जांच में सहयोग नहीं कर रहा हो तो उसे अग्रिम जमानत नहीं दी जानी चाहिए।

अदालत ने कहा कि इस तथ्य के मद्देनजर दोनों अभियुक्तों को संबंधित अदालत में दो सप्ताह के भीतर समर्पण करने का निर्देश दिया जाता है। ऐसा नहीं करने पर उन्हें हिरासत में लेकर जेल भेज दिया जाए

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2049 OF 2013

(Arising out of S.L.P. (Crl.) No. 4102 of 2013)

State of Madhya Pradesh .... Appellant(s)

Versus

Pradeep Sharma ....

Respondent(s)

WITH

CRIMINAL APPEAL No. 2050 OF 2013

(Arising out of S.L.P. (Crl.) No. 4406 of 2013)

J U D G M E N T

P.Sathasivam, CJI.

1) Leave granted.

2) These appeals are filed against the orders dated

10.01.2013 and 17.01.2013 passed by the High Court of

Madhya Pradesh Principal Seat at Jabalpur in Misc. Criminal

Case Nos. 9996 of 2012 and 15283 of 2012 respectively

whereby the High Court granted anticipatory bail to the

respondents herein.

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3) Brief facts:

a) The case of the prosecution is that Rajesh Singh Thakur

(the deceased), resident of village Gopalpur, Tehsil Chaurai,

District Chhindwara, Madhya Pradesh and Pradeep Sharma

(respondent herein), resident of the same village, were

having enmity with each other on account of election to the

post of Sarpanch.

b) On 10.09.2011, Pradeep Sharma (respondent herein), in

order to get rid of Rajesh Singh Thakur (the deceased),

conspired along with other accused persons and managed to

call him to the Pawar Tea House, Chhindwara on the pretext

of setting up of a tower in a field where they offered him

poisoned milk rabri (sweet dish).

c) After consuming the same, when he left the place to

meet his sister, his condition started getting deteriorated

because of vomiting and diarrhea. Immediately, the father

of the deceased took him to the District Hospital,

Chhindwara wherefrom he was referred to the Government

Hospital, Chhindwara.

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d) Since there was no improvement in his condition, on

11.09.2011, he was shifted to the Care Hospital, Nagpur

where he took his last breath. The hospital certified the

cause of death to be poisoning. On the very same day, after

sending the information to the Police Station, Sitabardi,

Nagpur, the body was sent for the post mortem.

e) Inder Singh Thakur-father of the deceased submitted a

written complaint to the Police Station Kotwali, Chhindwara

on 13.09.2011 suspecting the role of the respondents herein.

After investigation, a First Information Report (in short ‘the

FIR’) being No. 1034/2011 dated 18.10.2011 was registered

under Sections 302 read with 34 of the Indian Penal Code,

1860 (in short ‘the IPC’).

f) On 01.08.2012, Pradeep Sharma (respondent herein)

moved an application for anticipatory bail by filing Misc.

Criminal Case No. 7093 of 2012 before the High Court which

got rejected vide order dated 01.08.2012 on the ground that

custodial interrogation is necessary in the case.

g) On 26.08.2012, a charge sheet was filed in the court of

Chief Judicial Magistrate, Chhindwara against Sanjay

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Namdev, Rahul Borkar, Ravi Paradkar and Vijay @ Monu

Brahambhatt whereas the investigation in respect of

Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh

Raghuvanshi (respondents herein), absconding accused,

continued since the very date of the incident.

h) On 21.11.2012, arrest warrants were issued against

Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh

Raghuvanshi but the same were returned to the Court

without service. Since the accused persons were not

traceable, on 29.11.2012, a proclamation under Section 82

of the Code of Criminal Procedure, 1973 (in short ‘the Code’)

was issued against them for their appearance to answer the

complaint.

i) Instead of appealing the order dated 01.08.2012,

Pradeep Sharma (respondent herein) filed another

application for anticipatory bail being Misc. Criminal Case No.

9996 of 2012 before the High Court. Vide order dated

10.01.2013, the High Court granted anticipatory bail to

Pradeep Sharma (respondent herein). Similarly, another

accused-Gudda @ Naresh Raghuvanshi was granted

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anticipatory bail by the High Court vide order dated

17.01.2013 in Misc. Criminal Case No. 15283 of 2012.

j) Being aggrieved by the orders dated 10.01.2013 and

17.01.2013, State of Madhya Pradesh has filed the above

appeals before this Court.

k) In the meantime, the respondents herein approached

the Court of Chief Judicial Magistrate, Chhindwara for the

grant of regular bail. Vide order dated 20.02.2013, the

accused persons were enlarged on bail.

4) Heard Ms. Vibha Datta Makhija, learned senior counsel

for the appellant-State and Mr. Niraj Sharma, learned

counsel for the respondents.

5) The only question for consideration in these appeals is

whether the High Court is justified in granting anticipatory

bail under Section 438 of the Code to the

respondents/accused when the investigation is pending,

particularly, when both the accused had been absconding all

along and not cooperating with the investigation.

6) Ms. Vibha Datta Makhija, learned senior counsel for the

appellant-State, by drawing our attention to the charge

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sheet, submitted that the charges filed against the

respondents/accused relate to Sections 302, 120B and 34 of

the IPC which are all serious offences and also of the fact

that both of them being absconders from the very date of

the incident, the High Court is not justified in granting

anticipatory bail that too without proper analysis and

discussion.

7) On the other hand, Mr. Niraj Sharma, learned counsel

for the respondents in both the appeals supported the order

passed by the High Court and prayed for dismissal of the

appeals filed by the State.

8) We have carefully perused the relevant materials and

considered the rival contentions.

9) In order to answer the above question, it is desirable to

refer Section 438 of the Code which reads as under:-

“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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(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.

Xxx xxx xxx”

10) The above provision makes it clear that the power

exercisable under Section 438 of the Code is somewhat

extraordinary in character and it is to be exercised only in

exceptional cases where it appears that the person may be

falsely implicated or where there are reasonable grounds for

holding that a person accused of an offence is not likely to

otherwise misuse his liberty.

11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC

303, this Court considered the scope of Section 438 of the

Code as under:-

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“16. Section 438 is a procedural provision which is

concerned with the personal liberty of an individual who is

entitled to plead innocence, since he is not on the date of

application for exercise of power under Section 438 of the

Code convicted for the offence in respect of which he seeks

bail. The applicant must show that he has “reason to

believe” that he may be arrested in a non-bailable offence.

Use of the expression “reason to believe” shows that the

belief that the applicant may be arrested must be founded

on reasonable grounds. Mere “fear” is not “belief” for

which reason it is not enough for the applicant to show that

he has some sort of vague apprehension that someone is

going to make an accusation against him in pursuance of

which he may be arrested. Grounds on which the belief of

the applicant is based that he may be arrested in nonbailable

offence must be capable of being examined. If an

application is made to the High Court or the Court of

Session, it is for the court concerned to decide whether a

case has been made out for granting of the relief sought.

The provisions cannot be invoked after arrest of the

accused. A blanket order should not be generally passed. It

flows from the very language of the section which requires

the applicant to show that he has reason to believe that he

may be arrested. A belief can be said to be founded on

reasonable grounds only if there is something tangible to

go by on the basis of which it can be said that the

applicant’s apprehension that he may be arrested is

genuine. Normally a direction should not issue to the effect

that the applicant shall be released on bail “whenever

arrested for whichever offence whatsoever”. Such “blanket

order” should not be passed as it would serve as a blanket

to cover or protect any and every kind of allegedly

unlawful activity. An order under Section 438 is a device to

secure the individual’s liberty, it is neither a passport to

the commission of crimes nor a shield against any and all

kinds of accusations likely or unlikely. On the facts of the

case, considered in the background of the legal position set

out above, this does not prima facie appear to be a case

where any order in terms of Section 438 of the Code can

be passed.”

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12) Recently, in Lavesh vs. State (NCT of Delhi), (2012)

8 SCC 730, this Court, (of which both of us were parties)

considered the scope of granting relief under Section 438

vis-à-vis to a person who was declared as an absconder or

proclaimed offender in terms of Section 82 of the Code. In

para 12, this 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 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.”

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. In the case on hand, a perusal of the materials i.e.,

confessional statements of Sanjay Namdev, Pawan Kumar @

Ravi and Vijay @ Monu Brahambhatt reveals that the

respondents administered poisonous substance to the

deceased. Further, the statements of witnesses that were

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recorded and the report of the Department of Forensic

Medicine & Toxicology Government Medical College &

Hospital, Nagpur dated 21.03.2012 have confirmed the

existence of poison in milk rabri. Further, it is brought to our

notice that warrants were issued on 21.11.2012 for the

arrest of the respondents herein. Since they were not

available/traceable, a proclamation under Section 82 of the

Code was issued on 29.11.2012. The documents (Annexure-

P13) produced by the State clearly show that the CJM,

Chhindwara, M.P. issued a proclamation requiring the

appearance of both the respondents/accused under Section

82 of the Code to answer the complaint on 29.12.2012. All

these materials were neither adverted to nor considered by

the High Court while granting anticipatory bail and the High

Court, without indicating any reason except stating “facts

and circumstances of the case”, granted an order of

anticipatory bail to both the accused. It is relevant to point

out that both the accused are facing prosecution for offences

punishable under Sections 302 and 120B read with Section

34 of IPC. In such serious offences, particularly, the

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respondents/accused being proclaimed offenders, we are

unable to sustain the impugned orders of granting

anticipatory bail. The High Court failed to appreciate that it

is a settled position of law that where the accused has been

declared as an absconder and has not cooperated with the

investigation, he should not be granted anticipatory bail.

13) In the light of what is stated above, the impugned

orders of the High Court dated 10.01.2013 and 17.01.2013 in

Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012

respectively are set aside. Consequently, the subsequent

order of the CJM dated 20.02.2013 in Crime No. 1034 of

2011 releasing the accused on bail after taking them into

custody in compliance with the impugned order of the High

Court is also set aside.

14) In view of the same, both the respondents/accused are

directed to surrender before the court concerned within a

period of two weeks failing which the trial Court is directed

to take them into custody and send them to jail.

15) Both the appeals are allowed on the above terms.

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………….…………………………CJI.

(P. SATHASIVAM)

.………….……………………………J.

(RANJAN GOGOI)

NEW DELHI;

DECEMBER 6, 2013.

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