2022 (2) TMI 1442 - HC - Indian Laws

Proclaimed offender granted anticipatory bail due to pandemic confusion and lack of counsel communication

Mamta Giri Versus State of U.T. Chandigarh

The Punjab and Haryana HC granted anticipatory bail to a proclaimed offender who explained her absence was due to lack of communication from counsel and ... Seeking grant of anticipatory bail - proclaimed offender - petitioner explains that she did not know the date fixed for the case, not because of any disregard to law but due to lack of communication from counsel and later on due to confusion of pandemic - Proclaimed Offender - HELD THAT:- The petitioner has offered a satisfactory explanation which led to the passing of orders under section 82 of CrPC and her being declared a proclaimed offender. In LAVESH VERSUS STATE (NCT OF DELHI) [2012 (8) TMI 1190 - SUPREME COURT] Hon'ble Supreme Court held 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 is not entitled the relief of anticipatory bail. Section 82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders. Even in Lavesh v. State (NCT of Delhi), while laying down the law on anticipatory bails to absconders, Hon'ble Supreme Court structured the pronouncement by the words, 'Normally.' An analysis of entire allegations creates a possibility of the accused - Resultantly, the facts and circumstances are not normal. Thus, the circumstances cannot be termed as normal for the accused, and she makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty. In the present case, the maximum sentence imposable for the offences mentioned in FIR does not exceed seven years. Thus, directions passed in ARNESH KUMAR VERSUS STATE OF BIHAR & ANR [2014 (7) TMI 1143 - SUPREME COURT], apply to this petition, wherein Hon'ble Supreme Court directed all the State Governments to instruct its police officers not to arrest the accused automatically when the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine. In the facts and circumstances peculiar to this case, the petitioner makes a case for anticipatory bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. In the event of arrest, the petitioner shall be released on bail in the case, subject to his furnishing a personal bond of Rs. Ten Thousand only, and furnishing one surety for Rs. Twenty-Five thousand only, to the satisfaction of the concerned Investigator. Before accepting the sureties, the concerned officer must satisfy that if the accused fails to appear in Court, then such surety is capable of producing the petitioner before the Court - In the alternative, the petitioner may furnish a personal bond of Rs. Ten Thousand only, and hand over to the attesting officer, a fixed deposit(s) for Rs. Ten Thousand only, made in favour of Chief Judicial Magistrate of the concerned district. Petition allowed. Issues Involved:1. Whether the petitioner is entitled to anticipatory bail despite being declared a proclaimed offender.2. Whether the explanations provided by the petitioner for non-appearance justify the grant of anticipatory bail.Judgment Summary:Issue 1: Entitlement to Anticipatory Bail for a Proclaimed Offender- The petitioner, a woman and a first offender, sought anticipatory bail u/s 438 Cr.P.C. for offences u/s 279, 337, and 338 IPC, all of which are bailable. The State contended that as per judicial precedents, a proclaimed offender is not normally entitled to anticipatory bail.- Citing *Lavesh v. State (NCT of Delhi)*, the Supreme Court emphasized that anticipatory bail is generally not granted to absconders or proclaimed offenders. Similarly, in *State of Madhya Pradesh v. Pradeep Sharma*, it was reiterated that being declared an absconder/proclaimed offender disentitles one to anticipatory bail.- However, in *Vipan Kumar Dhir v. State of Punjab*, the Supreme Court considered the cooperation with the investigation and other factors before deciding on bail, indicating that each case could merit individual consideration based on its peculiar facts and circumstances.Issue 2: Justifications for Non-Appearance- The petitioner provided explanations for her non-appearance on multiple dates, attributing them to miscommunication with counsel, unawareness of non-bailable warrants (NBWs), and restrictions due to the COVID-19 pandemic. These explanations were aimed at showing that her non-appearance was not due to disregard for the law but due to circumstances beyond her control.- The court noted these explanations and considered them in the context of the bailable nature of the offences and the petitioner's status as a first offender and a woman, for whom the law makes special provisions.Conclusion:- The court found that the peculiar facts and circumstances of the case, including the petitioner's explanations and her profile as a first offender and a woman, made out a special case for the grant of anticipatory bail.- The court allowed the anticipatory bail application subject to several conditions, including the execution of a personal bond and the option to furnish a fixed deposit as surety. The court also provided detailed guidelines on the acceptance and processing of sureties or fixed deposits.Final Order:- Petition allowed. The petitioner was granted anticipatory bail with specific terms and conditions outlined to ensure compliance and appearance at trial. All pending applications related to the case were disposed of.