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  • Writer's pictureTrivedi and Parashar (Advocates and Solicitors)

Judicial Update -

Supreme Court - Only in exceptional cases can anticipatory bail be granted to the proclaimed offender.

In the case of State of Haryana v. Dharamraj [Criminal Appeal No. of 2023 (Arising out of S.L.P (Crl.) No. 2256/2022)], Under Sections 147, 148, 149, 186, 323, 325, 341, 342, 353, 364 and of the Indian Penal Code, 1860 (“IPC”), a First Information Report was registered against the Respondent. The Learned Single Judge of Punjab and Haryana High Court granted an anticipatory bail to the Respondent. Aggrieved by the Order of the High Court, the Appellant filed an appeal before the Supreme Court.

The Supreme Court, after observing the facts of the case, referred to its judgement in the case of Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] and State of Madhya Pradesh v. Pradeep Sharma [(2014) 2 SCC 171], wherein the Apex Court was categorically against grant of anticipatory bail to a proclaimed offender.

Furthermore, the Supreme Court also cited several judgements in the case of Mahipal v. Rajesh Kumar alias Polia v. State of Telangana [(2018) 16 SCC 511], wherein it was held “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 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. …

The Court observed that “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.”

Further, the Court also stated that the High Court did not consider the fact that the Respondent is a proclaimed offender, and moreover, the Court also took into consideration that in an exceptional and rare case, the Apex Court or the High Courts can consider a plea seeking anticipatory bail, despite the Respondent being a proclaimed offender, given that the Supreme Court and High Courts are Constitutional Courts, no exceptional situation had arisen in this case stated that “As things were, the respondent was declared a proclaimed offender on 05.02.2021, and sought anticipatory bail from the High Court only in October, 2021. As such, it was not correct for the High Court to brush aside such factum, on the basis of averments alone.

Therefore, the Supreme Court allowed the appeal.


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