Heard learned counsel for the applicant as well as learned Additional Advocate General and perused the record.
The present application under Section 438 Cr.P.C. has been filed by the applicant apprehending his arrest in Criminal Case No.1426 of 2017 (C.B.I. Vs. Indrajeet Tiwari & others), arising out of Crime No.RC0532014A0006 of P.S. CBI/SCB/Lucknow, under Sections 120-B read with Sections 201, 204, 409, 420, 467, 468, 471 & 477(A) of I.P.C. and Section 13(2) read with 13(1)(c) & (d) of Prevention of Corruption Act, Section 66 of Information Technology Act, 2000.
In the present case the accused applicant was holding post of Assistant Post Master for 38 days and during this period he passed a forged vouchers for an amount of Rs.9,46,660/- which is evident from the charge sheet filed by the C.B.I. During the course of investigation the name of the accused applicant has figured. The present accused has initially approached this Court by filing an Application u/s 482 Cr.P.C. No.252 of 2018 challenging the charge sheet. However, this Court vide order dated 04.02.2019 disposed of the aforesaid application with liberty to the petitioner to file discharge application before the competent court. The present accused applicant was granted interim protection till disposal of the application for discharge. Learned trial court vide order dated 03.04.2019 has dismissed the said discharge application. It appears that the applicant has filed a Revision bearing No.673 of 2019 against the order dated 03.04.2019 before this Court, however, no interim protection has been granted. In the meantime, coercive measures under Section 82 Cr.P.C. have been initiated against the accused applicant. After he failed to avail favourable orders in his discharge application and proceedings under Section 82 Cr.P.C. having been initiated against him, he has approached this Court under Section 438 Cr.P.C. seeking anticipatory bail.
It is well settled that once the proceedings under Section 82 Cr.P.C. have been initiated against the accused and he is declared "proclaimed offender", the question of anticipatory bail does not arise.
Hon'ble Supreme Court in the case of Lavesh Vs. State (NCT of Delhi), (2012) 8 SCC 730 had held that if the accused is "absconding" and declared as "proclaimed offender", there is no question of granting anticipatory bail to such an accused. Para 12 of the aforesaid judgment is extracted hereinunder :-
"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."
The aforesaid judgement has been followed in the case of State of M.P. Vs. Pradeep Sharma, (2014) 2 SCC 171 wherein it has been held that the power exercisable under Section 438 of Cr.P.C. 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. Para 16 of the aforesaid judgement is extracted hereinunder :-
"16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730 : (2012) 3 SCC (Cri) 1040] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis--vis 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."
The accused applicant has been avoiding his arrest on one ground or the other and once he failed on all counts, he has approached this Court only after proceedings under Section 82 Cr.P.C. declaring him a "proclaimed offender".
In view of the above, I do not find any ground to grant anticipatory bail to the applicant under Section 438 Cr.P.C., therefore, the present application is rejected.
Order Date :- 22.2.2021 Anand Sri./-