Anticipatory bail to Proclaimed Offenders by trial court is grave judicial indiscipline warranting disciplinary action against Presiding Officer: HC

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Read Judgement: Akhtar v. State of Haryana and others


LE Correspondent

Chandigarh, August 10, 2021: Setting aside the trial court’s grant of anticipatory bail to several accused who were declared proclaimed offenders, the Punjab and Haryana High Court has ruled that the Additional Sessions Judge, Nuh, exercised the extraordinary discretion under Section 438 Cr.P.C in favour of the proclaimed persons in an illegal and arbitrary manner, and that too after a long delay without even seeking explanation for their continuous absence from the trial proceedings. 

A Bench of Justice Manoj Bajaj observed that the accused/ private respondents were unable to justify their conduct and therefore, reasonable grounds for exercise of power under Section 439 (2) of the Code of Criminal Procedure existed. 

The Bench had no hesitation in holding that the impugned order passed by the Additional Sessions Judge violated  the directions which were earlier passed by the High Court and also various aspects like the maintainability or merits of the application, law on the subject and objections on behalf of the prosecution were not considered. 

This amounted  to grave judicial indiscipline warranting disciplinary action against the Presiding Officer, the Bench said.

“By now it is well settled law that the accused person who has been declared proclaimed person under Section 82 Cr.P.C is not entitled to the concession of pre-arrest bail and in this regard reference can be made to State of Madhya Pradesh Vs. Pardeep Sharma, 2014,” stated the Bench. 

The Bench directed the respondents to surrender before the Trial Court and in case any application for bail is filed by them, the same is to be decided in accordance with law.

The High Court allowed the Petition filed by the complainant under Section 439(2) Cr.P.C and set aside the impugned order in question.

Details of Case

Upon receiving a complaint, FIR under Sections 148, 149, 365 and 377 of the Indian Penal Code, 1860 was registered at Police Station Nagina, District Mewat against various accused, who are private respondents in the present matter before the HC.

Thereafter, during the trial proceedings before the Judicial Magistrate First Class, Ferozepur Jhirka, the accused (respondents) namely, Umar, Tarif, Rashid, Dillo, Maksood and Rafik failed to appear. In order to secure their presence, the trial court initiated proceedings under Section 82 Cr.P.C. They were finally declared proclaimed persons. 

At this stage, the accused persons filed an application under Section 438 Cr.P.C for grant of anticipatory bail. However, the same was dismissed as withdrawn on July 18, 2019. Again, a similar application was moved by them before the Additional Sessions Judge, Nuh, for the same relief, but the second application was also withdrawn on January 17, 2020. 

The respondents continued to remain absent from the trial proceedings, and made their third attempt to seek pre-arrest bail under Section 438 Cr.P.C. This time the Additional Sessions Judge extended the interim concession to the proclaimed persons and later it was made absolute. 

The matter came to the High Court when the complainant in this case filed a petition challenging the grant of anticipatory bail to the respondents by the trial court even after being declared PO. 

The petitioner mainly argued that the conduct of the accused persons was completely ignored by the Additional Sessions Judge, Nuh, while accepting their third anticipatory bail application.  

Deciding the matter, the HC Bench observed that a perusal of the impugned order passed in June, 2020, made it absolutely clear that the Additional Sessions Judge had exercised discretion in favour of the accused persons, without dealing with the objections raised by the State counsel who opposed the prayer by highlighting that the applicants are proclaimed persons. 

The High Court also opined that the Additional Sessions Judge relied upon the order whereby co-accused Nazar was granted anticipatory bail and proceeded to extend the interim concession protecting the accused persons against their arrest by imposing cost upon them, despite noticing their conduct that they had already delayed the trial proceedings intentionally. 

The HC added that the case of the co-accused Nazar was distinguishable as he had applied for anticipatory bail soon after the decision was given in the year 2017 by the Revisional Court whereas the other accused persons absconded from the trial proceedings and applied for anticipatory bail for the first time in July, 2019.

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