PREM SHANKAR PRASAD versus THE STATE OF BIHAR & ANR. on 21 October 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 14.08.2019 passed by the High Court of Judicature atPatna in Criminal Miscellaneous Application No. 50530 of 2019, by whichthe High Court has allowed the said criminal miscellaneous applicationEand has granted anticipatory bail to respondent No.2 herein – accused,the original informant – complainant has preferred the present appeal.

2. That first information report came to be filed by the appellantherein against respondent No.2 with Chapra Town Police Station, Saranin case No.453 of 2018 for the offences punishable under sections 406,F407, 468, 506 of the Indian Penal Code, 1860. A warrant of arrest cameto be issued by learned Chief Judicial Magistrate, Saran, Chapra on19.12.2018. It appears that thereafter respondent No.2 – accused isabsconding and concealing himself to avoid service of warrant of arrest.Thereafter learned Chief Judicial Magistrate issued a proclamation againstrespondent No.2 under section 82 Cr.PC. Only thereafter and issuanceGof proclamation under section 82 Cr.PC, respondent No.2 – accusedfiled anticipatory bail application before learned Trial Court. By a detailedorder dated 29.01.2019 the learned Trial Court dismissed the saidanticipatory bail application and rejected the prayer for anticipatory bailon merits as well as on the ground that as the accused is absconding andHeven the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail. That thereafter the accusedapproached the High Court by way of present application and despitethe fact that it was specifically pointed to the High Court that since theprocess of proclamation under section 82 & 83 Cr.PC have been issued,the accused should not be allowed the privilege of anticipatory bail, ignoringthe aforesaid relevant aspect, by the impugned judgment and order theHigh Court has allowed the said anticipatory bail by observing that in theevent of his arrest/surrender within six weeks in the Court below, hemay be released on bail on furnishing bail bond of Rs.10,000/- with twosureties of the like amount each to the satisfaction of the learned ChiefJudicial Magistrate, Saran, Chapra and subject to the conditions as laid-down under section 438 (2) of Cr.PC.

3. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court granting anticipatory bail to respondentNo.2 – accused, the original informant/complainant – appellant haspreferred the present appeal.

4. Shri Rituraj Biswas, learned Advocate appearing on behalf ofthe appellant has vehemently submitted that in the facts and circumstancesof the case, the High Court has committed a grave error in allowing theanticipatory bail application.

4.1 It is submitted that considering the fact that the accused wasavoiding the arrest and even did not co-operate with investigating agencyand even after the arrest warrants were issued, the proceedings undersections 82-83 of Cr.PC were initiated, the High Court ought not toallow the anticipatory bail application.

4.2 It is submitted that though the factum of initiation of proceedingsunder Section 82-83 of Cr.PC was pointed out, the High Court has simplyignored the same.

4.3 It is further submitted that even the High Court has not at allconsidered the seriousness of the offences alleged namely the offencesunder sections 406, 420 of IPC, which were in detail considered by thelearned Trial Court while rejecting the anticipatory bail application.

4.4 It is submitted that the High Court has granted the anticipatorybail to respondent No.2 solely observing that the nature of accusationarising out of a business transaction. It is submitted that merely becauseit was a business transaction, without further considering the nature ofallegations the High Court ought not to have granted the anticipatory bailto respondent No.2 - accused.

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A4.5 Relying upon the decision of this court in case of State ofMadhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171, itis submitted that as observed and held by this court a person againstwhom the proclamation has been issued and the proceedings undersections 82-83 of Cr.PC have been initiated, is not entitled to the benefitof anticipatory bail.B

4.6 It is further submitted that even subsequently a charge-sheethas been filed against the accused – respondent No.2 for the offencespunishable under sections 406 and 420 of IPC.

4.7 Making the above submissions and relying upon above decisionCof this court, it is prayed to allow the present appeal and quash and setaside the impugned judgment and order passed by the High Court grantinganticipatory bail to respondent No.2 – accused.

5. Shri Devashish Bharuka, learned Advocate appearing on behalfof the State has supported the appellant and has submitted that on beingDfound a prima facie case against respondent No.2 – accused, acharge-sheet has been filed against the accused under sections 406 and420 of IPC also.

6. Shri Abhishek, learned Advocate appearing on behalf ofrespondent No.2 has vehemently submitted that in the facts andEcircumstances of the case, the High Court has not committed any errorin granting anticipatory bail to respondent No.2 – accused.

6.1 It is submitted that the High Court has rightly observed thatthe nature of accusation is arising out of a business transaction. It issubmitted that merely because the cheque was given and the same cameFto be dishonored it cannot be said that the offences under sections 406and 420 of IPC is made out. It is submitted that at the most the case mayfall under section 138 of Negotiable Instruments Act, 1881.

6.2 It is submitted that as such respondent No.2 – accused wasavailable for interrogation and therefore there is no question ofGabsconding.

6.3 It is further submitted by the learned counsel appearing onbehalf of respondent No.2 – accused that at this stage only thecharge-sheet has been filed in the court, but the learned Magistrate hasyet to take cognizance of the same.H

7. We have heard the learned counsel appearing on behalf of theappellant – original informant - complainant as well as learned counselappearing on behalf of the State and the learned counsel appearing onbehalf of respondent no.2- accused.

7.1 It is required to be noted that after investigation a charge-sheethas been filed against respondent no.2 – accused for the offencespunishable under sections 406, 420 of IPC also. Thus it has been foundthat there is a prima facie case against the accused. It has come onrecord that the arrest warrant was issued by the learned Magistrate asfar as back on 19.12.2018 and thereafter proceedings under sections82-83 of Cr.PC have been initiated pursuant to the order passed by thelearned Chief Judicial Magistrate dated 10.01.2019. Only thereafterrespondent No.2 moved an application before the learned Trial Courtfor anticipatory bail which came to be dismissed by the learned AdditionalSessions Judge, Saran, by a reasoned order. The relevant observationsmade by the learned Additional Sessions Judge, Saran, while rejectingthe anticipatory bail application are as under:- “Perused the record. The prosecution case as alleged inthe typed application of the informant Prem Shankar Prasad isthat the informant is a retailer shopkeeper of medicines in thename of Maa Medical Store, Gandhi Chauk, Chapra and thepetitioner is his stockiest who runs his business in the name ofRajnish Pharma, Mauna Pakari. The petitioner and the informantwere on good terms, so, the informant gave Rs. 36,00,000/- to thepetitioner in case and through cheque for purchase of medicine.When the required were not supplied to the informant, theinformant demanded his Rs. 36,00,000/- then, the petitioner gavea cheque of Rs. 10,00,000/- bearing cheque no. 137763 dated25.11.2017 which was in the Canara Bank of the petitioner whichwas dishonored by the bank with a note “insufficient fund”.Thereafter the informant demanded his money in case. On20.06.18 but, the brothers of the petitioner misbehaved with theinformant. The brothers of the petitioner also threatened not tocontact the police or the consequences will be worst: On thisinformant Chapra Town PS No. 453/2018 was registered andinvestigation proceeded.

Perused the case diary from which it transpires that in para4 there is a re-statement of the informant in which he has supported A

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SUPREME COURT REPORTS

Athe prosecution case. In para 8, 9, 10, and 11 witness Amit KumarSinha, Awadhesh Kumar, Dhannu Kumar and Uday ShankarPrasad has been examined under section 161 of Cr.PC in whichthey have supported the prosecution case. In para 16 there issupervision note of SDPO, Sadar in which prosecution case. Infound true under sections 420, 406 of IPC and 138 of NI Act. InBpara 23 processes under sections 82 and 83 of Cr.PC have beenissued against the petitioner in para 38 there is a statement ofwitness Ashutosh Mishra who is a medical representative andhas stated that Rajnish Srivastava, being stockiest of the medicineused to sell the medicines of his company in course whereof heChas borrowed a sum of Rs. 7,10,000/- from him. When he askedto return back the money he has issued a cheque of the aforesaidamount which was dishonor by his bank due to insufficient fund.In para 39 another witness Pramod Kumar Thakur has beenexamined who has deposed that this petitioner Rajnish Srivastavahas borrowed a sum of Rs. 10,00,000/- on the pretext of purchasingDa piece of land. When he demanded his money back. RajnishSrivastava gave a cheque of the aforesaid amount which wasdishonored by the bank. The investigation in the case is still goingon.

From perusal of the case record I find that the informantEhas alleged to have given a sum of Rs. 36,00,000/- to this petitionerin order to supply certain medicines which was neither suppliednor the amount was ever refunded. Admittedly, the said amountwas given to the petitioner on an oral undertaking as there is nothingon record to substantiate the aforesaid averments, but, the factFremains that the petitioner in order to refund the said amount hasissued a cheque of Rs.10,00,000/- bearing cheque no. 137763 dated25.11.2017 which was deposed by the informant in the bank, but,the same was dishonored with record I further find that thepetitioner is in the habit of borrowing money from different personsand then used to make default in payment inasmuch as by issuingGcheques without sufficient balance in his account which transpiresform paras 38 and 39 of the case diary.”

7.2 Despite the above observations on merits and despite the factthat it was brought to the notice of the High Court that respondent No.2– accused is absconding and even the proceedings under sections 82-83Hof Cr.PC have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has grantedanticipatory bail to respondent No.2 – accused by observing that thenature of accusation is arising out of a business transaction. The specificallegations of cheating, etc., which came to be considered by learnedAdditional Sessions Judge has not at all been considered by the HighCourt. Even the High Court has just ignored the factum of initiation ofproceedings under sections 82-83 of Cr.PC by simply observing that “bethat as it may”. The aforesaid relevant aspect on grant of anticipatorybail ought not to have been ignored by the High Court and ought to havebeen considered by the High Court very seriously and not casually.

7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma(Supra), it is observed and held by this court that if anyone is declared asan absconder/proclaimed offender in terms of section 82 of Cr.PC, he isnot entitled to relief of anticipatory bail. In paragraph 14 to 16, it isobserved and held as under:- “14. In order to answer the above question, it is desirable to referto Section 438 of the Code which reads as under:

“438. Direction for grant of bail to person apprehendingarrest.—(1) Where any person has reason to believe that hemay be arrested on accusation of having committed anon-bailable offence, he may apply to the High Court or theCourt of Session for a direction under this section that in theevent of such arrest he shall be released on bail; and that courtmay, after taking into consideration, inter alia, the followingfactors, namely—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as towhether he has previously undergone imprisonment onconviction 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 ofinjuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim orderfor 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 AB

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this sub-section or has rejected the application for grant ofanticipatory bail, it shall be open to an officer in charge of apolice station to arrest, without warrant the applicant on thebasis of the accusation apprehended in such application.”

The above provision makes it clear that the power exercisableunder Section 438 of the Code is somewhat extraordinary incharacter and it is to be exercised only in exceptional cases whereit appears that the person may be falsely implicated or wherethere are reasonable grounds for holding that a person accused ofan offence is not likely to otherwise misuse his liberty.

15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC 303]this Court considered the scope of Section 438 of the Code asunder : (SCC pp. 311-12, para 16)

“16. Section 438 is a procedural provision which is concernedwith the personal liberty of an individual who is entitled to pleadinnocence, since he is not on the date of application for exerciseof power under Section 438 of the Code convicted for theoffence in respect of which he seeks bail. The applicant mustshow that he has ‘reason to believe’ that he may be arrested ina non-bailable offence. Use of the expression ‘reason to believe’shows that the belief that the applicant may be arrested mustbe founded on reasonable grounds. Mere ‘fear’ is not ‘belief’for which reason it is not enough for the applicant to show thathe has some sort of vague apprehension that someone is goingto make an accusation against him in pursuance of which hemay be arrested. Grounds on which the belief of the applicantis based that he may be arrested in non-bailable offence mustbe capable of being examined. If an application is made to theHigh Court or the Court of Session, it is for the court concernedto decide whether a case has been made out for granting ofthe relief sought. The provisions cannot be invoked after arrestof the accused. A blanket order should not be generally passed.It flows from the very language of the section which requiresthe applicant to show that he has reason to believe that he maybe arrested. A belief can be said to be founded on reasonablegrounds only if there is something tangible to go by on thebasis of which it can be said that the applicant’s apprehensionthat he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released onbail ‘whenever arrested for whichever offence whatsoever’.Such ‘blanket order’ should not be passed as it would serve asa blanket to cover or protect any and every kind of allegedlyunlawful activity. An order under Section 438 is a device tosecure the individual’s liberty, it is neither a passport to thecommission of crimes nor a shield against any and all kinds ofaccusations 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 orderin terms of Section 438 of the Code can be passed.”

16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC730] , this Court (of which both of us were parties) consideredthe scope of granting relief under Section 438 vis-à-vis a personwho was declared as an absconder or proclaimed offender interms of Section 82 of the Code. In para 12, this Court held asunder : (SCC p. 733)

“12. From these materials and information, it is clear that thepresent appellant was not available for interrogation andinvestigation and was declared as ‘absconder’. Normally, whenthe accused is ‘absconding’ and declared as a ‘proclaimedoffender’, there is no question of granting anticipatory bail.We reiterate that when a person against whom a warrant hadbeen issued and is absconding or concealing himself in orderto avoid execution of warrant and declared as a proclaimedoffender in terms of Section 82 of the Code he is not entitled tothe relief of anticipatory bail.”

It is clear from the above decision that if anyone is declared as anabsconder/proclaimed offender in terms of Section 82 of the Code,he is not entitled to the relief of anticipatory bail.”

Thus the High court has committed an error in granting anticipatorybail to respondent No.2 – accused ignoring the proceedings under Section82-83 of Cr.PC.

8. Even the observations made by the High Court while grantingthe anticipatory bail to respondent No.2 – accused that the nature ofaccusation is arising out of a business transaction and therefore theaccused is entitled to the anticipatory bail is concerned, the same cannot AB

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Abe accepted. Even in the case of a business transaction also there maybe offences under the IPC more particularly sections 406, 420, 467, 468,etc. What is required to be considered is the nature of allegation and theaccusation and not that the nature of accusation is arising out of a businesstransaction. At this stage, it is required to be noted that respondent No.2- accused has been charge-sheeted for the offences punishable underBsections 406 and 420, etc. and a charge-sheet has been filed in the courtof learned Magistrate Court.

9. In view of the above and for the reasons stated above, theimpugned judgment and order dated 14.08.2019 passed by the High Courtgranting anticipatory bail to respondent No.2 – accused is un-sustainableCand deserves to be quashed and set aside and is accordingly quashedand set aside. However, two weeks’ time from the date of pronouncementof this judgment is granted to respondent No.2 to surrender before theconcerned Trial Court and thereafter it will be open for respondent No.2– accused to pray for regular bail, which may be considered in accordanceDwith law and on its own merits. The present appeal is accordingly allowedin the aforesaid terms.

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Devika Gujral

Appeal allowed.

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