Patna High Court
Umesh SawversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The High Court held that anticipatory bail may be granted even when proclamation proceedings under Sections 82/83 CrPC are pending, and accordingly granted bail.
Summary
Umesh Saw petitioned for anticipatory bail in a dowry harassment case (IPC 498A, 406; Dowry Prohibition Act 3,4) after a proclamation under Sections 82 and 83 of the CrPC had been issued against him for alleged abscondence. The State opposed the bail, arguing that the proclamation barred relief under Section 438 CrPC. The Court examined Supreme Court precedents on whether a proclaimed offender can obtain anticipatory bail, noting that while the general rule disfavors bail, it is not an absolute bar and may be granted in appropriate circumstances. Relying on recent judgments, the Court held that the petition was maintainable and that no exceptional factor precluded bail. Consequently, the Court granted anticipatory bail with a cash bond, sureties, and a maintenance order in favor of the informant.
Issues considered
- Whether anticipatory bail is maintainable when a proclamation under Sections 82/83 CrPC is in force.
- Whether a proclaimed offender is entitled to relief under Section 438 CrPC.
- Whether the nature of the offences (dowry harassment) precludes anticipatory bail.
Legislation cited
- B.N.S.S.
- Code of Criminal Procedure, 1973 — s. 438, 482, 82, 83
- Dowry Prohibition Act — s. 3, 4
- Indian Penal Code — s. 406, 498A
Subjects
- anticipatory bail
- proclamation under Sec 82 CrPC
- dowry harassment
- IPC 498A
- Section 438 CrPC
- maintenance order
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.65417 of 2025
Arising Out of PS. Case No.-8 Year-2009 Thana- COMPLAINT CASE District- Lakhisarai
======================================================
Umesh Saw S/o Late Musharu Saw At present R/O- Ballamgarh, P. S. -
Ballamgarh, District- Hariyana, Petmanent R/O- Amari, P. S. - Dharhara,
District- Munger.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Sunita Kumari W/o Sri Umesh Saw, D/o Shri Bindeshwari Saw R/o
Maheshpur, P.O. - Abhaiypur, P.s.- Abhaiyapur, Dist.- Lakhisarai
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner : Mr. Rajesh Kumar, Advocate
For the Opposite Party : Mr. Pawan Kumar Chaurasia, APP
For the Informant : Mrs. Rakhi Kumari, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
4 21-01-2026 Heard learned counsel for the petitioner, learned
counsel for the informant and learned APP for the State.
2. The petitioner apprehends his arrest in connection
with Lakhisarai Complaint Case No. 8C of 2009 for the offences
punishable under Sections 498A, 406 of the Indian Penal Code
and Section 3 and 4 of the Dowry Prohibition Act.
3. As per the prosecution case, the petitioner and the
co-accused persons are alleged to have tortured the complainant
mentally and physically due to non-fulfillment of demand of
dowry.
4. It has been submitted by the learned counsel for the
petitioner that the petitioner is innocent and he has falsely been
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implicated in this case. The petitioner is the husband of the
informant. He further submits that the petitioner has no criminal
antecedent.
5. The learned APP for the State has vehemently
opposed the prayer of the petitioner and has submitted that
process under Section 82 and 83 of Cr.P.C. has been issued
against this petitioner as the petitioner did not appear before the
Court.
6. I have heard and considered the submissions of the
parties and have gone through the records of the case.
7. Before I proceed to consider the prayer of the
petitioner for grant of anticipatory Bail, it is imperative to
discuss whether anticipatory bail petition is maintainable in
view of the proceedings under Sections 82 and 83 Cr.PC,
corresponding to Sections 84 and 85 B.N.S.S respectively. This
question is not res-integra. The Hon'ble Supreme Court has
considered this question on several occasions:
8. In Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730
the Hon'ble Supreme Court has held as follows:
"12.. 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
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offender in terms of Section 82of the Code he is not
entitled to the relief of anticipatory bail."
9. The Hon'ble Supreme Court in Prem Shankar
Prasad v. State of Bihar, (2021) SCC OnLince SC 955 has
observed as under:
"19. Despite the above observations on merits
and despite the fact that it was brought to the notice
of the High Court that Respondent 2-accused is
absconding and even the proceedings under
Sections 82/83 CrPC have been initiated as far back
as on 10-1-2019, the High Court has just ignored
the aforesaid relevant aspects and has granted
anticipatory bail to Respondent 2-accused by
observing that the nature of accusation is arising
out of a business transaction. The specific
allegations of cheating, etc. which came to be
considered by the learned Additional Sessions Judge
has not at all been considered by the High Court.
Even the High Court has just ignored the factum of
initiation of proceedings under Sections 82/83CrPC
by simply observing that "be that as it may", The
aforesaid relevant aspect on grant of anticipatory
bail ought not to have been ignored by the High
Court and ought to have been considered by the
High Court very seriously and not casually.
20. In State of M.P. v. Pradeep Sharma,
(2014) 2 SCC 171, it is observed and held by this
Court that if anyone is declared as an
absconder/proclaimed offender in terms of Section
82CrPC, he is not entitled to relief of anticipatory
bail………
21. Thus the High Court has committed an
error in granting anticipatory bail to Respondent 2-
accused ignoring the proceedings under Sections
82/83CrPC."
10. In Abhishek Vs. State of Maharashtra and
Ors.,(2022) 8 SCC 282, the Hon'ble Supreme Court has held as
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follows:
"68. As regards the implication of
proclamation having been issued against the
appellant, we have no hesitation in making it clear
that any person, who is declared as an "absconder"
and remains out of reach of the Investigating agency
and thereby stands directly at conflict with law,
ordinarily, deserves no concession or Indulgence.
By way of reference, we may observe that in relation
to the indulgence of pre-arrest bail in terms of
Section 438CrPC, this Court has repeatedly said
that when an accused is absconding and is declared
as proclaimed offender, there is no question of
giving him the benefit of Section 438CrPC
11. In State of Haryana Vs. Dharamraj, (2023) 17
SCC 510, the Hon'ble Supreme Court has held as follows:
"18. We may note that in Lavesh v. State
(NCT of Delhi), (2012) 8 SCC 730, this Court was
categoric against grant of anticipatory bail to a
proclaimed offender. In the same vein, following
Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730 is
the decision in State of M.P. v. Pradeep Sharma,
(2014) 2 SCC 171, where this Court emphasised
that a proclaimed offender would not be entitled to
anticipatory bail. Of course, in an exceptional and
rare case, this Court or the High Courts can
consider a plea seeking anticipatory bail, despite
the applicant being a proclaimed offender, given
that the Supreme Court and High Courts are
constitutional courts. However, no exceptional
situation arises in the case at hand.
19. Following State of M.P. v. Pradeep
Sharma, (2014) 2 SCC 171, in Prem Shankar
Prasad v. State of Bihar, (2022) 14 SCC 516, this
Court was unequivocal that the High Court therein
erred in granting anticipatory bail ignoring
proceedings under Sections 82 and 83CrPC.......…
12. In Asha Dubey Vs. The State of Madhya
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Pradesh, as reported in MANU/SCOR/124926/2024, Hon'ble
Supreme Court has again held as follows:
"8. Coming to the consideration of anticipatory
bail. in the event of the declaration under Section 82 of the
Cr.PC, it is not as if in all cases that there will be a total
embargo on considering the application for the grant of
anticipatory bail.
9. When the liberty of the appellant is pitted
against, this Court will have to see the circumstances of the
case, nature of the offence and the background based on
which such a proclamation was issued, Suffice it is to state
that it is a fit case for grant of anticipatory bail, on the
condition. that the appellant shall cooperate with the
further investigation. However, liberty is also given to the
respondents to seek cancellation of bail that has been
granted, in the event of a violation of the conditions which
are to be imposed by the Trial Court or if there are any
perceived threats against the witnesses."
(Emphasis supplied)
13. In the recent decision in the case of Serious
Fraud Investigation Office v. Aditya Sarda, [2025 SCC
OnLine SC 764], it has been observed as follows:
"23. The High Courts should also
consider the factum of issuance of non
bailable warrants and initiation of
proclamation proceedings. seriously and not
casually, while considering the anticipatory
bail application of such accused."
14. Considering the submission of the parties and in
view of the law laid down by the Hon’ble Supreme Court in the
afore-quoted judgments, this application of grant of anticipatory
bail is allowed.
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15. Let the petitioner, above named, in the event of
his/her arrest or surrender before the concerned Court below
within four weeks from today, be released on bail on furnishing
bail bond of Rs. 10,000/- ( Ten Thousand) with two sureties of
the like amount each to the satisfaction of the learned S.D.J.M.,
Lakhisarai in connection with Lakhisarai Complaint Case No.
8C of 2009 subject to the conditions laid down in Section
438(2) of the Code of Criminal Procedure, 1973 / Section 482 of
the B.N.S.S.
16. As a condition of this order, the petitioner is
directed to pay a maintenance amount of Rs. 5,000/- from the
month of January, 2026 to the informant and the maintenance
for the month of January, 2026 shall be paid to the informant
before 31.01.2026 and thereafter the maintenance amount shall
be paid to the informant every month before the 15 th day of the
month.
(Sandeep Kumar, J)
Atul/-
U T
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