Allahabad High Court
HAKIM ALIversusSTATE OF U.P.
- Decided
- Bench
- VIVEK KUMAR SINGH
Holding
Anticipatory bail cannot be granted to a proclaimed offender who is absconding, and the application is therefore not maintainable.
Summary
The High Court of Allahabad considered an anticipatory bail application filed under Section 482 of the BNSS in a case involving offences under Sections 420, 406, 467, 468, 471 and 120B IPC. The applicant, who had already been declared a proclaimed offender under Section 82 of the CrPC/84 of the BNSS, sought bail claiming innocence and willingness to cooperate. The State opposed, arguing that the applicant was absconding and that the law precludes anticipatory bail for proclaimed offenders. Relying on Supreme Court precedents such as Prem Shankar Prasad, Lavesh, Pradeep Sharma, Srikant Upadhyay, and others, the Court held that the extraordinary power of anticipatory bail cannot be exercised when the accused is a proclaimed offender and has not justified his absence. Consequently, the application was dismissed as not maintainable.
Issues considered
- Whether an anticipatory bail application is maintainable when the applicant has been declared a proclaimed offender under Section 82 CrPC/84 BNSS.
- Whether the extraordinary power under Section 438 CrPC/Section 482 BNSS can be exercised in such circumstances.
- Whether the applicant’s alleged cooperation and willingness to appear affect the grant of anticipatory bail.
Legislation cited
- BNSS — s. 482, 84
- Code of Criminal Procedure, 1973 — s. 438, 82, 83
- Indian Penal Code — s. 120B, 406, 420, 467, 468, 471
Subjects
- anticipatory bail
- proclaimed offender
- Section 82 CrPC
- Section 438 CrPC
- extraordinary power
- absconding
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No.
- 8311 of 2025
Hakim Ali
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)
Counsel for Applicant(s) : Bhuvnesh Kumar Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 72
HON'BLE VIVEK KUMAR SINGH, J.
1. Heard learned counsel for the applicant and learned A.G.A for the State
and perused the record.
2. The present application has been filed on behalf of the applicant in Case
Crime No. 1031 of 2019, under Sections 420, 406, 467, 468, 471, 120B of
I.P.C., Police Station - Phase-3, Noida, District Gautam Budh Nagar, with a
prayer to grant him anticipatory bail.
3. Learned counsel for the applicant submits that the applicant is absolutely
innocent and has been falsely implicated in the present case. He has nothing
to do with the alleged offence in spite of that the police are trying to arrest
the applicant. Learned counsel for the applicant further submits that the
applicant undertakes to cooperate during investigation and trial and shall
appear as and when required by the Investigating Agency or the Court
concerned. It has also been stated that, in case the applicant is granted
anticipatory bail, he shall not misuse the liberty of bail, shall cooperate with
the investigation, and shall abide by all the conditions that may be imposed
by the Court.
4. On the other hand, learned A.G.A. has opposed the application for
anticipatory bail. A preliminary objection has been raised by the learned
A.G.A. that proceedings under Section 82 of Cr.P.C./84 of B.N.S.S. has
been initiated against the applicant on 11.07.2025, before filing of
anticipatory bail application, therefore, the present anticipatory bail
NABAIL No. 8311 of 2025
2
application is not maintainable in view of settled law. The applicant is
neither cooperating with the investigation nor is appearing before the
investigating officer.
5. I have considered the rival submissions made by the learned counsel
for the parties and have gone through the entire record carefully.
6. It is not a disputed fact that the proceedings have been initiated against
the applicant under Section 82 of Cr.P.C./84 of B.N.S.S. in connection
with the present case crime number before filing his anticipatory bail
application. The applicant was declared as a proclaimed offender .
7. The conduct of the applicant drags him under the umbrella of the law
promulgated by the Hon'ble Apex Court in Prem Shankar Prasad
Versus State of Bihar and Another, 2021 SCC OnLine Supreme
Court 955. In the facts of that case, charge-sheet was filed under Sections
406, 420 IPC against the accused and thus it was explicit that a prima
facie case against the accused was found. From the record, it revealed that
the arrest warrant was issued by the Magistrate against the accused and
thereafter proceedings under Sections 82, 83 Cr.P.C. had been initiated
pursuant to the order passed by the Magistrate. Only thereafter the
accused moved an application before the trial court for anticipatory bail,
which was rejected by the Sessions Court. However, subsequently
anticipatory bail was granted to the aforesaid accused by the High Court
and when the matter came before the Hon'ble Apex Court, it was
observed like this-
"19. Despite the above observations on merits and despite the fact that it
was brought to the notice of the High Court that respondent No. 2 -
accused is absconding and even the proceedings under sections 82-83 of
Cr. P.C. have been initiated as far as back on 10.01.2019, the High Court
has just ignored the aforesaid relevant aspects and has granted
anticipatory bail to respondent No. 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 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 82-83 of Cr. P.C. by simply observing that
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3
"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."
8. The Hon'ble Apex Court in Lavesh Vs. State (NCT of Delhi)(2012) 8
SCC 730 has held that "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.
9. Further, the judgment passed in Lavesh (supra) was referred by the
Hon'ble Apex Court in State of Madhya Pradesh vs. Pradeep Sharma,
(2014) 2 Supreme Court Cases 171 and referring to paragraph 12 of the
judgment of Lavesh (supra), in paragraph 16 of the said judgment, it was
observed, relevant portion of which is as under :
"16.........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."
10. In the case of Srikant Upadhyay and Others vs. State of Bihar and
Another, (2024) 12 SCC 382, the Hon'ble Supreme Court has held that
the power to grant anticipatory bail is an extraordinary power. While
called upon to exercise the said power, the Court has to be very cautious
as the grant of interim protection or protection to the accused in serious
cases may lead to miscarriage of justice. When warrant of arrest or
proclamation is issued, the applicant is not entitled to invoking
extraordinary power. The relevant paragraph no. 30 of Srikant
Upadhyay (supra) is quoted as under:
"30. We have already held that the power to grant anticipatory bail is an
extraordinary power. Though in many cases it was held that bail is said
to be a rule, it cannot, by any stretch of imagination, be said that
anticipatory bail is the rule. It cannot be the rule and the question of its
grant should be left to the cautious and judicious discretion by the Court
depending on the facts and circumstances of each case. While called upon
NABAIL No. 8311 of 2025
4
to exercise the said power, the Court concerned has to be very cautious
as the grant of interim protection or protection to the accused in serious
cases may lead to miscarriage of justice and may hamper the
investigation to a great extent as it may sometimes lead to tampering or
distraction of the evidence. We shall not be understood to have held that
the Court shall not pass an interim protection pending consideration of
such application as the Section is destined to safeguard the freedom of an
individual against unwarranted arrest and we say that such orders shall
be passed in eminently fit cases. At any rate, when warrant of arrest or
proclamation is issued, the applicant is not entitled to invoke the
extraordinary power. Certainly, this will not deprive the power of the
Court to grant pre-arrest bail in extreme, exceptional cases in the interest
of justice. But then, person(s) continuously, defying orders and keep
absconding is not entitled to such grant."
11. In the case of P. Chidambaram vs. Directorate of Enforcement,
(2019) 9 SCC 24, the Hon'ble Apex Court has held that arrest is a part of
procedure of the investigation to secure not only the presence of the
accused but several other purposes. The power under Section 438 of
Cr.P.C./482 of B.N.S.S. has to be exercised sparingly. The privilege of
the pre-arrest bail should be granted only in exceptional cases. The
relevant paragraph no. 69 of P. Chidambaram (supra) is reproduced as
under:
"69. Ordinarily, arrest is a part of procedure of the investigation to
secure not only the presence of the accused but several other purposes.
Power under Section 438 Cr.P.C. is an extraordinary power and the same
has to be exercised sparingly. The privilege of the pre-arrest bail should
be granted only in exceptional cases. The judicial discretion conferred
upon the court has to be properly exercised after application of mind as
to the nature and gravity of the accusation; possibility of the applicant
fleeing justice and other factors to decide whether it is a fit case for grant
of anticipatory bail. Grant of anticipatory bail to some extent interferes in
the sphere of investigation of an offence and hence, the court must be
circumspect while exercising such power for grant of anticipatory bail.
Anticipatory bail is not to be granted as a matter of rule and it has to be
granted only when the court is convinced that exceptional circumstances
NABAIL No. 8311 of 2025
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exist to resort to that extraordinary remedy. "
12. Further, in the pronouncement of the Hon'ble Apex Court in State of
Haryana vs. Dharamraj, 2023 SCC Online SC 1085, decided on
29.8.2023 the legal position regarding maintainability of an application
for grant of anticipatory bail to a proclaimed offender has been elucidated,
which reads as under (paragraph 17 of the said judgment):
"17. The respondent, without first successfully assailing the order
declaring him as a proclaimed offender, could not have proceeded to seek
anticipatory bail. Looking to the factual prism, we are clear that the
respondent's application under Section 438, CrPC should not have been
entertained, as he was a proclaimed offender. 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 (supra) is the decision in State of Madhya Pradesh
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. Following Pradeep Sharma (supra), in Prem Shankar
Prasad v. State of Bihar, 2021 SCC OnLine SC 955, this Court was
unequivocal that the High Court therein erred in granting anticipatory
bail ignoring proceedings under Sections 82 and 83, CrPC. In Abhishek
v. State of Maharashtra, (2022) 8 SCC 282, this Court concluded:
'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 438 CrPC, 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 438 CrPC. [For example,
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Prem Shankar Prasad v. State of Bihar, (2022) 14 SCC 529, 2021 SCC
OnLine SC 955] ...'"
13. Hence, the law is discernible on the point that as per normal rule,
anticipatory bail cannot be granted to an accused who is absconding or
concealing himself in order to avoid execution of the process of the Court
without offering any legal or plausible justification for his abscondence
and consequently has been declared a proclaimed offender.
14. The deliberate oblivion to the process issued by the Court on the part
of the applicant denudes his claim to treat his application for grant of
anticipatory bail as maintainable under the roof of a 'rare and exceptional
case' and thereby to grant anticipatory bail to him.
15. In view of the above, declaring the present application for grant of
anticipatory bail as not maintainable, I deem it not a fit case to grant
anticipatory bail to the present applicant. The wilful defaulter, who does
not cooperate with the trial court or investigation at all, is not entitled to
get any relief from this Court by way of anticipatory bail.
16. The anticipatory bail application is, accordingly, rejected.
17. Interim order, if any, stands vacated.
18. Registrar (Compliance) is directed to send a copy of this order to the
court concerned who shall proceed further in accordance with law.
(Vivek Kumar Singh,J.)
October 1, 2026
A.P. Pandey
Digitally signed by :-
ANAND PRAKASH PANDEY
High Court of Judicature at Allahabad
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