PREM SHANKAR PRASADversusTHE STATE OF BIHAR & ANR.

1176                      [2021]REPORTS
                SUPREME COURT   6 S.C.R. 1176               [2021] 6 S.C.R.


 A                        PREM SHANKAR PRASAD
                                        v.
                        THE STATE OF BIHAR & ANR.
                       (Criminal Appeal No. 1209 of 2021)
 B                             OCTOBER 21, 2021
                   [M. R. SHAH AND A.S. BOPANNA, JJ.]
              Code of Criminal Procedure, 1973: s.438 – Anticipatory bail
       – FIR lodged by appellant against respondent no.2 for offences
       punishable under ss.406, 407, 468 and 506 IPC – A warrant of
 C
       arrest issued by Magistrate – Thereafter, respondent no.2 was
       absconding and concealed himself to avoid service of warrant of
       arrest – Magistrate issued a proclamation against respondent no.2
       under s.82 CrPC – Thereafter respondent no.2 filed anticipatory
       bail application before trial court which was dismissed – However,
 D     High Court allowed the anticipatory bail application – Complainant
       filed instant appeal challenging the anticipatory bail granted to
       respondent no.2 – Held: After investigation, a charge-sheet was
       filed against respondent no.2 for the offences punishable under
       ss.406, 420 of IPC – Thus, it was found that there was a prima facie
       case against him – Arrest warrant was issued by the Magistrate
 E
       and thereafter proceedings under ss.82-83 of Cr.PC were initiated
       pursuant to the order passed by the Chief Judicial Magistrate –
       High Court just ignored the factum of initiation of proceedings under
       ss.82-83 of Cr.PC– The aforesaid relevant aspect on grant of
       anticipatory bail ought not to have been ignored by the High Court
 F     and ought to have been considered by the High Court very seriously
       and not casually – Thus, the High Court committed an error in
       granting anticipatory bail to respondent No.2 ignoring the
       proceedings under s.82-83 of Cr.PC.
             Allowing the appeal, the Court
 G           HELD:1. After investigation, a charge-sheet was filed
       against respondent no.2 – accused for the offences punishable
       under sections 406, 420 of IPC also. Thus, it was found that there
       is a prima facie case against the accused. It came on record that
       the arrest warrant was issued by the Magistrate and thereafter
 H
                                       1176
   PREM SHANKAR PRASAD v. THE STATE OF BIHAR & ANR.                    1177


proceedings under sections 82-83 of Cr.PC were initiated               A
pursuant to the order passed by the Chief Judicial Magistrate.
Only thereafter respondent No.2 moved an application before
the Trial Court for anticipatory bail which came to be dismissed.
[Para 7.1][1181-B-C]
       2. Despite the fact that it was brought to the notice of the    B
High Court that respondent No.2-accused was absconding and
even the proceedings under sections 82-83 of Cr.PC were
initiated, the High Court just ignored the aforesaid relevant
aspects and granted anticipatory bail to respondent No.2 –
accused by observing that the nature of accusation was arising
out of a business transaction. The specific allegations of cheating,   C
etc., which came to be considered by Additional Sessions Judge
was not at all considered by the High Court. Even the High Court
just ignored the factum of initiation of proceedings under sections
82-83 of Cr.PC by simply observing that “be that as it may”. The
aforesaid relevant aspect on grant of anticipatory bail ought not      D
to have been ignored by the High Court and ought to have been
considered by the High Court very seriously and not casually.
Thus the High court has committed an error in granting
anticipatory bail to respondent No.2 – accused ignoring
the proceedings under Section 82-83 of Cr.PC. [Paras 7.2,
7.3][1182-H; 1183-A-B; 1185-G]                                         E

      3. Even the observations made by the High Court while
granting the anticipatory bail to respondent No.2 – accused that
the nature of accusation is arising out of a business transaction
and therefore the accused is entitled to the anticipatory bail is
concerned, the same cannot be accepted. Even in the case of a          F
business transaction also there may be offences under the IPC
more particularly sections 406, 420, 467, 468, etc. What is
required to be considered is the nature of allegation and the
accusation and not that the nature of accusation is arising out of a
business transaction. At this stage, it is required to be noted that   G
respondent No.2 - accused has been charge-sheeted for the
offences punishable under sections 406 and 420, etc. and a
charge-sheet has been filed in the court of Magistrate Court.
[Para 8][1185-H; 1186-A-B]

                                                                       H
1178             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


 A           State of Madhya Pradesh v. Pradeep Sharma (2014) 2
             SCC 171 : [2013] 12 SCR 772 – referred to.
                                Case Law Reference
       [2013] 12 SCR 772                  referred to                para 4.5
 B          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
       No.1209 of 2021.
             From the Judgment and Order dated 14.08.2019 of the High Court
       of Judicature at Patna in Criminal Miscellaneous No.50530 of 2019.
              Rituraj Biswas, Rituraj Choudhary, Ms. Sujaya Bardhan, Advs.
 C     for the Appellant.
            Devashish Bharuka, Ms. Sarvshree, Justine George, Manas Syal,
       Abhishek, Advs. for the Respondents.
             The Judgment of the Court was delivered by
 D           M. R. SHAH, J.
              1. Feeling aggrieved and dissatisfied with the impugned judgment
       and order dated 14.08.2019 passed by the High Court of Judicature at
       Patna in Criminal Miscellaneous Application No. 50530 of 2019, by which
       the High Court has allowed the said criminal miscellaneous application
 E     and 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 appellant
       herein against respondent No.2 with Chapra Town Police Station, Saran
       in case No.453 of 2018 for the offences punishable under sections 406,
 F     407, 468, 506 of the Indian Penal Code, 1860. A warrant of arrest came
       to be issued by learned Chief Judicial Magistrate, Saran, Chapra on
       19.12.2018. It appears that thereafter respondent No.2 – accused is
       absconding and concealing himself to avoid service of warrant of arrest.
       Thereafter learned Chief Judicial Magistrate issued a proclamation against
       respondent No.2 under section 82 Cr.PC. Only thereafter and issuance
 G     of proclamation under section 82 Cr.PC, respondent No.2 – accused
       filed anticipatory bail application before learned Trial Court. By a detailed
       order dated 29.01.2019 the learned Trial Court dismissed the said
       anticipatory bail application and rejected the prayer for anticipatory bail
       on merits as well as on the ground that as the accused is absconding and
 H     even the proceedings under section 82/83 Cr.PC have been issued, the
    PREM SHANKAR PRASAD v. THE STATE OF BIHAR & ANR.                             1179
                    [M. R. SHAH, J.]

accused is not entitled to the anticipatory bail. That thereafter the accused    A
approached the High Court by way of present application and despite
the fact that it was specifically pointed to the High Court that since the
process of proclamation under section 82 & 83 Cr.PC have been issued,
the accused should not be allowed the privilege of anticipatory bail, ignoring
the aforesaid relevant aspect, by the impugned judgment and order the
                                                                                 B
High Court has allowed the said anticipatory bail by observing that in the
event of his arrest/surrender within six weeks in the Court below, he
may be released on bail on furnishing bail bond of Rs.10,000/- with two
sureties of the like amount each to the satisfaction of the learned Chief
Judicial Magistrate, Saran, Chapra and subject to the conditions as laid-
down under section 438 (2) of Cr.PC.                                             C
       3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court granting anticipatory bail to respondent
No.2 – accused, the original informant/complainant – appellant has
preferred the present appeal.
       4. Shri Rituraj Biswas, learned Advocate appearing on behalf of           D
the appellant has vehemently submitted that in the facts and circumstances
of the case, the High Court has committed a grave error in allowing the
anticipatory bail application.
       4.1 It is submitted that considering the fact that the accused was
avoiding the arrest and even did not co-operate with investigating agency        E
and even after the arrest warrants were issued, the proceedings under
sections 82-83 of Cr.PC were initiated, the High Court ought not to
allow the anticipatory bail application.
      4.2 It is submitted that though the factum of initiation of proceedings
under Section 82-83 of Cr.PC was pointed out, the High Court has simply          F
ignored the same.
      4.3 It is further submitted that even the High Court has not at all
considered the seriousness of the offences alleged namely the offences
under sections 406, 420 of IPC, which were in detail considered by the
learned Trial Court while rejecting the anticipatory bail application.
                                                                                 G
       4.4 It is submitted that the High Court has granted the anticipatory
bail to respondent No.2 solely observing that the nature of accusation
arising out of a business transaction. It is submitted that merely because
it was a business transaction, without further considering the nature of
allegations the High Court ought not to have granted the anticipatory bail
to respondent No.2 - accused.                                                    H
1180            SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A            4.5 Relying upon the decision of this court in case of State of
       Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171, it
       is submitted that as observed and held by this court a person against
       whom the proclamation has been issued and the proceedings under
       sections 82-83 of Cr.PC have been initiated, is not entitled to the benefit
       of anticipatory bail.
 B
             4.6 It is further submitted that even subsequently a charge-sheet
       has been filed against the accused – respondent No.2 for the offences
       punishable under sections 406 and 420 of IPC.
              4.7 Making the above submissions and relying upon above decision
 C     of this court, it is prayed to allow the present appeal and quash and set
       aside the impugned judgment and order passed by the High Court granting
       anticipatory bail to respondent No.2 – accused.
              5. Shri Devashish Bharuka, learned Advocate appearing on behalf
       of the State has supported the appellant and has submitted that on being
 D     found a prima facie case against respondent No.2 – accused, a
       charge-sheet has been filed against the accused under sections 406 and
       420 of IPC also.
              6. Shri Abhishek, learned Advocate appearing on behalf of
       respondent No.2 has vehemently submitted that in the facts and
 E     circumstances of the case, the High Court has not committed any error
       in granting anticipatory bail to respondent No.2 – accused.
              6.1 It is submitted that the High Court has rightly observed that
       the nature of accusation is arising out of a business transaction. It is
       submitted that merely because the cheque was given and the same came
 F     to be dishonored it cannot be said that the offences under sections 406
       and 420 of IPC is made out. It is submitted that at the most the case may
       fall under section 138 of Negotiable Instruments Act, 1881.
             6.2 It is submitted that as such respondent No.2 – accused was
       available for interrogation and therefore there is no question of
 G     absconding.
              6.3 It is further submitted by the learned counsel appearing on
       behalf of respondent No.2 – accused that at this stage only the
       charge-sheet has been filed in the court, but the learned Magistrate has
       yet to take cognizance of the same.
 H
    PREM SHANKAR PRASAD v. THE STATE OF BIHAR & ANR.                            1181
                    [M. R. SHAH, J.]

      7. We have heard the learned counsel appearing on behalf of the           A
appellant – original informant - complainant as well as learned counsel
appearing on behalf of the State and the learned counsel appearing on
behalf of respondent no.2- accused.
       7.1 It is required to be noted that after investigation a charge-sheet
has been filed against respondent no.2 – accused for the offences               B
punishable under sections 406, 420 of IPC also. Thus it has been found
that there is a prima facie case against the accused. It has come on
record that the arrest warrant was issued by the learned Magistrate as
far as back on 19.12.2018 and thereafter proceedings under sections
82-83 of Cr.PC have been initiated pursuant to the order passed by the
learned Chief Judicial Magistrate dated 10.01.2019. Only thereafter             C
respondent No.2 moved an application before the learned Trial Court
for anticipatory bail which came to be dismissed by the learned Additional
Sessions Judge, Saran, by a reasoned order. The relevant observations
made by the learned Additional Sessions Judge, Saran, while rejecting
the anticipatory bail application are as under:-                                D
             “Perused the record. The prosecution case as alleged in
      the typed application of the informant Prem Shankar Prasad is
      that the informant is a retailer shopkeeper of medicines in the
      name of Maa Medical Store, Gandhi Chauk, Chapra and the
      petitioner is his stockiest who runs his business in the name of          E
      Rajnish Pharma, Mauna Pakari. The petitioner and the informant
      were on good terms, so, the informant gave Rs. 36,00,000/- to the
      petitioner in case and through cheque for purchase of medicine.
      When the required were not supplied to the informant, the
      informant demanded his Rs. 36,00,000/- then, the petitioner gave
      a cheque of Rs. 10,00,000/- bearing cheque no. 137763 dated               F
      25.11.2017 which was in the Canara Bank of the petitioner which
      was dishonored by the bank with a note “insufficient fund”.
      Thereafter the informant demanded his money in case. On
      20.06.18 but, the brothers of the petitioner misbehaved with the
      informant. The brothers of the petitioner also threatened not to          G
      contact the police or the consequences will be worst: On this
      informant Chapra Town PS No. 453/2018 was registered and
      investigation proceeded.
             Perused the case diary from which it transpires that in para
      4 there is a re-statement of the informant in which he has supported      H
1182            SUPREME COURT REPORTS                            [2021] 6 S.C.R.


 A           the prosecution case. In para 8, 9, 10, and 11 witness Amit Kumar
             Sinha, Awadhesh Kumar, Dhannu Kumar and Uday Shankar
             Prasad has been examined under section 161 of Cr.PC in which
             they have supported the prosecution case. In para 16 there is
             supervision note of SDPO, Sadar in which prosecution case. In
             found true under sections 420, 406 of IPC and 138 of NI Act. In
 B
             para 23 processes under sections 82 and 83 of Cr.PC have been
             issued against the petitioner in para 38 there is a statement of
             witness Ashutosh Mishra who is a medical representative and
             has stated that Rajnish Srivastava, being stockiest of the medicine
             used to sell the medicines of his company in course whereof he
 C           has borrowed a sum of Rs. 7,10,000/- from him. When he asked
             to return back the money he has issued a cheque of the aforesaid
             amount which was dishonor by his bank due to insufficient fund.
             In para 39 another witness Pramod Kumar Thakur has been
             examined who has deposed that this petitioner Rajnish Srivastava
             has borrowed a sum of Rs. 10,00,000/- on the pretext of purchasing
 D
             a piece of land. When he demanded his money back. Rajnish
             Srivastava gave a cheque of the aforesaid amount which was
             dishonored by the bank. The investigation in the case is still going
             on.
                    From perusal of the case record I find that the informant
 E           has alleged to have given a sum of Rs. 36,00,000/- to this petitioner
             in order to supply certain medicines which was neither supplied
             nor the amount was ever refunded. Admittedly, the said amount
             was given to the petitioner on an oral undertaking as there is nothing
             on record to substantiate the aforesaid averments, but, the fact
 F           remains that the petitioner in order to refund the said amount has
             issued a cheque of Rs.10,00,000/- bearing cheque no. 137763 dated
             25.11.2017 which was deposed by the informant in the bank, but,
             the same was dishonored with record I further find that the
             petitioner is in the habit of borrowing money from different persons
             and then used to make default in payment inasmuch as by issuing
 G           cheques without sufficient balance in his account which transpires
             form paras 38 and 39 of the case diary.”
               7.2 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
 H     of Cr.PC have been initiated as far as back on 10.01.2019, the High
    PREM SHANKAR PRASAD v. THE STATE OF BIHAR & ANR.                           1183
                    [M. R. SHAH, J.]

Court has just ignored the aforesaid relevant aspects and has granted          A
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
                                                                               B
proceedings under sections 82-83 of Cr.PC 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.
      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 as   C
an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is
not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is
observed and held as under:-
      “14. In order to answer the above question, it is desirable to refer
      to Section 438 of the Code which reads as under:                         D
          “438. Direction for grant of bail to person apprehending
          arrest.—(1) Where any person has reason to believe that he
          may be arrested on accusation of having committed a
          non-bailable offence, he may apply to the High Court or the
          Court of Session for a direction under this section that in the      E
          event of such arrest he shall be released on bail; and that court
          may, after taking into consideration, inter alia, the following
          factors, namely—
          (i) the nature and gravity of the accusation;
          (ii) the antecedents of the applicant including the fact as to       F
          whether he has previously undergone imprisonment on
          conviction 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 of           G
          injuring or humiliating the applicant by having him so arrested,
          either reject the application forthwith or issue an interim order
          for 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         H
1184      SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A        this sub-section or has rejected the application for grant of
          anticipatory bail, it shall be open to an officer in charge of a
          police station to arrest, without warrant the applicant on the
          basis of the accusation apprehended in such application.”
       The above provision makes it clear that the power exercisable
 B     under Section 438 of the Code 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.
 C     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 as
       under : (SCC pp. 311-12, para 16)
          “16. Section 438 is a procedural provision which is concerned
          with the personal liberty of an individual who is entitled to plead
 D        innocence, since he is not on the date of application for exercise
          of power under Section 438 of the Code convicted for the
          offence in respect of which he seeks bail. The applicant must
          show that he has ‘reason to believe’ that he may be arrested in
          a non-bailable offence. Use of the expression ‘reason to believe’
          shows that the belief that the applicant may be arrested must
 E        be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’
          for which reason it is not enough for the applicant to show that
          he has some sort of vague apprehension that someone is going
          to make an accusation against him in pursuance of which he
          may be arrested. Grounds on which the belief of the applicant
 F        is based that he may be arrested in non-bailable offence must
          be capable of being examined. If an application is made to the
          High Court or the Court of Session, it is for the court concerned
          to decide whether a case has been made out for granting of
          the relief sought. The provisions cannot be invoked after arrest
          of the accused. A blanket order should not be generally passed.
 G        It flows from the very language of the section which requires
          the applicant to show that he has reason to believe that he may
          be arrested. A belief can be said to be founded on reasonable
          grounds only if there is something tangible to go by on the
          basis of which it can be said that the applicant’s apprehension
 H        that he may be arrested is genuine. Normally a direction should
    PREM SHANKAR PRASAD v. THE STATE OF BIHAR & ANR.                          1185
                    [M. R. SHAH, J.]

          not issue to the effect that the applicant shall be released on     A
          bail ‘whenever arrested for whichever offence whatsoever’.
          Such ‘blanket order’ should not be passed as it would serve as
          a blanket to cover or protect any and every kind of allegedly
          unlawful activity. An order under Section 438 is a device to
          secure the individual’s liberty, it is neither a passport to the
                                                                              B
          commission of crimes nor a shield against any and all kinds of
          accusations 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 order
          in terms of Section 438 of the Code can be passed.”
      16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC           C
      730] , this Court (of which both of us were parties) considered
      the scope of granting relief under Section 438 vis-à-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 : (SCC p. 733)                                                    D
          “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.      E
          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.”
                                                                              F
      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.”
        Thus the High court has committed an error in granting anticipatory
bail to respondent No.2 – accused ignoring the proceedings under Section      G
82-83 of Cr.PC.
      8. Even the observations made by the High Court while granting
the anticipatory bail to respondent No.2 – accused that the nature of
accusation is arising out of a business transaction and therefore the
accused is entitled to the anticipatory bail is concerned, the same cannot
                                                                              H
1186              SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A     be accepted. Even in the case of a business transaction also there may
       be offences under the IPC more particularly sections 406, 420, 467, 468,
       etc. What is required to be considered is the nature of allegation and the
       accusation and not that the nature of accusation is arising out of a business
       transaction. At this stage, it is required to be noted that respondent No.2
       - accused has been charge-sheeted for the offences punishable under
 B
       sections 406 and 420, etc. and a charge-sheet has been filed in the court
       of learned Magistrate Court.
              9. In view of the above and for the reasons stated above, the
       impugned judgment and order dated 14.08.2019 passed by the High Court
       granting anticipatory bail to respondent No.2 – accused is un-sustainable
 C     and deserves to be quashed and set aside and is accordingly quashed
       and set aside. However, two weeks’ time from the date of pronouncement
       of this judgment is granted to respondent No.2 to surrender before the
       concerned Trial Court and thereafter it will be open for respondent No.2
       – accused to pray for regular bail, which may be considered in accordance
 D     with law and on its own merits. The present appeal is accordingly allowed
       in the aforesaid terms.



       Devika Gujral                                                  Appeal allowed.
 E




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