SRIKANT UPADHYAY & ORSversusSTATE OF BIHAR & ANR.

                  [2024] 3 S.C.R. 421 : 2024 INSC 202

                         Srikant Upadhyay & Ors.
                                     v.
                           State of Bihar & Anr.
                     (Criminal Appeal No. 1552 of 2024)
                                 14 March 2024
              [C.T. Ravikumar* and Sanjay Kumar, JJ.]

                            Issue for Consideration
       Whether there could be any bar on the Trial Court for proceeding
       u/s. 82 Cr.P.C., merely because an anticipatory application for
       bail has been filed or because such an application was adjourned
       without passing any interim order.

                                    Headnotes
       Code of Criminal Procedure, 1973 – s.438 and s.82 – Application
       for anticipatory bail was filed in November 2022 and brought
       up for hearing on 04.04.2023, on which it was dismissed
       – Meanwhile, proclamation was issued u/s. 82 Cr.P.C. on
       04.01.2023 and thereafter process u/s.83 Cr.P.C. was initiated
       on 15.03.2023 – The core contention of the appellants is that
       the rejection of the application for anticipatory bail without
       considering the application on merits for the reason of issuance
       of proclamation u/s. 82, Cr.P.C., is unsustainable – Propriety:
       Held: In view of the proviso u/s. 438(1), Cr.PC, it cannot be
       contended that if, at the stage of taking up the matter for
       consideration, the Court is not rejecting the application, it is bound
       to pass an interim order for the grant of anticipatory bail – In short,
       nothing prevents the court from adjourning such an application
       without passing an interim order – The appellants cannot be
       heard to contend that the application for anticipatory bail filed in
       November, 2022 could not have been adjourned without passing
       interim order – At any rate, the said application was rejected on
       04.04.2023 –Pending the application for anticipatory bail, in the
       absence of an interim protection, if a police officer can arrest the
       accused concerned how can it be contented that the court which
       issued summons on account of non-obedience to comply with its
       order for appearance and then issuing warrant of arrest cannot
       proceed further in terms of the provisions u/s. 82, Cr.PC, merely
       because of the pendency of an application for anticipatory bail –
* Author
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       If the said position is accepted the same would be adopted as a
       ruse to escape from the impact and consequences of issuance
       of warrant for arrest and also from the issuance of proclamation
       u/s. 82, Cr.PC, by filing successive applications for anticipatory
       bail – It is made clear that in the absence of any interim order,
       pendency of an application for anticipatory bail shall not bar the
       Trial Court in issuing/proceeding with steps for proclamation and
       in taking steps u/s. 83, Cr.PC, in accordance with law. [Para 23]
       Code of Criminal Procedure, 1973 – s. 438 and s.82 – Various
       orders by trial Court – Issuance of non-bailable warrants –
       Disobedience by the conduct – Proclamation issued u/s. 82
       – Appellants sought pre-arrest bail – Whether appellants were
       entitled to pre-arrest bail:
       Held: The facts would reveal the consistent disobedience of the
       appellants to comply with the orders of the trial Court – They failed
       to appear before the Trial Court after the receipt of the summons,
       and then after the issuance of bailable warrants even when their
       co-accused, after the issuance of bailable warrants, applied and
       obtained regular bail – Though the appellants filed an application,
       which they themselves described as “bail-cum-surrender application”
       on 23.08.2022, they got it withdrawn on the fear of being arrested
       – Even after the issuance of non-bailable warrants on 03.11.2022
       they did not care to appear before the Trial Court and did not apply
       for regular bail after its recalling – It is a fact that even after coming
       to know about the proclamation u/s. 82 Cr.PC., they did not take
       any steps to challenge the same or to enter appearance before the
       Trial Court to avert the consequences – Considering the conduct
       of the appellants, there is no hesitation to hold that they are not
       entitled to seek the benefit of pre-arrest bail. [Para 16]
       Code of Criminal Procedure, 1973 – s.82 – Non-attendance
       in obedience to proclamation u/s. 82 Cr.P.C. – Filing of an
       anticipatory bail application through an advocate – Whether
       filing of such application through advocate could be treated
       as appearance before the Court:
       Held: The view taken by the Gujarat High Court in Savitaben
       Govindbhai Patel & Ors. v. State of Gujarat is approved that filing
       of an anticipatory bail through an advocate would not and could
       not be treated as appearance before a court by a person against
       whom such proceedings (u/ss.82/83 of Cr.P.C.) are instituted.
       [Paras 19 and 20]
[2024] 3 S.C.R.                                                           423

            Srikant Upadhyay & Ors. v. State of Bihar & Anr.


                              Case Law Cited
           Lavesh v. State (NCT of Delhi), [2012] 7 SCR 469 :
           (2012) 8 SCC 730; State of Madhya Pradesh v.
           Pradeep Sharma, [2013] 12 SCR 772 : (2014) 2 SCC
           171 – relied on.
           Savitaben Govindbhai Patel & Ors. v. State of Gujarat,
           2004 SCC OnLine Guj 345 – approved.
           Prem Shankar Prasad v. State of Bihar and Anr., [2021]
           6 SCR 1176 : (2022) 14 SCC 516; HDFC Bank Ltd. v.
           J.J.Mannan & Anr., [2009] 16 SCR 590 : 2010 (1) SCC
           679 – referred to.
           Shrenik Jayantilal Jain and Anr. v. State of Maharashtra
           Through EOW Unit II, Mumbai, [2014 SCC Online Bom
           549] – referred to.

                                List of Acts
     Penal Code, 1860; Code of Criminal Procedure, 1973; Prevention
     of Witch (Daain) Practices Act, 1999.

                             List of Keywords
     Anticipatory bail; Pre-arrest bail; Issuance of proclamation;
     Adjournment of bail application; Interim order; Trial Court orders;
     Issue of non-bailable warrant; Disobedience by conduct; Steps
     for proclamation.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1552
     of 2024
     From the Judgment and Order dated 04.04.2023 of the High Court
     of Judicature at Patna in CRLM No.67668 of 2022

                         Appearances for Parties
     Basant R Sr. Adv., Anand Shankar, Debashis Mukherjee, Param
     Nand, Kavinesh Rm, Onkar Nath, Advs. for the Appellants.
     Anshul Narayan, Prem Prakash, Bhanwar Pal Singh Jadon, Susheel
     Tomar, Satya Prakash, Chetan Jadon, Ms. Abha R. Sharma, Advs.
     for the Respondents.
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                     Judgment / Order of the Supreme Court

                                             Judgment
       C.T. Ravikumar, J.
       Leave granted.
1.     This appeal is directed against the order dated 04.04.2023 in CRLM
       No.67668 of 2022 passed by the High Court of Judicature at Patna
       whereby and whereunder the application for anticipatory bail filed
       by the appellant was dismissed. The pre-arrest bail application was
       moved in connection with FIR No.79 of 2020, registered against
       him and co-accused at Govidganj, Police Station, District East
       Champaran, Bihar, under Sections 341, 323, 354, 354 (B), 379,
       504, 506 and 149 of the Indian Penal Code, 1860 (for short, ‘IPC’)
       and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999
       (for short, ‘the Daain Act’).
2.     Heard, Mr. Basant R., learned Senior Counsel for the appellants
       and Mr. Anshul Narayan, learned counsel for the respondent-State.
3.     The question of seminal importance that arises for consideration can
       better be explained and understood by referring to a decision of this
       Court in Prem Shankar Prasad v. State of Bihar and Anr.1, which
       was rendered after referring to the earlier decisions of this Court
       in State of Madhya Pradesh v. Pradeep Sharma2 and Lavesh v.
       State (NCT of Delhi)3. In Lavesh’s case (supra), this Court held in
       paragraph 12 thus: -
             “12. From these materials and information, it is clear that
             the present appellant was not available for interrogation
             and investigation and declared as “absconder”. 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


1    [2021] 6 SCR 1176 : (2022) 14 SCC 516
2    [2013] 12 SCR 772 : (2014) 2 SCC 171
3    [2012] 7 SCR 469 : (2012) 8 SCC 730
[2024] 3 S.C.R.                                                         425

            Srikant Upadhyay & Ors. v. State of Bihar & Anr.


           of Section 82 of the Code he is not entitled to the relief
           of anticipatory bail.”
                                                (Underline supplied)
4.   In the decision in Pradeep Sharma’s case (supra) this Court held that
     if anyone is declared as an absconder/proclaimed offender in terms
     of Section 82 Cr.PC., he is not entitled to relief of anticipatory bail.
     After extracting Section 438, Cr.PC., it was further held therein thus:-
           “The above provision makes it clear that the power
           exercisable 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.”
5.   In Prem Shankar Prasad’s case (supra), this Court took note of the
     fact that the respondent-accused was absconding and concealing
     himself to avoid service of warrant of arrest and the proceedings
     under Sections 82/83, Cr.PC have been initiated against him, set
     aside the order of the High Court granting anticipatory bail ignoring
     the proceedings under Sections 82/83, Cr.PC. Thus, it is obvious
     that the position of law, which was being followed with alacrity, is
     that in cases where an accused against whom non-bailable warrant
     is pending and the process of proclamation under Sections 82/83,
     Cr.PC is issued, is not entitled to the relief of anticipatory bail.
6.   The learned Senior Counsel appearing for the appellants-accused
     would contend that the well-nigh settled position of law in respect
     of pre-arrest bail as above, is inapplicable in a case where a
     person apprehending arrest has already filed an application seeking
     anticipatory bail and it is pending sans any interim orders and during
     its pendency if the Trial Court issues proclamation under Section
     82, Cr.PC. In short, the proposition of law raised is – when an
     application seeking anticipatory bail filed by a person apprehending
     arrest is pending without any interim protection, whether initiation of
     proceeding for issuance of proclamation under Section 82, Cr. PC
     would make that application worthy for further consideration on its
     own merits? According to the learned Senior Counsel appearing for
     the appellants even in such envisaged circumstances and despite
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       the pendency of non-bailable warrant, the pending application for
       anticipatory bail is liable to be considered on its own merits and at
       any rate, on the aforesaid grounds the pending application of pre-
       arrest bail could not be dismissed.
7.     Per contra, the learned counsel appearing for the State vehemently
       opposed the proposition(s) mooted on behalf of the appellants. It is
       submitted that the issuance of non-bailable warrant and initiation of
       the proceedings under Section 82, Cr.PC are justiciable. Certainly,
       in the absence of an interim protection, there can be no legal
       trammel for issuing non-bailable warrant or for initiating proceedings
       under Section 82, Cr. PC. merely because of the pendency of an
       application for anticipatory bail though more often than not, under such
       circumstances subordinate Courts would wait for orders of the High
       Court. It be so, existence of any such circumstance would disentitle
       a person to press for pre-arrest bail. Even a pending application is
       not maintainable, it is contended.
8.     It is thus obvious from the catena of decisions dealing with bail
       that even while clarifying that arrest should be the last option and it
       should be restricted to cases where arrest is imperative in the facts
       and circumstances of a case, the consistent view is that the grant of
       anticipatory bail shall be restricted to exceptional circumstances. In
       other words, the position is that the power to grant anticipatory bail
       under Section 438, Cr. PC is an exceptional power and should be
       exercised only in exceptional cases and not as a matter of course.
       Its object is to ensure that a person should not be harassed or
       humiliated in order to satisfy the grudge or personal vendetta of the
       complainant. (See the decision of this Court in HDFC Bank Ltd. v.
       J.J.Mannan & Anr.4).
9.     When a Court grants anticipatory bail what it actually does is only to
       make an order that in the event of arrest, the arrestee shall be released
       on bail, subject to the terms and conditions. Taking note of the fact
       the said power is to be exercised in exceptional circumstances and
       that it may cause some hinderance to the normal flow of investigation
       method when called upon to exercise the power under Section 438,
       Cr.PC, courts must keep reminded of the position that law aides only



4    [2009] 16 SCR 590 : 2010 (1) SCC 679
[2024] 3 S.C.R.                                                          427

            Srikant Upadhyay & Ors. v. State of Bihar & Anr.


     the abiding and certainly not its resistant. By saying so, we mean
     that a person, having subjected to investigation on a serious offence
     and upon making out a case, is included in a charge sheet or even
     after filing of a refer report, later, in accordance with law, the Court
     issues a summons to a person, he is bound to submit himself to the
     authority of law. It only means that though he will still be at liberty,
     rather, in his right, to take recourse to the legal remedies available
     only in accordance with law, but not in its defiance. We will dilate this
     discussion with reference to the factual matrix of this case. However,
     we think that before dealing with the same, a small deviation to
     have a glance at the scope and application of the provisions under
     Section 82, Cr.PC will not be inappropriate.
10. There can be little doubt with respect to the position that the sine
    qua non for initiation of an action under Section 82, Cr. PC is prior
    issuance of warrant of arrest by the Court concerned. In that regard
    it is relevant to refer to Section 82 (1), Cr. PC, which reads thus: -
           “82. Proclamation for person absconding. — (1) If
           any Court has reason to believe (whether after taking
           evidence or not) that any person against whom a warrant
           has been issued by it has absconded or is concealing
           himself so that such warrant cannot be executed, such
           Court may publish a written proclamation requiring him
           to appear at a specified place and at a specified time
           not less than thirty days from the date of publishing such
           proclamation.”
11. The use of expression ‘reason to believe’ employed in Section 82
    (1) Cr. PC would suggest that the Magistrate concerned must be
    subjectively satisfied that the person concerned has absconded or has
    concealed himself. In the context of Section 82, Cr. PC, we will have
    to understand the importance of the term ‘absconded’. Its etymological
    and ordinary sense is that one who is hiding himself or concealing
    himself and avoiding arrest. Since the legality of the proceedings
    under Section 82, Cr. PC is not under challenge, we need not go
    into that question. As noticed above, the nub of the contentions is
    that pending the application for pre-arrest bail, proclamation under
    Section 82, Cr.P.C., should not have been issued and at any rate,
    its issuance shall not be a reason for declining to consider such
    application on merits. Bearing in mind the position of law revealed
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       from the decisions referred to hereinbefore and the positions of law,
       we will briefly refer to the factual background of the case.
12. For considering the aforesaid proposition of law, we think it
    absolutely unnecessary to deal with FIR No. 37 of 2018 dated
    28.03.2018 filed against Respondent No.2, Mr. Rajiv Kumar
    Upadhyay and four others, and also FIR No.66 of 2018 registered
    against appellant No.4 (first accused) and four other family members
    of the appellants. Civil Suit No.140 of 2019 filed against the family
    members of the appellants for illegal encroachment is also not
    to be considered as nothing would turn out of it in relation to the
    question posed for consideration. We may hasten to add that if
    the question whether the appellants are entitled to anticipatory
    bail survives, even after answering the aforementioned question(s)
    posed for consideration, we may refer to the relevant aspects in
    relation to the said cases.
13. As noticed hereinbefore, the appellants herein moved the application
    for anticipatory bail in connection with FIR No.79 of 2020 registered
    at Govindgunj Police Station. It is a fact that the subject FIR was
    registered pursuant to the directions of the learned Chief Judicial
    Magistrate, East Champaran, Motihari on complaint No.395 of
    2020 filed by Respondent No.4 under Section 156 (3), Cr. PC. The
    allegations in the complaint are as follows: -
       On 22.02.2020, at about 8.00 am, when Jagmati Kunwar, the
       grandmother of respondent No.4 reached in front of the house
       of appellant No.2, Shashikant Upadhyay, he said that she is the
       witch who made his child sick and shall not be spared. Then, the
       appellants and eight other family members gathered around her
       and the 4th appellant caught hold of her hair and asked the others
       to bring dung. Thereupon, accused Paritosh Kumar brought dung
       and accused Rishu put dung into the mouth of Jagmati Kunwar.
       Consequently, she vomited and fell down. When respondent No.2/
       complainant and other witnesses went for her help, the second
       appellant Shashikant Upadhayay assaulted and abused respondent
       No.2. Co-accused Paritosh Kumar and Jishu Kumar tore the blouse
       of Kiran Devi and she was disrobed. Another co-accused Soni
       Devi snatched a gold chain from the complainant. The co-accused
       Ravikant and appellant No.5 tore the clothes of Jagmati Kunwar
       and made her half-naked.
[2024] 3 S.C.R.                                                            429

             Srikant Upadhyay & Ors. v. State of Bihar & Anr.


14. Later, after completing the investigation, charge sheet was filed on
    08.08.2022 only for offences under Sections 341, 323 and 504 IPC,
    that too only against accused Lakhpati Kunwar (accused No.7).
    However, the learned Trial Court, on perusal of the FIR, charge
    sheet and case diary found that sufficient materials are available in
    the case diary to proceed against the other 12 accused, including
    the appellants herein and accordingly vide order dated 20.02.2021
    took cognizance of the offences under Sections 341, 323, 354B, IPC
    and Section 3/4 of the Daain Act and issued summons to all accused
    including the appellants and fixed 12.04.2022 as the date for their
    appearance. The accused were absent on that day and hence on
    12.04.2022, the Trial Court issued bailable warrants. On 25.05.2022,
    the accused, other than the appellants herein, appeared and applied
    for regular bail before the Trial Court and the Trial Court granted them
    regular bail. Subsequently, the complainant/the second respondent
    herein, applied for cancellation of bail granted to them and as per the
    order dated 09.06.2022 the grantees of bail were issued with show
    cause notices. Upon receiving the notice for cancellation of bail,
    they unsuccessfully approached the Sessions Court challenging the
    order taking cognizance, in Criminal Revision Petition No.94 of 2022.
    Pursuant to the dismissal of the Revision Petition, the Trial Court posted
    the application for cancellation of bail on different dates. The fact is that
    despite such developments, the appellants herein neither appeared
    before the Trial Court nor sought for regular bail. In the meanwhile,
    the appellants herein moved a bail-cum-surrender application
    (described as such by them), before the Trial Court. However, it
    was withdrawn on 23.08.2022 on the fear of arrest. Thereupon,
    the Trial Court fixed the date for appearance of the appellants on
    30.08.2022. Before the date fixed for their appearance, the appellants
    filed application for anticipatory bail before the Sessions Court and,
    thereafter on 06.09.2022, informed the Trial Court about its listing
    before the Sessions Court on 27.09.2022 for final hearing. The Trial
    Court thereupon posted the matter for appearance of the appellants
    to 11.10.2022. The anticipatory bail moved by the appellants was
    dismissed on 27.09.2022 and thereupon, the Trial Court took up the
    matter on 03.11.2022. Since the appellants remained absent, the Trial
    Court issued non-bailable warrants and listed the matter to 04.11.2022
    for their production. Meanwhile, the appellants herein approached the
    High Court by filing CRLM No.67668 of 2022 seeking anticipatory
    bail. It is to be noted that non-bailable warrants were pending against
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       them when they moved the said application for anticipatory bail. On
       04.12.2022, on behalf of the appellants, the Trial Court was informed
       about the filing of anticipatory bail application before the High Court.
       Consequently, the matter was listed on 04.01.2023. On 04.01.2023,
       pursuant to the non-appearance of the appellants despite the earlier
       order for their appearance and the issuance of non-bailable warrants,
       the Trial Court issued proclamation under Section 82(1), Cr. PC.
       Later, proceedings under Section 83, Cr.PC were also initiated. On
       15.03.2023, on behalf of the appellants it was prayed to postpone
       the process under Section 82/83, Cr. PC. However, the Trial Court
       proceeded to issue the process under Section 83, Cr. PC, based
       on the proclamation under Section 82(1) Cr.PC. On 04.04.2023, the
       application for anticipatory bail filed by the appellants was dismissed,
       obviously taking note of the proceedings under Sections 82/83, Cr.
       PC and observing that owing to such developments the application
       for pre-arrest bail could not be maintained.
15. The core contention of the appellants is that the rejection of the
    application for anticipatory bail without considering the application on
    merits for the reason of issuance of proclamation under Section 82,
    Cr. PC, is unsustainable. It is the further contended that at no stage,
    the appellants were “evading the arrest” or “absconding” but were
    only exercising their legal right to seek anticipatory bail. It is in the
    aforesaid circumstances that the learned Senior Counsel appearing
    for the appellants raised the contention that when an application for
    anticipatory bail is pending, the issuance of proclamation, following
    issuance of non-bailable warrant could not be a reason for non-
    considering the application for anticipatory bail on merits.
16. For a proper consideration of the aforesaid contentions and allied
    questions, it is only appropriate to refer to certain provisions of law
    as also certain relevant decisions. From the chronology of events
    narrated hereinbefore, it is evident that for reasons best known to
    the appellants, subsequent to the filing of the final report in terms of
    the provisions under Section 173 (2), Cr.P.C in FIR No.79/2020 and
    issuance of summons, issuance of bailable warrants and issuance
    of non-bailable warrants; pursuant to the failure of the appellants
    to appear before the Court on the date fixed for their appearance
    based on bailable warrants, they did not care to take any action
    in accordance with law except moving applications for bail. Same
    was the position even after the issuance of the proclamation under
[2024] 3 S.C.R.                                                            431

             Srikant Upadhyay & Ors. v. State of Bihar & Anr.


     Section 82, Cr.PC. As noted earlier, in the case of similarly situated
     co-accused of the appellants, they appeared and obtained regular
     bail pursuant to the issuance of bailable warrants. Thus, a scanning
     of the acts and omissions of the appellants, it can only be seen that
     virtually, the appellants were defying the authority of law and moving
     applications for bail when they apprehended arrest owing to their
     non-attendance and dis-obedience. It is in the context of the aforesaid
     facts revealed from the materials on record that the contention of the
     appellants that they were only pursuing their right to file application
     for anticipatory bail and, therefore, they were not either evading the
     arrest or absconding, has to be appreciated.
17. Section 70 (2), Cr. PC mandates that every warrant issued under Section
    70 (1), Cr. PC shall remain in force until it is cancelled by the Court which
    issued it, or until it is executed. In this case, as noticed hereinbefore,
    the bailable warrants and thereafter the non-bailable warrants, were
    issued against the appellants. They were neither cancelled by the
    Trial Court nor they were executed. It is not their case that they have
    successfully challenged them. Sections 19, 20, 21, 174 and 174 A, IPC
    assume relevance in this context. They, insofar as relevant read thus:
           19. “Judge”. —The word “Judge” denotes not only every
           person who is officially designated as a Judge, but also
           every person
           who is empowered by law to give, in any legal proceeding,
           civil or criminal, a definitive judgment, or a judgment which,
           if not appealed against, would be definitive, or a judgment
           which, if confirmed by some other authority, would be
           definitive, or who is one of a body or persons, which body
           of persons is empowered by law to give such a judgment.
           20. “Court of Justice”.—The words “Court of Justice”
           denote a Judge who is empowered by law to act judicially
           alone, or a body of Judges which is empowered by law
           to act judicially as a body, when such Judge or body of
           Judges is acting judicially.
           21. “Public servant”.—The words “public servant” denote
           a person falling under any of the descriptions hereinafter
           following, namely:—
           …
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          [Third.—Every Judge including any person empowered by
          law to discharge, whether by himself or as a member of
          any body of persons, any adjudicatory functions;]
          174. Non-attendance in obedience to an order from
          public servant.—Whoever, being legally bound to attend
          in person or by an agent at a certain place and time in
          obedience to a summons, notice, order, or proclamation
          proceeding from any public servant legally competent, as
          such public servant, to issue the same,
          intentionally omits to attend at that place or time, or departs
          from the place where he is bound to attend before the
          time at which it is lawful for him to depart,
          shall be punished with simple imprisonment for a term
          which may extend to one month, or with fine which may
          extend to five hundred rupees, or with both,
          or, if the summons, notice, order or proclamation is to
          attend in person or by agent in a Court of Justice, with
          simple imprisonment for a term which may extend to six
          months, or with fine which may extend to one thousand
          rupees, or with both.
          174A .Non-appearance in response to a proclamation
          under section 82 of Act 2 of 1974.— Whoever fails to
          appear at the specified place and the specified time as
          required by a proclamation published under sub-section
          (1) of section 82 of the Code of Criminal Procedure, 1973
          shall be punished with imprisonment for a term which
          may extend to three years or with fine or with both, and
          where a declaration has been made under sub-section
          (4) of that section pronouncing him as a proclaimed
          offender, he shall be punished with imprisonment for a
          term which may extend to seven years and shall also
          be liable to fine.
18. Taking note of the aforesaid facts with respect to the issuance of
    summons, warrants and subsequently the proclamation, a conjoint
    reading of Sections 19, 20 and 21, IPC containing the terms “Judge”,
    “Court of Justice” and “Public Servant” and Sections 174 and 174A,
    IPC can make them liable even to face further proceedings. Same is
[2024] 3 S.C.R.                                                          433

              Srikant Upadhyay & Ors. v. State of Bihar & Anr.


     the position in case of non-attendance in obedience to proclamation
     under Section 82, Cr. PC.
19. Bearing in mind the aforesaid provisions and position, we will refer
    to certain relevant decisions. In Savitaben Govindbhai Patel &
    Ors. v. State of Gujarat5, the High Court of Gujarat observed thus: -
            “9. Filing of an Anticipatory Bail Application by the
            petitioners-accused through their advocate cannot be
            said to be an appearance of the petitioners-accused in
            a competent Court, so far as proceeding initiated under
            Section 82/83 of the Code is concerned; otherwise each
            absconding accused would try to create shelter by filing an
            Anticipatory Bail Application to avoid obligation to appear
            before the court and raises the proceeding under Section
            83 of the Code claiming that he cannot be termed as an
            absconder in the eye of law. Physical appearance before
            the Court is most important, if relevant scheme of Sections
            82 and 83, is read closely.”
                                                  (underline supplied)
20. We are in full agreement with the view taken by the Gujarat High
    Court that filing of an anticipatory bail through an advocate would
    not and could not be treated as appearance before a court by a
    person against whom such proceedings, as mentioned above are
    instituted. The meaning of the term “absconded” has been dealt by
    us hereinbefore. We found that its etymological and original sense
    is that the accused is hiding himself. What is required as proof for
    absconding is the evidence to the effect that the person concerned
    was knowing that he was wanted and also about pendency of
    warrant of arrest. A detailed discussion is not warranted in this case
    to understand that the appellants were actually absconding. It is not
    in dispute that they were served with the “summons”. The fact that
    bailable warrants were issued against them on 12.04.2022 is also
    not disputed, as the appellants themselves have produced the order
    whereunder bailable warrants were issued against them. We have
    already referred to Section 70 (2), Cr. PC which would reveal the
    position that once a warrant is issued it would remain in force until it



5   2004 SCC OnLine Guj 345
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       is cancelled by the Court which issued it or until its execution. There
       is no case for the appellants that either of such events had occurred
       in this case to make the warrants unenforceable. They also got no
       case that their application was interfered with by a higher Court. That
       apart, it is a fact that the appellants themselves on 23.08.2022, moved
       a bail-cum-surrender application before the Trial Court but withdrew
       the same fearing arrest. It is also relevant to note that in the case
       on hand even while contending that they were before a Court, the
       appellants got no case that in terms of the provisions under Section
       438 (1-B), Cr. PC an order for their presence before the Court was
       ordered either suo motu by the Court or on an application by the
       public prosecutor. When that be the circumstance, the appellants
       cannot be allowed to contend that they were not hiding or concealing
       themselves from arrest or that they were not knowing that they were
       wanted in a Court of law.
21. To understand and consider another contention of the appellants
    it is worthy to extract ground No.3 raised by the appellants in SLP
    which reads thus:
            “III. Because the Hon’ble High Court has failed to appreciate
            that proclamation under section 82 Cr.P.C. was issued
            on 04.01.2023 by the Ld. Trial Court and thereafter
            process under section 83 Cr.P.C. have been initiated on
            15.03.2023 whereas the application for anticipatory bail
            by the petitioner before the Hon’ble High Court was filed
            in November, 2022, however, the same was came for
            hearing on 04.04.2023. It is, therefore, evident that when
            the petitioners preferred filing of anticipatory bail before
            the Hon’ble High Court then none of the petitioner was
            declared absconder and process under section 82/83
            Cr.P.C. were not initiated against them.”
22. The above extracted ground taken by the appellant constrains us to
    consider the question whether there could be any bar on the Trial
    Court for proceeding under Section 82 Cr.PC, merely because an
    anticipatory application for bail has been filed or because such an
    application was adjourned without passing any interim order. We may
    hasten to add here that it is always preferable to pass orders, either
    way, at the earliest. In the case on hand, application for anticipatory
    bail was filed by the appellants before the High Court in November,
    2022 and brought up for hearing on 04.04.2023, on which day it was
[2024] 3 S.C.R.                                                         435

              Srikant Upadhyay & Ors. v. State of Bihar & Anr.


     dismissed as per the impugned order. The very ground, extracted
     above, would reveal that in the meanwhile, proclamation under
     Section 82 Cr.PC, was issued on 04.01.2023 and thereafter process
     under Section 83 Cr.PC was initiated on 15.03.2023.
23. There can be no room for raising a contention that when an application
    is filed for anticipatory bail, it cannot be adjourned without passing an
    order of interim protection. A bare perusal of Section 438 (1), Cr.PC,
    would reveal that taking into consideration the factors enumerated
    thereunder the Court may either reject the application forthwith or
    issue an interim order for the grant of anticipatory bail. The proviso
    thereunder would reveal that if the High Court or, the Court of
    Sessions, as the case may be, did not pass an interim order under
    this 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 the person concerned without warrant, on the basis of the
    accusation apprehended in such application. In view of the proviso
    under Section 438(1), Cr.PC, it cannot be contended that if, at the
    stage of taking up the matter for consideration, the Court is not
    rejecting the application, it is bound to pass an interim order for the
    grant of anticipatory bail. In short, nothing prevents the court from
    adjourning such an application without passing an interim order. This
    question was considered in detail by a Single Bench of the High Court
    of Bombay, in the decision in Shrenik Jayantilal Jain and Anr. v.
    State of Maharashtra Through EOW Unit II, Mumbai6 and answered
    as above and we are in agreement with the view that in such cases,
    there will be no statutory inhibition for arrest. Hence, the appellants
    cannot be heard to contend that the application for anticipatory bail
    filed in November, 2022 could not have been adjourned without
    passing interim order. At any rate, the said application was rejected
    on 04.04.2023. Pending the application for anticipatory bail, in the
    absence of an interim protection, if a police officer can arrest the
    accused concerned how can it be contented that the court which
    issued summons on account of non-obedience to comply with its
    order for appearance and then issuing warrant of arrest cannot
    proceed further in terms of the provisions under Section 82, Cr.PC,
    merely because of the pendency of an application for anticipatory
    bail. If the said position is accepted the same would be adopted as


6   [2014 SCC Online Bom 549]
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       a ruse to escape from the impact and consequences of issuance of
       warrant for arrest and also from the issuance of proclamation under
       Section 82, Cr.PC, by filing successive applications for anticipatory
       bail. In such circumstances, and in the absence of any statutory
       prohibition and further, taking note of the position of law which
       enables a police officer to arrest the applicant for anticipatory bail if
       pending an application for anticipatory bail the matter is adjourned
       but no interim order was passed. We have no hesitation to answer
       the question posed for consideration in the negative. In other words,
       it is made clear that in the absence of any interim order, pendency
       of an application for anticipatory bail shall not bar the Trial Court in
       issuing/proceeding with steps for proclamation and in taking steps
       under Section 83, Cr.PC, in accordance with law.
24. 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 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.
25. The factual narration made hereinbefore would reveal the consistent
    disobedience of the appellants to comply with the orders of the trial
    Court. They failed to appear before the Trial Court after the receipt of
    the summons, and then after the issuance of bailable warrants even
    when their co-accused, after the issuance of bailable warrants, applied
[2024] 3 S.C.R.                                                           437

            Srikant Upadhyay & Ors. v. State of Bihar & Anr.


     and obtained regular bail. Though the appellants filed an application,
     which they themselves described as “bail-cum-surrender application”
     on 23.08.2022, they got it withdrawn on the fear of being arrested.
     Even after the issuance of non-bailable warrants on 03.11.2022
     they did not care to appear before the Trial Court and did not apply
     for regular bail after its recalling. It is a fact that even after coming
     to know about the proclamation under Section 82 Cr.PC., they did
     not take any steps to challenge the same or to enter appearance
     before the Trial Court to avert the consequences. Such conduct of
     the appellants in the light of the aforesaid circumstances, leaves
     us with no hesitation to hold that they are not entitled to seek the
     benefit of pre-arrest bail.
26. The upshot of the discussion is that there is no ground for interfering
    with the order of the High Court rejecting the application for anticipatory
    bail rather not considering application on merits. Since their action is
    nothing short of defying the lawful orders of the Court and attempting
    to delay the proceedings, this appeal must fail. Consequently, it is
    dismissed.


     Headnotes prepared by: Ankit Gyan                      Result of the case:
                                                             Appeal dismissed.