STATE OF MADHYA PRADESHversusPRADEEP SHARMA

                        [2013] 12 S.C.R. 772


A                 STATE OF MADHYA PRADESH
                                  v.
                       PRADEEP SHARMA
                (Criminal Appeal No. 2049 of 2013)
                        DECEMBER 6, 2013
8
         [P. SATHASIVAM, CJI AND RANJAN GOGOi, J.]

         Code of Criminal Procedure, 1973:

c         s.438 rlw s.82 - Anticipatory bail - Respondents,
    accused of offences punishable u/ss 302 and 120-8 rlw s.34
    /PC - Declared absconders - Granted anticipatory bail by
    High Court - Subsequently released on regular ail by CJM
    - Held: If anyone is declared as an absconder/proclaimed
0   offender in terms of s. 82, he is not entitled to the relief of
    anticipatory bail - The power exercisable uls 438 is
    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
E   holding that a person accused of an offence is not likely to
    otherwise misuse his liberty - In the instant case,
    confessional statements of co-accused reveal that
    respondents administered poisonous substance to deceased
    - It is supported by statements of other witnesses and medical
    report - Further, proclamation uls 82 was issued against
F   respondents - All these materials were neither adverted to
    nor considered by High Court while granting anticipatory bail
    - High Court failed to appreciate that where the accused has
    been declared as an absconder and has not cooperated with
    the investigation, he should not be granted anticipatory bail
G   - Impugned orders of High Court are set aside -
    Consequently, the subsequent order of CJM releasing the
    accused on bail after taking them into custody in compliance
    with the impugned order of High Court is a/so set aside.

H                                772
    STATE OF MADHYA PRADESH v. PRADEEP                   773
                 SHARMA
     The respondents in both the appeals alongwith A
others were accused of the offences punishable u/ss 302
and 120-B read with s. 34 IPC, as they were alleged to
have administered poisonous substance to one 'RS' and
thus caused his death. A charge-sheet was filed against
five accused whereas investigation continued against B
the two respondents and another as they remained
absconding. A proclamation u/s 82 CrPC was issued
against the respondents. They filed applications for
anticipatory bail, which were allowed by the High Court.
Aggrieved, the State filed the appeals. In the meantime, c
the respondents were enlarged on bail by the Chief
Judicial Magistrate.

    The question for consideration before the Court
was: whether the High Court was justified in granting
anticipatory bail u/s 438 of the Code of Criminal                D
Procedure, 1973 to the respondents/accused when the
investigation is pending, and, particularly, both the
accused had been absconding all along and not
cooperating with the investigation.
                                                                 E
    Allowing the appeals, the Court

     HELD: 1.1. The power exercisable u/s 438 of the
Code of Criminal Procedure, 1973 is somewhat
extraordinary in character and it is to be exercised only        F
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. [para 10) [779-
E-F]
                                                                 G
     Adri Dharan Das vs. State of W.B.,                 2005
(2) SCR 188 =(2005) 4 sec 303- relied on.
    1.2. If anyone is declared as an absconder/
proclaimed offender in terms of s. 82 of the Code, he is         H
    774    SUPREME COURT REPORTS             [2013] 12 S.C.R.

A not entitled to the relief of anticipatory bail. In the case
  on hand, a perusal of the materials i.e., confessional
  statements of co-accused persons reveals that the
  respondents administered poisonous substance to the
  deceased. Further, the statements of witnesses that were
B recorded and the report of the Department of Forensic
  Medicine & Toxicology Government Medical College &
  Hospital, have confirmed the existence of poison in the
  food item consumed by the deceased. Further, it is
  brought to notice of the Court that warrants were issued
c for the arrest of the respondents. Since they were not
  available/traceable, a proclamation u/s 82 of the Code
  was also issued. All these materials were neither adverted
  to nor considered by the High Court while granting
  anticipatory bail and it, without indicating any reason
  except stating "facts and circumstances of the case",
0
  granted an order of anticipatory bail to both the accused.
  [para 12] [781-E-H; 782-A-B]

        Lavesh vs. State (NCT of Delhi) 2012 (7) SCR 469    =
    (2012) 8 sec 730 - relied on.
E
       1.3. It is relevant to point out that both the accused
  are facing prosecution for offences punishable u/ss 302
  and 1208 read withs. 34 of IPC. In such serious offences,
  particularly, the respondents/accused being proclaimed
F offenders, the impugned orders of granting anticipatory
  bail cannot be sustained. The High Court failed to
  appreciate that where the accused has been declared as
  an absconder and has not cooperated with the
  investigation, he should not be granted anticipatory bail.
G The impugned orders of the High Court are set aside.
  Consequently, the subsequent order of the CJM
  releasing the accused on bail after taking them into
  custody in compliance with the impugned order of the
  High Court is also set aside. [para 12-13] [782-B-E]
H
   STATE OF MADHYA PRADESH v. PRADEEP                      775
                SHARMA
                      Case Law Reference:                          A

     2005 (2) SCR 188         relied on              para 11
     2012 (7) SCR 469         relied on              para 12
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal             B
No. 2049 of 2013.

    From the Judgment and Order dated 10.01.2013 of the
High Court of M.P at Jabalpur in MCRC NO. 9952 of 2012.

                            WITH                                   c
Criminal Appeal No. 2050 of 2013.

    Vibha Datta Makhija, Saurabh Mishra, Vanshaja Sukla and
Archi Agnihotri for the Appellant.
                                                                   D
    Niraj Sharma for the Respondent.

    The Judgment of the Court was delivered by

    P. SATHASIVAM, CJI. 1. Leave granted.
                                                                   E
    2. These appeals are filed against the orders dated
10.01.2013 and 17.01.2013 passed by the High Court of
Madhya Pradesh Principal Seat at Jabalpur in Misc. Criminal
Case Nos. 9996 of 2012 and 15283 of 2012 respectively
whereby the High Court granted anticipatory bail to the            F
respondents herein.

    3. Brief facts:

     (a) The case of the prosecution is that Rafesh Singh
Thakur (the deceased), resident of village Gopalpur, lehsil        G
Chaurai, District Chhindwara, Madhya Pradesh and Pradeep
Sharma (respondent herein), resident of the same village, were
having enmity with each other on account of election to the post
of Sarpanch.
                                                                   H
    776       SUPREME COURT REPORTS                [2013] 12 S.C.R.


A       (b) On 10.09.2011, Pradeep Sharma (respondent herein),
  in order to get rid of Rajesh Singh Thakur (the deceased),
  conspired along with other accused persons and managed to
  call him to the Pawar Tea House, Chhindwara on the pretext of
  setting up of a tower in a field where they offered him poisoned
B milk rabri (sweet dish).

      (c) After consuming the same, when he left the place to
  meet his sister, his condition started getting deteriorated
  because of vomiting and diarrhea. Immediately, the father of
C the deceased took him to the District Hospital, Chhindwara
  wherefrom he was referred to the Government Hospital,
  Chhindwara.

       (d) Since there was no improvement in his condition, on
  11.09.2011, he was shifted to the Care Hospital, Nagpur where
D he took his last breath. The hospital certified the cause of death
  to be poisoning. On the very same day, after sending the
  information to the Police Station, Sitabardi, Nagpur, the body
  was sent for the post mortem.

E      (e) lnder Singh Thakur-father of the deceased submitted
  a written complaint to the Police Station Kotwali, Chhindwara
  on 13.09.2011 suspecting the role of the respondents herein.
  After investigation, a First Information Report (in short 'the FIR')
  being No. 1034/2011 dated 18.10.2011 was registered under
F Sections 302 read with 34 of the Indian Penal Code, 1860 (in
  short 'the IPC').

          (f) On 01.08.2012, Pradeep Sharma (respondent herein)
  moved an application for anticipatory bail by filing Misc.
G Criminal Case No. 7093 of 2012 before the High Court which
  got rejected vide order dated 01.08.2012 on the ground that
  custodial interrogation is necessary in the case.

      (g) On 26.08.2012, a charge sheet was filed in the court
  of Chief Judicial Magistrate, Chhindwara against Sanjay
H Namdev, Rahul Borkar, Ravi Paradkar and Vijay @ Monu
    STATE OF MADHYA PRADESH v. PRADEEP                      777
         SHARMA [P. SATHASIVAM, CJI.]
Brahambhatt whereas the investigation in respect of Pradeep         A
Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi
(respondents herein), absconding accused, continued since
the very date of the incident.

     (h) On 21.11.2012, arrest warrants were issued against         B
Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh
Raghuvanshi but the same were returned to the Court without
service. Since the accused persons were not traceable, on
29.11.2012, a proclamation under Section 82 of the Code of
Criminal Procedure, 1973 (in short 'the Code') was issued           c
against them for their appearance to answer the complaint.

     (i) Instead of appealing the order dated 01.08.2012,
Pradeep Sharma (respondent herein) filed another application
for anticipatory bail being Misc. Criminal Case No. 9996 of
2012 before the High Court. Vide order dated 10.01.2013, the        D
High Court granted anticipatory bail to Pradeep Sharma
(respondent herein). Similarly, another accused-Gudda @
Naresh Raghuvanshi was granted anticipatory bail by the High
Court vide order dated 17.01.2013 in Misc. Criminal Case No.
15283 of 2012.                                                      E

    0) Being aggrieved by the orders dated 10.01.2013 and
17.01.2013, State of Madhya Pradesh has filed the above
appeals before this Court.
                                                                    F
     (k) In the meantime, the respondents herein approached
the Court of Chief Judicial Magistrate, Chhindwara for the grant
of regular bail. Vide order dated 20.02.2013, the accused
persons were enlarged on bail.

      (4) Heard Ms. Vibha Datta Makhija, learned senior counsel     G
for the appellant-State and Mr. Niraj Sharma, learned counsel
for the respondents.

    5. The only question for consideration in these appeals is
whether the High Court is justified in granting anticipatory bail   H
    778       SUPREME COURT REPORTS                [2013] 12 S.C.R.


A   under Section 438 of the Code to the respondents/accused
    when the investigation is pending, particularly, when both the
    accused had been absconding all along and not cooperating
    with the investigation.

       6. Ms. Vibha Datta Makhija, learned senior counsel for the
B
  appellant-State, by drawing our attention to the charge sheet,
  submitted that the charges filed against the respondents/
  accused relate to Sections 302, 1208 and 34 of the IPC which
  are all serious offences and also of the fact that both of them
C being absconders from the very date of the incident, the High
  Court is not justified in granting anticipatory bail that too without
  proper analysis and discussion.

       7. On the other hand, Mr. Niraj Sharma, learned counsel
  for the respondents in both the appeals supported the order
D passed by the High Court and prayed for dismissal of the
  appeals filed by the State.

        8. We have carefully perused the relevant materials and
    considered the rival contentions.
E        9. In order to answer the above question, it is desirable to
    refer Section 438 of the Code which reads as under:-

          "438. Direction for grant of bail to person
          apprehending arrest.-(1) Where any person has
F         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 event of such arrest he shall
          be released on bail; and that Court may, after taking into
G         consideration, inter alia, the following factors, namely-

                 (1) the nature and gravity of the accusation;

                 (i1) the antecedents of the applicant including the
                 fact as to whether he has previously undergone
H                imprisonment on conviction by a Court in respect
    STATE OF MADHYA PRADESH v. PRADEEP                      779
         SHARMA [P. SATHASIVAM, CJI]
             of any cognizable offence;                             A

             (iii) the possibility of the applicant to flee from
             justice; and

             (iv) where the accusation has been made with the
             object of injuring or humiliating the applicant by     B
             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
                                                                    c
    be, the Court of Session, has not passed any interim order
    under 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         D
    such application.

    Xxx )()()( xxx''
     10. The above provision makes it clear that the power          E
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        F
otherwise misuse his liberty.

    11. In Adri Dharan Oas vs. State of W.B., (2005) 4 SCC
303, this Court considered the scope of Section 438 of the
Code as under:-
                                                                    G
    "16. Section 438 is a procedural provision which is
    concerned with the personal liberty of an individual who is
    entitled to plead 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           H
    780        SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A          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 be
           founded on reasonable grounds. Mere "fear" is not "belief'
B          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 is based that he may be arrested
c          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
D
          passed. 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
E         be said that the applicant's apprehension that he may be
          arrested is genuine. Normally a direction should not issue
          to the effect that the applicant shall be released on bail
          "whenever arrested for whichever offence whatsoever".
          Such "blanket order" should not be passed as it would
F         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 commission of crimes nor a shield against
          any and all kinds of accusations likely or unlikely. On the
G         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."

H         12. Recently, in Lavesh vs. State (NCT of Delhi), (2012)
    STATE OF MADHYA PRADESH v. PRADEEP                        781
         SHARMA [P. SATHASIVAM, CJI.]
8 SCC 730, this Court, (of which both of us were parties)             A
considered the scope of granting relief under Section 438 vis-
a-vis to 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:
                                                                      B
    "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      c
    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   D
    bail."

     It is clearfrom 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.
In the case on hand, a perusal of the materials i.e., confessional    E
statements of Sanjay Namdev, Pawan Kumar@ Ravi and Vijay
@ Monu Brahambhatt reveals that the respondents
administered poisonous substance to the deceased. Further,
the statements of witnesses that were recorded and the report
of the Department of Forensic Medicine & Toxicology                   F
Government Medical College & Hospital, Nagpur dated
21.03.2012 have confirmed the existence of poison in milk
rabri. Further, it is brought to our notice that warrants were
issued on 21.11.2012 forthe arrest of the respondents herein.
~ince they were not available/traceable, a proclamation under         G
Section 82 of the Code was issued on 29.11.2012. The
documents (Annexure-P13) produced by the State clearly show
that the CJM, Chhindwara, M.P. issued a proclamation
 requiring the appearance of both the respondents/accused
 under Section 82 of the Code to answer the complaint on              H
    782      SUPREME COURT REPORTS                 [2013] 12 S.C.R.

A 29.12.2012. All these materials were neither adverted to nor
  considered by the High Court while granting anticipatory bail
  and the High Court, without indicating any reason except stating
  "facts and circumstances of the case", granted an order of
  anticipatory bail to both the accused. It is relevant to point out
B that both the accused are facing prosecution for offences
  punishable under Sections 302 and 1208 read with Section 34
  of IPC. In such serious offences, particularly, the respondents/
  accused being proclaimed offenders, we are unable to sustain
  the impugned orders of granting anticipatory bail. The High
c Court failed to appreciate that it is a settled position of law that
  where the accused has been declared as an absconder and
  has not cooperated with the investigation, he should not be
  granted anticipatory bail.

0      13. In the light of what is stated above, the impugned
  orders of the High Court dated 10.01.2013 and 17.01.2013 in
  Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012
  respectively are set aside. Consequently, the subsequent order
  of the CJM dated 20.02.2013 in Crime No. 1034 of 2011
E releasing the accused on bail after taking them into custody in
  compliance with the impugned order of the High Court is also
  set aside.

       14. In view of the same, both the respondents/accused are
F directed to surrender before the court concerned within a period
  of two weeks failing which the trial Court is directed to take
  them into custody and send them to jail.

          15. Both the appeals are allowed on the above terms.

G R.P.                                             Appeals allowed.