Appeal
Appeal against directing the trial court to consider and grant bail on the same day on surrender of absconder
2. This appeal has been preferred by the Appellant (hereinafter referred to as “the original complainant”) challenging the Order dated 19.01.2024 passed in Misc. Criminal Case No. 1047 of 2024 (hereinafter referred to as “Impugned Order”) by the High Court of Madhya Pradesh at Jabalpur (hereinafter referred to as “the High Court”), wherein the High Court disposed of the third anticipatory bail application filed by Respondent No.2 (hereinafter referred to as “the Accused”), while directing the Accused to surrender before the trial Court and move an application for regular bail. The High Court further directed that the trial Court shall grant bail to the Accused on the same day after imposing adequate conditions in accordance with law.
Factual matrix
4. The offences in question occurred as a result of purported political rivalry between two groups. A total of three FIRs came to be lodged in connection with the incidents that happened on 02.06.2017:
A. Firstly, FIR No.217/2017 came to be registered at the instance of the original complainant on 02.06.2017 with the Betma Police Station, District Indore (Rural) for the offence punishable under Sections 427, 294, 323, 147, 148, 149 of the Indian Penal Code, 1860 (for short, “the IPC”) respectively against nine accused persons including the Accused and his father, co-accused Chandan Singh.
B. Secondly, FIR No.226/2017 (hereinafter referred to as “the Subject FIR”) wherein the Impugned Order of anticipatory bail was granted, came to be lodged by the original complainant on 03.06.2017 with the Pithampur Police Station, District Dhar for the offence punishable under Sections 341, 147, 148, 149, 307 of the IPC respectively and Sections 25 and 27 of the Arms Act, 1959 respectively against fourteen accused persons including the Accused and his father, co-accused Chandan Singh, alleging that on 02.06.2017, when the original complainant and his companions were returning after attending a function, they were wrongfully restrained near Ghatabillod Petrol Pump on Pithampur Road by the named accused, who stopped the original complainant’s Scorpio car, attacked them and damaged the car with stones, sticks, swords and gunfire with the intention of killing them. It is further alleged that when the original complainant later proceeded to report the matter near co-accused – Chandan Singh’s house, the named accused in the FIR, including the Accused, again blocked the way from both sides and attempted to kill them by firing guns, in which one Shailendra alias Pintu and one Bablu Chaudhary sustained bullet injuries. It is alleged that about 100-150 persons, with common intention, pelted stones, attacked with sticks and fired bullets. The injured Bablu Chaudhary later succumbed to his injuries, whereupon, Section 302 of the IPC was added to the Subject FIR.
C. Thirdly, FIR No.227/2017 (hereinafter referred to as “the Cross FIR”) came to be registered by Co-accused – Chandan Singh on 03.06.2017 with the Pithampur Police Station, District Dhar for the offence punishable under Sections 147, 148, 149, 307, 294, 506 of the IPC respectively and Sections 25 and 27 of the Arms Act, 1959 respectively against nine accused persons including the original complainant.
Accused-respondent no.2 abscond since the date of incident
6. The Accused had been absconding since the date of the incident, i.e., 02.06.2017. Consequently, the Pithampur Police Station addressed a letter dated 17.07.2017 to the Naib Tehsildar, Betma Tehsil, Indore, seeking details of the movable and immovable properties of the Accused, in connection with the Subject FIR. In response thereto, the Naib Tehsildar, Betma Tehsil, Delapur, furnished the requisite information regarding the movable and immovable properties of the Accused vide letter dated 18.07.2017.
Proceedings under sections 82 and 83 Cr.P.C
7. Subsequently, vide letter dated 20.07.2017, the Office of Pithampur Police Station requested the Judicial Magistrate, Dhar to initiate legal proceedings under Sections 82 and 83 of the Code of Criminal Procedure, 1973 (for short, “the CrPC”) for proclamation against the absconding Accused.
Letters written to the J.M informing about the absconding accused
8. Further, the Office of Pithampur Police Station addressed a letter dated 20.08.2017 to the Superintendent of Police, Dhar, requesting to file a supplementary charge-sheet in respect of the absconding Accused under Section 173(8) of the CrPC, stating that while the alleged offences in the Subject FIR were proved qua the other accused persons, seven of the named accused, including the Accused, were absconding since the time of the incident and were being searched till date. A similar letter dated 27.08.2017 was also written to the Judicial Magistrate First Class, Court of Dhar, by the Inspector of Pithampur Police Station, informing the Court about the absconding Accused, whose search was still ongoing.
Record does not indicate the court declaring accused as proclaimed offender
9. Notwithstanding the exchange of the aforesaid letters, there is nothing on record to indicate that the absconding Accused was declared as a proclaimed offender under Section 82 of the CrPC.
One of the victim lodged FIR against accused that he was threatened by the accused if he objects the bail application
10. On 10.05.2019, Shailendra alias Pintu, who was one of the victims in respect of the Subject FIR, lodged an FIR No.272/2019 against the Accused at Pithampur Police Station under Sections 341, 506 of the IPC respectively, alleging that the Accused threatened to kill him if he pursued objections to the Accused’s bail application before the Court.
Apprehending arrest accused moved application for A.B
11. In apprehension of his arrest, the Accused, on 28.11.2019, moved an application for anticipatory bail under Section 438 of the CrPC before the trial Court, which was dismissed vide order dated 09.12.2019. The Court noted that the Accused had been absconding since the date of the incident itself, and that a reward of Rs.10,000/- had been declared by the Superintendent of Police, Dhar and Rs.15,000/- by the Deputy Inspector General of Police, Indore (Rural) for his arrest. The Court also took note of the criminal antecedents of the Accused, including cases registered at Police Station Betma, and Police Station Pithampur, and observed that he is also absconding in FIR No.217/2017 of Police Station Betma. It was further opined that the grant of anticipatory bail may enable the Accused to influence witnesses and adversely affect the prosecution, thus warranting the dismissal of his application.
Third A.B was moved by accused stating other accused was acquitted
16. Be that as it may, on the strength of the acquittal of the coaccused persons named in the Subject FIR, the Accused preferred his third anticipatory bail application, being MCRC No.1047 of 2024, before the High Court.
High court directed the trial court to grant bail to the accused on the same day imposing conditions
17. The High Court has disposed of the said application, by way of the Impugned Order, directing the Accused to surrender before the trial Court and move a Regular Bail and further, that the trial Court shall grant bail to the Accused on the same day after imposition of the adequate conditions.
Reason for High Court for aforesaid direction: 18. The High Court has directed the aforesaid, in view of the fact that the prosecution did not produce any material or evidence indicating the involvement of the accused persons in the Subject FIR including the Accused herein, though it has been clarified that the said observations were for consideration of the bail application only.
Analysis
34. We have heard the learned counsel appearing on behalf of the parties and have perused the relevant material placed on record.
Question to determine
35. The only question that requires our determination in this appeal is whether the High Court, by the Impugned Order, is justified in granting anticipatory bail under Section 438 of the CrPC to the Accused?
Anticipatory bail explained
36. At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been defined in the CrPC. As observed by this Court in the case of Balchand Jain (Shri) v. State of Madhya Pradesh, reported in (1976) 4 SCC 572, “anticipatory bail” means “bail in anticipation of arrest”. Under criminal jurisprudence, anticipatory bail is a legal safeguard that is designed to protect individual liberty against arbitrary arrest in non-bailable offences. It is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Power to grant anticipatory bail under Section 438 of the CrPC vests only with the Court of Sessions or the High Court.
Statutory framework for Anticipatory bail and Judgments
37. In this context, this Court has considered the statutory framework under Section 438 of the CrPC and various relevant precedents laying down the requisite factors guiding the grant of anticipatory bail in the cases of Shri Gurbaksh Singh Sibbia and Others vs. State of Punjab, reported in (1980) 2 SCC 565; Ram Govind Upadhyay v. Sudarshan Singh and Others, reported in (2002) 3 SCC 598; and Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Another, reported in (2004) 7 SCC 528. The relevant principles in the case of Prasanta Kumar Sarkar v. Ashis Chatterjee and Another reported in (2010) 14 SCC 496, were restated thus:
“9. […] It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.”
38. In the case of Mahipal v. Rajesh Kumar alias Polia and Another, reported in (2020) 2 SCC 118, this Court observed as under:
“16. The considerations which guide an appellate court in assessing the correctness of an order granting bail stand on a footing distinct from those governing an application for cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether the discretion exercised in granting bail was improper or arbitrary. The relevant test is whether the order granting bail is perverse, illegal, or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violation of the conditions of bail by the accused to whom bail has been granted.”
38. In the case of Mahipal v. Rajesh Kumar alias Polia and Another, reported in (2020) 2 SCC 118, this Court observed as under:
“16. The considerations which guide an appellate court in assessing the correctness of an order granting bail stand on a footing distinct from those governing an application for cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether the discretion exercised in granting bail was improper or arbitrary. The relevant test is whether the order granting bail is perverse, illegal, or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violation of the conditions of bail by the accused to whom bail has been granted.”
39. In the recent decision of the Constitutional Bench of this Court in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, reported in (2020) 5 SCC 1, it was again clarified that the Courts should keep the following points as guiding principles, in dealing with applications under Section 438 of the CrPC:
“92.1 to 92.9”
Fact accused absconded is not in dispute in this case
40. In the given facts and circumstances of the present case, the Subject FIR lodged by the original complainant against fourteen accused persons, including the Accused, contained serious allegations wherein one of the companions of the original complainant died due to the gunshots, and others received grievous injuries. The Cross FIR is also on record from the side of the co-accused Chandan Singh against nine persons including the original complainant. However, it is not in dispute that the Accused has been absconding from the date of the incident, i.e., 02.06.2017, and has never cooperated with the investigation; thus, the conduct of the Accused throughout the entire investigation has been highly questionable.
41. It is only in the year 2019, i.e., after 2 years, that the Accused filed his first anticipatory bail before the Sessions Judge, Bhopal, and in between this period, the police authorities have also announced the reward for the arrest of the Accused, but the Accused could not be arrested, as he was not traceable by the police.
No anticipatory bail for accused since he failed to cooperate with the invsetigation
42. Even the aforesaid letters dated 17.07.2017 and 20.07.2017 were exchanged by the police authorities with a view to initiate proceedings under Sections 82 and 83 of the CrPC. It is to be noted that the High Court, vide order dated 11.02.2020, while dismissing the second application for anticipatory bail filed by the Accused, stated that the Accused was a proclaimed offender, but there is no material on record placed before us to categorically establish that the absconding Accused was, in fact, declared a proclaimed offender. Nonetheless, this circumstance also does not enure to the benefit of the Accused for claiming anticipatory bail, particularly when he himself failed to cooperate with the investigation.
Judgment reference for no anticipatory bail for absconder
43. In this regard, this Court in the case of Vipan Kumar Dhir v. State of Punjab and Another, reported in (2021) 15 SCC 518 held that:
“14. Even if there was any procedural irregularity in declaring the respondent-accused as an absconder, that by itself was not a justifiable ground to grant pre-arrest bail in a case of grave offence, save where the High Court, on perusal of the case diary and other material on record, is prima facie satisfied that it is a case of false or overexaggerated accusation. Such being not the case here, the High Court went on a wrong premise in granting anticipatory bail to the respondent-accused.”
If no materials on record show any prima facie against the absconding accused then the court may grant Anticipatory bail
44. It is thus a trite position that an absconder is not entitled to the relief of anticipatory bail as a general rule, however, in certain exceptional cases, where on a perusal of the FIR, case diary and other relevant materials on record, the Court is of the prima facie opinion that no case is made out against the absconding accused, then the power of granting anticipatory bail may be exercised in favour of the absconding accused. However, no such exceptional case is made out in favour of the Accused as per the documents on record.
45. Taking note of all these aspects, we are of the view that the High Court in the Impugned Order has not rightly exercised the discretion to grant the anticipatory bail, as it was not a fit case in which the discretion of granting anticipatory bail could be exercised. The Accused was a member of the mob, as disclosed in the Subject FIR, and has not only absconded from the investigation but has also threatened to kill the injured victim Shailendra alias Pintu, who was also the eye witness in respect of the Subject FIR, for opposing his bail application, and this fact can also be corroborated by the registration of FIR No.272/2019 dated 10.05.2019 against the Accused.
Acquittal of co-accused does not ipso facto entitle the absconder to get anticipatory relief
47. Furthermore, on account of subsequent developments, the ground raised by the Accused that other co-accused in the Subject FIR have been acquitted by the trial Court vide judgment dated 24.06.2023 does not ipso facto entitle him to the relief of anticipatory bail on the ground of parity, particularly when the Accused himself failed to cooperate with the Court and delayed the trial of the other co-accused by absconding. Moreover, the accusations against the Accused have not been tried yet and are required to be independently examined and decided in the course of a separate trial.
50. It is apposite to mention that granting the relief of anticipatory bail to an absconding accused person sets a bad precedent and sends a message that the law-abiding co-accused persons who stood trial, were wrong to diligently attend the process of trial and further, incentivises people to evade the process of law with impunity.
Post-bail misconduct is a ground for cancellation
51. Additionally, it was contended by the learned Counsel for the Accused that there are no allegations of post-bail misconduct or violation of bail conditions against him. However, the said contention is entirely misconceived and legally unsound since post-bail conduct is never a valid consideration while dealing with an appeal against grant of bail, and such conduct is only relevant in an application for cancellation of bail. Reference can be made to the judgment of this Court in Ashok Dhankad v. State of NCT of Delhi and Another, reported in 2025 SCC OnLine SC 1690, wherein this Court laid down the relevant considerations for an appeal against order granting bail. The relevant portion is extracted as under:
“19. The principles which emerge as a result of the above discussion are as follows:
(i) An appeal against grant of bail cannot be considered to be on the same footing as an application for cancellation of bail;
(ii) The Court concerned must not venture into a threadbare analysis of the evidence adduced by prosecution. The merits of such evidence must not be adjudicated at the stage of bail;
(iii) An order granting bail must reflect application of mind and assessment of the relevant factors for grant of bail that have been elucidated by this Court. [See: Y v. State of Rajasthan (Supra); Jaibunisha v. Meherban and Bhagwan Singh v. Dilip Kumar @ Deepu].
(iv) An appeal against grant of bail may be entertained by a superior Court on grounds such as perversity; illegality; inconsistency with law; relevant factors not been taken into consideration including gravity of the offence and impact of the crime;
(v) However, the Court may not take the conduct of an accused subsequent to the grant bail into consideration while considering an appeal against the grant of such bail. Such grounds must be taken in an application for cancellation of bail; and
(vi) An appeal against grant of bail must not be allowed to be used as a retaliatory measure. Such an appeal must be confined only to the grounds discussed above.”
(Emphasis supplied).
Conclusion
Direction the absconder-accused to surrender before the court
52. In light of the above discussion, we set aside the Impugned Order dated 19.01.2024, and direct the Accused to surrender before the Court concerned within a period of four weeks from today. We make it clear that the observations made hereinabove are limited for the purpose of the present proceedings and would not be construed as any opinion on the merits of the case. We also clarify that after the surrender, the Accused will be free to seek regular bail before the Court concerned, and any such prayer shall be decided in accordance with law, without being prejudiced by the present judgment.
53. The present appeal stands allowed in the aforesaid terms.
Party
Balmukund Singh Gautam versus State of Madhya Pradesh and Anr - Criminal Appeal No. 885 of 2026 (arising out of SLP (Criminal) No. 15349 of 2024) - 2026 INSC 157 - February 13, 2026 - Hon’ble Mr. Justice J.B. Pardiwala and Hon’ble Mr. Justice Vijay Bishnoi.
