Naveen Yadav v. State

1. This is an application filed under Section 438 Cr.P.C. on behalf of the Applicant Naveen Yadav S/o Sh. Arjun Singh for grant of anticipatory bail in case FIR No. 427/2023 dated 15.05.2023 registered under Sections 498A/304B/34 IPC at PS: Jahangir Puri.

2. Status report has been filed on behalf of the State.

3. It is stated in the status report and not disputed on behalf of the Applicant that vide order dated 03.11.2023, Applicant herein has been declared as an absconder by the Trial Court. The order is unassailed till date. First and foremost objection raised on behalf of the State is that this application cannot be entertained in view of the judgments of the Supreme Court in Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730; State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171 and State of Haryana v. Dharamraj, 2023 SCC OnLine SC 1085. It is argued by learned APP that no doubt, the Supreme Court has also observed that in exceptional and rare cases, the Supreme Court and High Courts can consider a plea seeking anticipatory bail, despite being a proclaimed offender, given that the Supreme Court and High Courts are Constitutional Courts, however, no exceptional situation arises in the present case. It is also submitted that Charge Sheet has been filed and there is enough evidence at this stage against the Applicant to proceed inasmuch as Complainant Satish Yadav and his wife Kusum Yadav, parents of the deceased, have stated that the Applicant, who was the maternal brother-in-law of the deceased, was influencing/interfering in day-to-day personal life of the deceased. On 12.05.2023, he and his wife pressurized the deceased to give a confession forcefully that she was pregnant due to her illicit relationships with her boyfriend and even made a video recording the confession. He also instigated deceased’s husband to give divorce if she did not fulfill the dowry demand. The death has taken place within one month of the marriage and the Applicant has played a major role in the unnatural death of the deceased. Parents of the deceased have also stated that on receiving information from their daughter that she was being harassed, they visited her matrimonial home on 12.05.2023 to pacify the situation, however, her in-laws including the Applicant insulted them. Relevant paragraphs from the Charge Sheet have been relied on in support of this submission.

4. Learned counsel appearing on behalf of the Applicant, per contra, submits that the status of the Applicant of being an absconder cannot be an absolute bar for considering the present application for anticipatory bail. In any case, the Supreme Court in the judgments relied upon by the State has observed that being a Constitutional Court, the High Court can entertain the application for anticipatory bail in exceptional and rare cases and the present case falls in the category of ‘exceptional case’. This, it is urged, is on account of the fact that: (a) investigation is over; (b) wife of the Applicant has been granted anticipatory bail by the Supreme Court in SLP (CRL.) NO. 13865/2023 by order dated 04.01.2024; (c) mother-in-law of the deceased has been placed in Column No. 12; and (d) Applicant along with his wife and two minor children was living separately and not residing in the matrimonial house of the deceased. Moreover, Applicant is not a proclaimed offender since Section 82(4) Cr.P.C. does not include the offences alleged to be committed in the Charge Sheet and in law, there is a difference between proclaimed offender and proclaimed person.

5. I have heard learned counsel for the Applicant and learned APP for the State.

6. It is an admitted position that by an order dated 03.11.2023, Applicant has been declared as absconder and the order is unassailed till date. The question that thus arises is whether the present application seeking anticipatory bail ought to be entertained in view of this undisputed fact. The answer to this question need not detain this Court, as the law is no longer res integra. This very question came up before the Supreme Court in Prem Shankar Prasad v. State of Bihar and Another, (2022) 14 SCC 516, where the Complainant challenged the order of the High Court granting anticipatory bail to the accused. The accused in the said case was absconding and concealing himself to avoid service of warrants of arrest and the Chief Judicial Magistrate issued a proclamation under Section 82 Cr.P.C., whereafter the accused filed anticipatory bail application before the Trial Court and by a detailed order, the learned Trial Court dismissed application and rejected the bail on merits as well as on the ground that the accused was absconding and proceedings had been initiated under Sections 82 and 83 Cr.P.C., and thus, he was not entitled to anticipatory bail. The accused approached the High Court, which allowed the bail application and released the accused, subject to conditions mentioned in the order. Examining the issue before it, the Supreme Court observed that after investigation, Charge Sheet had been filed against the accused and thus, a prima facie case was made out. Arrest warrant was issued by the learned Magistrate followed by proceedings under Sections 82 and 83 Cr.P.C. and only thereafter the accused filed the anticipatory bail application. The Supreme Court further observed that despite the fact having been brought to the notice of the High Court that accused was absconding and proclamation proceedings had been initiated, High Court ignored this relevant aspect and granted anticipatory bail, which fact ought not to have been ignored. The Supreme Court also referred to its earlier judgments in Pradeep Sharma (supra) and Lavesh (supra) and held that the High Court committed an error in granting anticipatory bail to the accused ignoring the proceedings under Sections 82 and 83 Cr.P.C. Relevant paragraphs are as follows:- “10.2. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that Respondent 2-accused is absconding and even the proceedings under Sections 82/83CrPC have been initiated as far back as on 10-1-2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to Respondent 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 the learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under Sections 82/83CrPC 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. xxx xxx xxx

11. Thus the High Court has committed an error in granting anticipatory bail to Respondent 2-accused ignoring the proceedings under Sections 82/83CrPC.”

7. In Abhishek v. State of Maharashtra and Others, (2022) 8 SCC 282, the Supreme Court held as follows:-

8. In an earlier judgment of the Supreme Court in Lavesh (supra), the Supreme Court observed that as the Appellant had been declared as an absconder, there was no question of granting anticipatory bail, as his conduct did not entitle him to the relief prescribed in Section 438 Cr.P.C. Reference may also be made in this regard to a recent judgment of the Supreme Court in Dharamraj (supra), which is instructive on the issue under consideration. In this case, the State had filed an appeal seeking cancellation of anticipatory bail granted to the Respondent therein, accused of serious offences. Respondent had been declared a Proclaimed Offender and the contention of the State was that grant of indulgence under Section 438 Cr.P.C. by the High Court to a Proclaimed Offender was erroneous. Referring to its earlier decisions in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565; Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, with respect to the contours of anticipatory bail, the Supreme Court first observed that the Court was cognizant that liberty was not to be interfered with easily more so, when an order of pre-arrest bail stands granted by the High Court. The Supreme Court thereafter observed that much like bail, grant of anticipatory bail is to be exercised with judicial discretion. Noting the reasons which weighed with the High Court to grant bail, two of them being that Respondent’s declaration as a Proclaimed Offender was not on account of him deliberately avoiding the Court and that he was a first time offender and deserved a chance to ‘reform and course correct’, the Supreme Court held that the logic of the High Court did not commend itself to the Supreme Court as what the High Court had lost sight of was that the accused was a declared Proclaimed Offender. Relevant passages from the judgment are as follows: