Proclaimed Offenders and Pre-arrest Bail: Carving Out Exceptions Under Section 82 CrPC and Section 84 BNSS
I. Introduction
The interrelation between Section 82 of the Code of Criminal Procedure, 1973 (CrPC) and Section 438 CrPC, which deals with the grant of anticipatory bail, has been the subject of considerable judicial interpretation. The corresponding provisions under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are Sections 84 and 482, respectively. Judicial precedents on this issue broadly fall into two categories. The first category of cases holds that once an accused has been declared a proclaimed offender under Section 82 CrPC (or Section 84 BNSS), he is not entitled to the relief of anticipatory bail. The second category, however, carves out exceptions to this general rule, affirming that there is no absolute bar on the grant of anticipatory bail even where the accused has been declared a proclaimed offender.
Notably, judgments forming part of this second category do not comprehensively enumerate the specific factual circumstances that may justify invoking such exceptions. At first impression, this divergence may appear as a legal contradiction. However, upon a closer and more nuanced reading of the judicial authorities, it becomes evident that the second line of cases merely delineates exceptions to the rule laid down in the first. This article seeks to examine both strands of jurisprudence and aims to identify the exceptional situations in which courts have exercised their discretion to grant anticipatory bail, notwithstanding the fact that the accused stands declared as a proclaimed offender under Section 82 of the CrPC or Section 84 of the BNSS.
Before delving into the judicial pronouncements on this subject, it is imperative to first examine the statutory framework governing the proclamation of an absconding person under the Code of Criminal Procedure, 1973 (CrPC), and its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The relevant provisions are reproduced in the comparative table below…
Section 82 CrPC:
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.
Section 84 BNSS
84. 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.
It may be noted that the only substantive difference between Section 82 of the CrPC and Section 84 of the BNSS is the explicit inclusion of the phrase “whether after taking evidence or not” in the latter. However, this distinction bears no material impact for the present analysis. Accordingly, all judicial pronouncements interpreting Section 82 of the CrPC shall remain equally applicable to proceedings under Section 84 of the BNSS.
II. General Rule: No Anticipatory Bail for Absconding Accused Declared as Proclaimed Offenders:
It is well settled law that normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. The Hon’ble Supreme Court in the case of Lavesh v. State (NCT of Delhi), [2012] 7 SCR 469 : (2012) 8 SCC 730 held that:
“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 of Section 82 of the Code he is not entitled to the relief of anticipatory bail.”
Further reinforcing the general principle, the Hon’ble Supreme Court in State of Madhya Pradesh v. Pradeep Sharma, [2013] 12 SCR 772 : (2014) 2 SCC 171, observed:
“12. The High 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.”
This position was reiterated in Prem Shankar Prasad v. State of Bihar & Anr., [2021] 6 SCR 1176 : (2022) 14 SCC 516, where the Court, after referring to Pradeep Sharma (supra) and Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, held:
“16… It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.”
More recently, in Srikant Upadhyay & Ors. v. State of Bihar & Anr., [2024] 3 SCR 421, the Supreme Court emphasized:
“24…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.”
III. Judicial Carve-Outs: Exceptional Circumstances Where Anticipatory Bail May Be Granted Despite the Accused Being Declared a Proclaimed Offender
Most judgments on this issue agree that anticipatory bail can be granted in rare and exceptional cases, even when the accused has been declared a proclaimed offender. However, these judgments do not clearly define or list the circumstances in which such exceptions would apply. Therefore, to understand when anticipatory bail may still be granted, one must carefully examine the decisions of the Hon’ble Supreme Court and various High Courts to identify the specific facts and reasoning relied upon in such exceptional cases.
1. Distinction Between Maintainability and Entitlement: Anticipatory Bail May Be Considered Even Where the Accused Is Declared a Proclaimed Offender:
28. The word ‘Entitled’ used in the above referred para of Lavesh (supra) itself suggests that it talks mainly about entitlement on merits and not about maintainability. Perusal of Section 438 of CrPC makes it very clear that four factors as enumerated into Section 438(1) of CrPC contemplates four different exigencies in which factor (iii) refers the “possibility of the applicant to flee from justice” and consequence to this factor is ‘Abconsion of person’ or ‘his Concealment’ from Investigating Agency.
29. In other words if chance of fleeing from justice exists then application under Section 438 of CrPC can be rejected and when a person is declared as proclaimed offender as per Section 82 of CrPC. it means that factor (iii) of Section 438(1) of CrPC manifested in reality or in other words possibility of applicant to flee from justice converted into reality. To put it differently, Section 82 of CrPC is manifestation of “Apprehension” as contained in Section 438(1) factor (iii) of CrPC The judgments pronounced by the Apex Court in the case of Lavesh and Pradeep Sharma (supra) nowhere bar the maintainability of the application under Section 438 of CrPC in wake of person being declared as absconder under Sections 82 and 83 of CrPC and understandably so because this would not have been in consonance with letter and spirit of Constitution Bench judgment of Apex Court pronounced in the case of Gurbaksh Singh Sibbia etc. (supra) and Sushila Aggarwal and others (supra) as well as two Judge Bench of Apex Court in the case of Bharat Chaudhary and another (supra) as well as Ravindra Saxena (supra) because these judgments categorically held that anticipatory bail is maintainable even after filing of charge-sheet and till the person is not arrested.”
2. Anticipatory Bail May Be Granted Where Proclamation Is Issued in a Mechanical or Casual Manner
“6…It is incorrect to state that pursuant to the interim protection granted, the appellant was not cooperating in the investigation and in fact despite communication sent by the appellant to investigating authority, the investigating authority has not called her for joining the investigation.
8. Coming to the consideration of anticipatory bail, in the event of the declaration under Section 82 of the Cr.P.C., it is not as if in all cases that there will be a total embargo on considering the application for the grant of anticipatory bail.
9. When the liberty of the appellant is pitted against, this Court will have to see the circumstances of the case, nature of the offence and the background based on which such a proclamation was issued…”It may be noted that in this case, despite the accused getting interim protection, prosecution argued that she did not cooperate with the investigation which resulted into proclamation. Court did not accept this argument and granted anticipatory bail to accused.
3. Anticipatory Bail May Be Granted Where the Accused Had No Prior Knowledge of Proceedings or Proclamation
It is relevant to note that once the accused is declared as proclaimed offender, it is presumed that he has been absconding and his conduct has revealed that the consistent disobedience of on his part to comply with the orders of the trial Court. Thus, if it is shown the court in the anticipatory bail itself that accused had no knowledge about the FIR, summons, warrant or the fact he had submit to the process of law, he may be entitled to pre arrest bail.
The Hon’ble Supreme Court in the case of Srikant Upadhyay & Ors. v. State of Bihar & Anr, [2024] 3 S.C.R. 421, highlighted this aspect:
“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.”
“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 and obtained regular bail…”
Moreover, the Hon’ble High Court of Himachal Pradesh in the case of Mahender Kumar v. State of Himachal Pradesh (2020) 2020 SCC OnLine HP 2119, held that:
“11. Section 82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders. Even in Lavesh's case (supra), while laying down the law on anticipatory bails to absconders, Hon'ble Supreme Court structured the pronouncement by the words, “Normally.” An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013. After that, compelled by the lockdown, and fear created by the pandemic of COVID-19, returned home, where, for the first time, he came to know about the FIR and already declared as a proclaimed offender cannot be ruled out. Resultantly, the facts and circumstances are not normal. The legal maxim Domus sua cuique est tutissimum refugium, aptly describes the plight of the accused, which means every man's house is his safest refuge. Thus, the circumstances cannot be termed as normal for the accused, and he makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty.”
The Hon’ble Punjab and Haryana High Court through its judgement dated Feb 8, 2022 in the case of Subhash v. State of Haryana, CRM-M-485-2022, held that:
4. The explanation offered by the petitioner is mentioned in paragraph 6 of the petition, which are extracted as follows:
"That the petitioner had no knowledge about him being accused in this case. The petitioner was neither served nor any intimation with regard to his any alleged role in this case nor any intimation was supplied to him regard to presentation of challan and subsequently, he was declared offender without effecting service upon him."
“16. Section 82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders. Even in Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, (Para 10), while laying down the law on anticipatory bails to absconders, Hon'ble Supreme Court structured the pronouncement by the words, "Normally." An analysis of entire allegations creates a possibility of the accused ... Resultantly, the facts and circumstances are not normal. Thus, the circumstances cannot be termed as normal for the accused, and she makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty.”
4. Anticipatory Bail May Be Granted Where the Case Appears Prima Facie False or Grossly Exaggerated
It is to be noted that when the case includes the false or over-exaggerated accusation, the Courts have power to grant pre arrest bail even if the accused has been declared proclaimed offender.
The Hon’ble full bench of the Hon’ble Supreme Court in the case of Vipin Kumar Dhir v. State of Punjab and Ors, 2021 SCC OnLine SC 854, though cancelled the anticipatory bail granted to accused by the High Court because the gravity of offence in case was extremely heinous, however, laid down that if the Court is prima facie satisfied that that case includes the false or over-exaggerated accusation, then the pre arrest bail can be granted to accused even his being declared as proclaimed offender:
“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 case-diary and other material on record is, prima facie, satisfied that it is a case of false or over-exaggerated accusation.”
The Hon’ble Allahabad High Court in the case of Udit Arya V. State of U.P. (2023:AHC:96509) also held that:
“14. It is true that in the judgment passed in Lavesh (supra), the said applicant was not enlarged on anticipatory bail as the proceedings under Section 82 Cr.P.C. were complete. In the case of Lavesh (supra) there was no question of granting anticipatory bail. "Normally", when the accused was absconding and declared proclaimed absconder, the core of judgment in Lavesh (supra) was in the expression "normally" and when the accused absconded or concealed himself to avoid the execution of warrant.”
“18. After hearing the rival contentions, going through the record, considering the nature of accusations and antecedents of the applicant and taking into note the very fact that the cause of death has been opined to be septicaemia due to chronic illness of multiple organs involvement and also that there was no complaint against the applicant or his family members before the death of the deceased person and also that no visible injury has been observed on the body of the deceased person internally or externally, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1...”
IV. Conclusion:
The general principle that a proclaimed offender is not entitled to anticipatory bail stems from the need to uphold the sanctity of judicial process. However, Indian courts have clarified that this rule is not absolute. A crucial distinction must be made between the maintainability of an application and the entitlement to bail on merits. While the declaration under Section 82 CrPC or Section 84 BNSS does not bar the court from hearing an anticipatory bail application, such relief is typically denied unless exceptional circumstances are shown.
Judicial precedents have carved out certain exceptions, including: (i) the recognition that anticipatory bail remains maintainable despite a proclamation; (ii) situations where the proclamation is issued in a mechanical or casual manner; (iii) cases where the accused had no knowledge of the proceedings or proclamation; and (iv) instances where the accusations appear prima facie false or grossly exaggerated.
Additionally, the gravity of the offence plays a significant role in the court’s discretion. As clarified in Asha Dubey v. State of Madhya Pradesh, courts may adopt a more lenient view when the alleged offence is punishable with imprisonment of less than seven years. In such cases, the balance may tilt in favour of granting pre-arrest protection, especially where the accused has not deliberately evaded the process of law. It is also important to note that this general principle applies only when the proclamation is issued by a court under Section 82 CrPC or Section 84 BNSS. If the accused has merely been declared absconding by the police, or a “Farari Panchnama” has been drawn without judicial endorsement, the stricter rule barring anticipatory bail does not automatically come into play. Ultimately, the discretion to grant anticipatory bail to a proclaimed offender must be exercised judiciously, with due regard to the facts, the conduct of the accused, the nature of the proclamation, and the larger interests of justice.
