Legal Aid Proclaimed offender bail in Chandigarh mohali

Proclaimed offender bail

The police registered an FIR dated 19-07-2013, under Sections 376, 506 of the Penal Code, 1860, and Section 4 of the Protection of Children from Sexual Offences Act, 1860, on the allegations made by a 15-year-old girl against the petitioner of having coitus with her at the end of May 2013, by entering her home and also committing rape on her in the forest on 30-06-2013, when she was returning from school.

The police conducted an investigation, brought the victim for a medical checkup, and recorded her statement under Section 164 of the Criminal Procedure Code, but were unable to apprehend the accused. The cops then submitted a charge sheet without arresting the suspect. The Court issued Non-bailable Warrants (NBW) after taking cognizance of the crime, and upon their non-execution, approved the prosecution’s application and proceeded against the accused under Section 82 CrPC, proclaiming the petitioner a proclaimed criminal. It is important to remember that neither the bail petition nor the status report shows any criminal background.

Counsel for the petitioner

Counsel representing the petitioner, Abhilasha Kaundal, claims that detention without proof of guilt would be a terrible injustice to the petitioner and his family. Furthermore, the accused applicant’s behavior must be considered, as the petitioner voluntarily contacted this Court by filing a plea for anticipatory bail after being labeled a proclaimed felon. To build an extraordinary case, the accused claims that he and the victim were in love and that when he discovered that she was having an affair with one Jyoti Prakash, he became sad and went for a faraway location, far away from her. Accused also claims that owing to the COVID-19 pandemic’s Lockdown, he will be unable to work. He was obliged to return home after learning that an FIR had been filed against him and that he had been declared a proclaimed offender.

Counsel for the respondent

Nand Lal Thakur, Additional Advocate General, argued against the bail, claiming that an absconder who has been designated a proclaimed offender by the Court has no legal authority to bring an application under Section 438 CrPC.

Opinion of the Amicus

Amicus Curiae Ashok Tyagi carved out a distinction in Supreme Court rulings, stating that this Court has the authority to grant anticipatory bail, even to a proclaimed felon, in unusual circumstances.

Observations

The Court, in addition to its decision, cited the following cases;

• On the situation of anticipatory bail against a proclaimed offender, see Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730; “Para 10. (…) When an accused is designated a “proclaimed offender” and is “absconding,” anticipatory bail is usually not an option. We reaffirm that a person who has been served with a warrant and is fleeing or hiding in order to evade execution of the warrant and has been labeled a proclaimed offender under Section 82 of the Code is not entitled to anticipatory bail.
• The rationale of the aforementioned case was reaffirmed in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171.
• State of Uttar Pradesh v. Dataram Singh, (2018) 3 SCC 22, “…the judge hearing the case has complete authority over whether or not to grant bail, and while that discretion is unrestricted, it must be applied prudently, humanely, and compassionately. Furthermore, bail requirements should not be so onerous that they are impossible to meet, rendering the grant of bail illusory. The potential of the accused influencing the course of the inquiry, tampering with evidence, intimidating witnesses, and fleeing justice can all be mitigated by imposing detailed and strict conditions.
•    (2020) 5 SCC 1, Sushila Aggarwal v. State (NCT of Delhi). Unusually, a Constitutional Bench concluded that the  Courts can set restrictive restrictions on the grant of bail, subject to the facts presented.

      Decision

The Court granted the bail application based on the precedent cited and the facts of the case, stating, “Pre-trial incarceration requires justification based on the heinous nature of the offense, terms of the statute’s prescribed sentence for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with a warrant.” The Court has a responsibility to strike a balance between all stakeholders and protect the victim’s, accused’s, society’s, and state’s interests. However, while ruling on bail applications, the Courts should only consider evidence that is relevant to the bail decision. The difference between the order of bail and the final decision is comparable to the difference between a drawing and a painting. Some sketches, on the other hand, are detailed and paintings are done in a few strokes.” Furthermore, the Court outlined a set of restrictions that the petitioner must follow while on bail. [State of Himachal Pradesh v. Mahender Kumar, 2020 SCC OnLine HP 2119, determined on October 26, 2020].

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