Absconding Accused Not Entitled To Anticipatory Bail On Sole Ground Of Co-Accused’ Acquittal

Leave Granted.

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.

3. Before adverting to the rival submissions canvassed on either

side, we deem it appropriate to refer to the allegations contained

in the FIRs lodged in the present case and the consequential

proceedings that have followed their institution.

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:

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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,

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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.

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5. The post-mortem report of deceased Bablu Chaudhary, dated

03.06.2017, stated that the cause of death of the deceased was

shock and haemorrhage as a result of firearm injuries, which

were sufficient to cause death in the ordinary course of nature.

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.

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.

6

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.

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.

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

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threatened to kill him if he pursued objections to the Accused’s

bail application before the Court.

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.

12. Aggrieved by the said dismissal, the Accused moved his first

anticipatory bail application, being MCRC No.4823 of 2020, in

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connection with the Subject FIR before the High Court, which

came to be dismissed by order dated 11.02.2020. The High Court,

apart from noting that the Accused was named in the Subject FIR

and was a member of the mob that killed the deceased Bablu

Chaudhary and attempted to kill Shailendra alias Pintu, also

recorded that the Accused was a proclaimed offender and was

absconding since the registration of the Subject FIR, pursuant to

which a reward had also been announced for his arrest.

13. Aggrieved thereby, the Accused filed second anticipatory bail

application before the High Court which was also dismissed vide

order dated 19.01.2021, however, the said order is not available

on record.

14. It may be pertinent to mention here that the trial in both the

Subject FIR and the Cross FIR has concluded.

15. The 22nd Additional Sessions Judge and Special Judge (MP/MLA),

Indore, vide judgment dated 24.06.2023 in SC PPS No.20/2019,

acquitted all the named accused in the Subject FIR, other than

the absconding Accused, of all the charges, holding that the

prosecution had completely failed to prove that the deceased

9

Bablu Chaudhary and the injured Shailendra alias Pintu were

actually hit by the bullets fired by the named accused persons in

the Subject FIR. The trial Court also rejected the prosecution’s

case that the named accused formed an unlawful assembly to

commit riot and voluntary wrongful obstruction while being

armed with deadly weapons. On the contrary, the Court recorded

a finding to the effect that the original complainant’s party were

the aggressors in the incident that took place on 02.06.2017. The

judgment further noted that the Accused had been absconding

from the inception of the case and investigation against him

under Section 173(8) of the CrPC had been kept pending.

Per contra, on the same date, the 22nd Additional Sessions

Judge and Special Judge (MP/MLA), Indore in SC PPS

No.23/2018 arising from the Cross FIR, convicted the original

complainant, alongside five other named accused therein, under

Section 307 read with Section 149 of the IPC (two counts) as well

as under Section 148 of the IPC. Further, they were also convicted

under Section 25(1-b)(a) and Section 27 of Arms Act, 1959.

10

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.

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.

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.

19. While arriving at the findings in the Impugned Order, the High

Court has also relied upon the excerpts of the judgment of the

trial Court acquitting the co-accused, wherein observations have

also been made with regard to the Accused.

11

20. Aggrieved, the original complainant preferred the present appeal

before this Court.

SUBMISSIONS ON BEHALF OF THE APPELLANT

21. The learned Counsel for the Appellant/original complainant

vehemently assailed the grant of anticipatory bail to the Accused,

particularly when the Accused had been long absconding and not

cooperating with the investigating agency, exhibiting a clear intent

to evade the due course of law. Further, it was submitted that the

Accused was proceeded against under Section 82 of the CrPC and

was declared a proclaimed offender, which was also acknowledged

by the High Court vide its order dated 11.02.2020. It was

contended that the High Court mechanically granted anticipatory

bail to the Accused when his previous bail applications had been

dismissed on the same grounds and he had remained a fugitive

throughout the course of trial of the co-accused. Reliance was

placed on the case of Lavesh vs. State (NCT of Delhi), reported in

(2012) 8 SCC 730, in this regard, to argue that an absconder is not

entitled to the relief of anticipatory bail.

12

22. The learned Counsel further submitted that the subsequent

acquittal of the co-accused cannot be a consideration for

extending the benefit of doubt to the Accused and granting him

anticipatory bail, when the Accused had a distinct role in the

alleged offences, which necessitated a custodial interrogation. It

was argued that the principle of parity was wrongly and blindly

applied, when the trial Court’s findings in favor of the co-accused

were based on evidence specific to their involvement, which have

no bearing on the Accused herein. It was further submitted that

especially when the Accused’s previous anticipatory bail

applications were dismissed and there was no actual change in

circumstance, the acquittal of the co-accused could not be

deemed as “change in circumstance” for grant of bail.

23. The learned Counsel for the Appellant further laid emphasis on

the serious criminal antecedents of the Accused being Crime

No.07/2010, Crime No.155/2017, Crime No.217/2017, as well

as the Subject FIR. Further, the learned Counsel also pointed out

the significant risk to public safety in light of these antecedents

as well as the likelihood of witness tampering. It was strongly

argued that the High Court failed to consider the FIR

13

No.272/2019, that was lodged by the injured victim namely

Shailendra alias Pintu (PW-2), alleging the Accused’s attempt at

threatening him from assisting the investigation in the ongoing

trial and from raising objections to the Accused’s bail application.

24. It was thus contended that the grant of anticipatory bail to the

Accused in such a perfunctory manner, in complete defiance of

settled principles and guidelines, can have serious implications

for the impending trial and amounts to manipulation of the legal

system. The learned Counsel relied upon the landmark case of

Sushila Aggarwal vs. State (NCT of Delhi), reported in (2020)

5 SCC 1, to highlight the considerations that ought to be weighed

by the Court before grant of anticipatory bail, and stated that

none of those considerations were duly taken into account in the

present case by the High Court.

SUBMISSIONS ON BEHALF OF THE RESPONDENT STATE

25. The learned Counsel appearing for the Respondent State by

referring has submitted that the Accused was absconding for

almost six and a half years and there was a reward announced

14

by the Superintendent of Police for his arrest. In such

circumstances, he is not entitled for seeking relief of anticipatory

bail.

26. The learned Counsel appearing for the Respondent State further

submitted that while being absconding, the Accused threatened

the main witness Shailendra alias Pintu who was allegedly

injured by the gunshots of the Accused, that if he objected to the

bail application of the Accused, he and his family members will

be killed. In this regard, FIR No. 272/2019 has been lodged by

Shailendra alias Pintu against the Accused.

27. The learned Counsel appearing for the Respondent State further

pointed out that there are four criminal antecedents against the

Accused, including the one mentioned hereinabove. It is

submitted that the Accused is a person who takes law casually.

28. The learned Counsel appearing for the Respondent State with

reference to the present case submits that the Complainant has

already filed Criminal Appeal No. 10887/2023 under Section 372

of the CrPC before the High Court against the judgement of

acquittal of the co-accused persons.

15

29. The learned Counsel for the State has also submitted that this is

a case where one person has lost his life and one has sustained

injuries, so also, the witnesses including the injured eye-witness

Shailendra alias Pintu has fully supported the case of the

prosecution.

30. Thus, in sum and substance, the learned Counsel for the

Respondent State supports the Appellant and prays that the

order of the High Court be set aside, wherein anticipatory bail

was granted to the Accused. However, it is not in dispute that the

State has not filed any SLP challenging the Impugned Order.

We fail to understand why the Respondent State, for the

reasons best known to them, have not filed an appeal before this

Court against the Impugned Order, when in fact, they have fully

supported the Appellant/original complainant’s case for setting

aside the anticipatory bail granted to the Accused, by way of their

counter affidavit.

SUBMISSIONS ON BEHALF OF THE ACCUSED

31. The learned Counsel appearing on behalf of the Accused firstly

challenged the contention that the Accused was declared a

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proclaimed offender under Section 82 of the CrPC, stating that

no such proclamation was ever issued against him. It was further

submitted that even the trial Court’s judgment dated 24.06.2023

acquitting the co-accused persons in connection with the Subject

FIR does not record any finding that the proceedings under

Section 82 of the CrPC were lawfully completed, nor does it

declare the Accused as a proclaimed offender. It was stated that

the said judgment, at best, contains a passing reference to steps

allegedly taken by the prosecution, which never culminated into

a valid proclamation as required under law. In light of the said

fact, it was argued that mere non-appearance cannot be equated

with absconding in the eyes of law.

32. The learned Counsel further contended that the trial Court’s

judgment dated 24.06.2023 recorded a clear finding that the

prosecution failed to establish that the bullet fired by the

absconding Accused hit the injured Shailendra alias Pintu. On

the contrary, it was contended that the trial Court vide judgment

dated 24.06.2023 in SC PPS No.23/2018 arising from the Cross

FIR, convicted the original complainant under Section 307 read

with Section 149 of the IPC (two counts) as well as under Section

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148 of the IPC. In view of the said conviction, it was argued that

the Appellant approached this Court with unclean hands and

selectively disclosed material facts only in respect of the Accused

while consciously suppressing his own role in the offence and his

consequent conviction.

33. It was also stated that the original complainant has eleven

criminal antecedents of a similar nature, which were also

suppressed by him. Thus, the learned Counsel vehemently

submitted that the original complainant himself lacked bona

fides and his entire case was founded entirely on stale and prebail

allegations dating back several years without pointing to a

single instance of post-bail misconduct on part of the Accused.

The learned Counsel contended that since the grant of regular

bail by the trial Court vide order dated 25.01.2024, not a single

complaint or report has been lodged against the Accused alleging

misuse of liberty or interference with the due course of justice. In

the said facts and circumstances, the learned Counsel submitted

that the present appeal was driven by nothing but personal

vendetta and deserved to be dismissed, being devoid of any merit.

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ANALYSIS

34. We have heard the learned counsel appearing on behalf of the

parties and have perused the relevant material placed on record.

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?

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

19

bail under Section 438 of the CrPC vests only with the Court of

Sessions or the High Court.

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;

20

(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.”

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. Consistent with the judgment in Gurbaksh Singh Sibbia

v. State of Punjab, when a person complains of apprehension of

arrest and approaches for order, the application should be based

on concrete facts (and not vague or general allegations) relatable

to one or other specific offence. The application seeking

21

anticipatory bail should contain bare essential facts relating to

the offence, and why the applicant reasonably apprehends

arrest, as well as his side of the story. These are essential for the

court which should consider his application, to evaluate the

threat or apprehension, its gravity or seriousness and the

appropriateness of any condition that may have to be imposed.

It is not essential that an application should be moved only after

an FIR is filed; it can be moved earlier, so long as the facts are

clear and there is reasonable basis for apprehending arrest.

xxx

92.3. Nothing in Section 438 CrPC, compels or obliges courts to

impose conditions limiting relief in terms of time, or upon filing of

FIR, or recording of statement of any witness, by the police,

during investigation or inquiry, etc. While considering an

application (for grant of anticipatory bail) the court has to consider

the nature of the offence, the role of the person, the likelihood of

his influencing the course of investigation, or tampering with

evidence (including intimidating witnesses), likelihood of fleeing

justice (such as leaving the country), etc. The courts would be

justified — and ought to impose conditions spelt out in Section

437(3) CrPC [by virtue of Section 438(2)]. The need to impose other

restrictive conditions, would have to be judged on a case-by-case

basis, and depending upon the materials produced by the State

or the investigating agency. Such special or other restrictive

conditions may be imposed if the case or cases warrant, but

should not be imposed in a routine manner, in all cases. Likewise,

conditions which limit the grant of anticipatory bail may be

granted, if they are required in the facts of any case or cases;

however, such limiting conditions may not be invariably imposed.

92.4. Courts ought to be generally guided by considerations such

as the nature and gravity of the offences, the role attributed to

the applicant, and the facts of the case, while considering

whether to grant anticipatory bail, or refuse it. Whether to grant

or not is a matter of discretion; equally whether and if so, what

kind of special conditions are to be imposed (or not imposed) are

dependent on facts of the case, and subject to the discretion of

the court.

xxx

92.6. An order of anticipatory bail should not be “blanket” in the

sense that it should not enable the accused to commit further

offences and claim relief of indefinite protection from arrest. It

should be confined to the offence or incident, for which

apprehension of arrest is sought, in relation to a specific incident.

22

It cannot operate in respect of a future incident that involves

commission of an offence.

xxx

92.9. It is open to the police or the investigating agency to move

the court concerned, which grants anticipatory bail, for a direction

under Section 439(2) to arrest the accused, in the event of

violation of any term, such as absconding, non-cooperating

during investigation, evasion, intimidation or inducement to

witnesses with a view to influence outcome of the investigation or

trial, etc.”

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,

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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.

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.

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:

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“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.”

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

25

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.

46. Further, as per the documents on record placed before us, the

Accused also has criminal antecedents, i.e., Crime No.07/2010,

217/2017, 155/2017, and 217/2019, which cannot be brushed

aside lightly, as they have an extreme adverse impact on society.

Even in the order dated 27.08.2021, the 22nd Additional Sessions

Judge and Special Judge (MP and MLA), Bhopal provided security

to the injured victim Shailendra alias Pintu due to the threat by

the Accused. The firearms also have not been recovered from the

Accused or seized by the police till date.

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

26

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.

48. In this regard, the full Bench of the Kerala High Court, in the case

of Moosa v. Sub Inspector of Police, reported in 2005 SCC

OnLine Ker 605, had occasion to discuss the question of whether

an absconding accused can seek quashing of the criminal

proceedings pending against him, when the co-accused have

been finally acquitted by the trial Court. The full Bench held this

as impermissible on the grounds that in a trial against the coaccused,

the prosecution is neither called upon nor expected to

adduce evidence against the absconding accused, thus, the

acquittal, or conviction for that matter, of the co-accused cannot

have any bearing on the absconding accused. The relevant

portion of Moosa (supra) is reproduced hereinbelow:

“53. […] In the light of the above discussions, we may summarise

the legal position as follows:

xxx

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(v) In a trial against the co-accused the prosecution is not called

upon, nor is it expected to adduce evidence against the

absconding co-accused. In such trial the prosecution cannot be

held to have the opportunity or obligation to adduce all evidence

against the absconding co-accused. The fact that the testimony of

a witness was not accepted or acted upon in the trial against the

co-accused is no reason to assume that he shall not lender

incriminating evidence or that his evidence will not be accepted

in such later trial.

xxx

(viii) While considering the prayer for invocation of the

extraordinary inherent jurisdiction to serve the ends of justice, it

is perfectly permissible for the court to consider the bona fides the

cleanliness of the hands of the seeker. If he is a fugitive from

justice having absconded or jumped bail without sufficient reason

or having waited for manipulation of hostility of witnesses, such

improper conduct would certainly be a justifiable reason for the

court to refuse to invoke its powers under S. 482 of the Code of

Criminal Procedure.

(ix) The fact that the co-accused have secured acquittal in the trial

against them in the absence of absconding co-accused cannot by

itself be reckoned as a relevant circumstance while considering

invocation of the powers under S. 482 of the Code of Criminal

Procedure. […]”

(Emphasis supplied)

49. Although the aforesaid case dealt with quashing of the

proceedings entirely, the rationale applied therein can be

instrumental in the present case, for the reason that the High

Court, by way of the Impugned Order, granted anticipatory bail

to the Accused solely based on the fact that the prosecution failed

to produce any cogent evidence proving the involvement of the

accused persons named in the Subject FIR, in the alleged offence.

The High Court also took note of certain findings recorded in

favour of the Accused by the trial Court in its judgment dated

24.06.2023 acquitting the co-accused. However, the said

consideration is completely erroneous and perverse in an

anticipatory bail application, especially when the Accused had

been absconding for about 6 years and made a mockery of the

judicial process. In view of such circumstances, the Accused

cannot be permitted to encash on the acquittal of the co-accused

persons. Further, the High Court failed to consider that any

finding recorded by the trial Court either against or in favour of

the absconding Accused is wholly irrelevant for the purpose of

deciding the bail application as the prosecution was not required

to produce any evidence against the absconding Accused during

the trial of the co-accused persons, in view of the judgment in

Moosa (supra).

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.

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)

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.

31

53. The present appeal stands allowed in the aforesaid terms.

54. Pending application (s), if any, shall stand disposed of.

.………………….,J.

(J.B. PARDIWALA)

………………….,J.

(VIJAY BISHNOI)

NEW DELHI.

DATED: 13th FEBRUARY, 2026.