The application of anticipatory bail is maintainable even when the accused is to be declared as “Absconder”

Ukkash F | Sastra School of Law, Tamil Nadu | 14th May 2020

Balveer Singh Bundela V. State of Madhya Pradesh

FACTS OF THE CASE

The Madhya Pradesh High Court has observed that the accused who is declared as an Absconder under S.82 of Cr.P.C can also file an application for anticipatory bail.

As per the allegations, the accused has committed rape on the pretext of marriage. The state government has contested that the man was an absconder.

It was argued on the behalf of the accused that the prosecutrix is around 41-42 years of age. Therefore, at such matured stage, if two adults enter into wedlock and thereafter their domestic relationship is severed for any reason then the same does not amount to commission of offence of rape.

The learned counsel on the behalf of the state placed reliance on the case of Lavesh Vs. State (NCT Of Delhi) observed 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 82of the Code is not entitled the relief of anticipatory bail.”

ISSUE

1. Whether the application of claiming anticipatory bail by the absconder is maintainable under section 438 of Cr.P.C?

COURT’S OBSERVATION

As present set of facts are concerned from the case diary and submissions, it appears that on false promise of marriage, initially physical intimacy developed and later on both entered into wedlock but it is grievance of prosecutrix that he is already a married person. 

It was also observed by the Court that the Consensual proximity of Body and Soul cannot be used as a weapon to wreak vengeance at a later point of time when Body and Soul drift apart.

CONCLUSION

The court concluded on the merits of the case. The court noted that both the prosecutrix and the applicant were “mature” and had tried to reach to a compromise. So the anticipatory bail was granted to the accused under section 438 of Cr.P.C. 

The concept of Anticipatory bail itself is highly criticized since the concept has led the facility of a bail being made available to economic offenders as well as unscrupulous politicians. It would not be overshot to say that today ‘anticipatory bail’ tantamount is to misuse the machinery of the criminal justice system. Moreover, The anticipatory bail has a propensity to interfere with police power and authority since it paves the way for interference by the court in the statutory jurisdiction of the police. Now the precedents allow an absconder for Anticipatory bail too.