It is certainly worth paying attention that as recently as on February 1, 2022, the Punjab and Haryana High Court in a refreshing, rational, robust and remarkable judgment titled Mamta Giri Vs State of UT Chandigarh in CRM-M-3052-2022 has most commendably, cogently and convincingly held that if the offence committed is punishable with less than seven years, is a bailable, non-heinous offence and the accused who is a first-time offender, has established a fair ground for not being present in court, to the court’s satisfaction, then just the fact that accused has been a proclaimed offender will not bar him/her from availing the benefit of anticipatory bail under Section 438 of CrPC. The single Judge Bench of Justice Anoop Chitkara is absolutely right in holding so. No denying.
To start with, the single Judge Bench of Punjab and Haryana High Court comprising of Justice Anoop Chitkara first and foremost puts forth in para 1 that, “The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 438 Cr.PC seeking anticipatory bail.”
On the one hand, the Bench states in para 2 that, “Ld. Counsel for the petitioner contends that all the offences are bailable.”
On the other hand, the Bench then states in para 3 that, “The contention on behalf of the State is that given the judicial pronouncements, anticipatory bail cannot be granted to a proclaimed offender.”
Of course, the Bench then mentions in para 4 that, “The petitioner is a woman, she is a first offender, and all the offences are bailable.”
As we see, the Bench then enunciates in para 5 that, “The explanation offered by the petitioner is mentioned in paragraphs 5 to 10 of the petition, which are extracted as follows:“5. That the reason of the non- appearance of the accused had occurred because the accused was not aware of the said date due to the miscommunication with the then counsel of the accused and when it came to the knowledge of the accused it was impossible for her to appear in the court room as the accused was in Bikaner, Rajasthan as she had some family problems to attend to.
- That on the next date i.e. 15.11.2019 neither the petitioner nor her surety had the knowledge regarding the NBW against her nor about the date the matter was fixed for hence the non-appearance. The order has been annexed herewith as Annexure P4.
- That on 25.02.2020 too the Petitioner, still had no idea that the NBW were issued against her. The copy of the order has been annexed herewith as Annexure P5.
- That on dates 09.06.2020, 10.08.2020, 02.12.2020 & 22.04.2021 due to the COVID-19 Pandemic and the orders of Hon’ble Punjab & Haryana High Court the Courts were not functioning hence the appearance of the accused/applicant would have been impossible. The annexures of the above mentioned orders have been annexed herewith as Annexure P6, Annexure P7, Annexure P8 & Annexure P9 respectively.
- That on the last i.e. 8.09.2021 the applicant though of no knowledge about the station the applicant was also down with fever and hence traveling for 600Kms from Bikaner, Rajasthan to Chandigarh in fever would have been a mammoth task. The copy of the order has been annexed herewith as annexure Annexure P10.
- That it was after this date i.e. 8.09.2021 the accused when enquired about her case got information and the seriousness of the case and hence the bail application is being filed by the Accused/applicant.””
Truth be told, the Bench then discloses in para 6 that, “The petitioner explains that she did not know the date fixed for the case, not because of any disregard to law but due to lack of communication from counsel and later on due to confusion of pandemic.” Needless to say, the Bench then states in para 7 that, “The petitioner has offered a satisfactory explanation which led to the passing of orders under section 82 of CrPC and her being declared a proclaimed offender.” While citing the relevant case law, the Bench then puts forth in para 8 that, “In Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, (Para 10), Hon’ble Supreme Court holds,</code></pre></li>
[10]. … 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 is not entitled the relief of anticipatory bail.”
Most significantly, what forms the real crux of this judgment is then encapsulated in para 17 wherein it is held clearly, cogently and convincingly that, “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.”
No less significant is what is then laid down in para 18 wherein it is pointed out that, “The first chapter, ‘For a house we never built on a plot we did not own’ in the book “Anita got bail” by Arun Shourie, HarperCollins, (2018), cautions the courts by highlighting the ground realities leading to the proclamation orders. The offences are bailable, and the accused is a woman for whom the legislature has made special provisions. Sending the woman to custody before giving her bail would neither put the judiciary in high esteem nor overhaul the system.”
Be it noted, the Bench then makes it clear in para 19 that, “In the present case, the maximum sentence imposable for the offences mentioned in FIR does not exceed seven years. Thus, directions passed in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, (Para 13), apply to this petition, wherein Hon’ble Supreme Court directed all the State Governments to instruct its police officers not to arrest the accused automatically when the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”
No doubt, the Bench then deems it fit to succinctly state in para 20 that, “In the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for anticipatory bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in Chapter XXXIII of CrPC, 1973.”
In view of the aforesaid, the Bench then holds in para 22 that, “Given above, In the event of arrest, the petitioner shall be released on bail in the case mentioned above, subject to his furnishing a personal bond of Rs. Ten Thousand only (INR 10,000/-), and furnishing one surety for Rs. Twenty-Five thousand only (INR 25,000/-), to the satisfaction of the concerned Investigator. Before accepting the sureties, the concerned officer must satisfy that if the accused fails to appear in Court, then such surety is capable of producing the petitioner before the Court.”
In addition, the Bench then also specifies in para 23 that, “In the alternative, the petitioner may furnish a personal bond of Rs. Ten Thousand only (INR 10,000/-), and hand over to the attesting officer, a fixed deposit(s) for Rs. Ten Thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district. Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the well-established and stable private banks, with the clause of automatic renewal of principal, and the interest reverting to the linked account. The arresting officer shall give a time of ten working days to enable the accused to prepare a fixed deposit. Such a fixed deposit need not necessarily be made from the applicant’s account. If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned court. If made online, its printout, countersigned by the accused, shall be given; and the depositor shall get the online liquidation disabled. The applicant shall inform the concerned branch of the bank at the earliest that it has been tendered as surety. Such information be sent either by e-mail or by post/courier about the fixed deposit, whether made on paper or in any other mode, along with its number and FIR number. After that, the applicant shall hand over such proof and endorsement to the concerned police station. Such officer shall have a lien over the deposit until discharged by substitution, and in case any court takes cognizance, then such court, upon which the investigator shall hand over the deposit to such court, which shall have a lien over it up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be. If any, subject to the proceedings under S. 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.”
For clarity’s sake, the Bench then clarifies in para 24 that, “It shall be the total discretion of the applicant to choose between surety bonds and fixed deposits. It shall also be open for the applicant to apply for substitution of fixed deposit with surety bonds and vice-versa.”
Furthermore, the Bench then envisages in para 25 that, “On the reverse page of personal bonds, the attesting officer shall mention the permanent address of the petitioner along with the phone number linked with the AADHAR card, the other phone numbers (if any), and e-mail (if any). In case of any change in the above particulars, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change to the concerned Police Station and the concerned Court.”
What’s more, the Bench then directs in para 26 that, “The petitioner to also execute a bond for attendance in the concerned Court(s), as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order.”
Going ahead, the Bench also maintained in para 27 that, “The bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the Cr.P.C.”
Going forward, the Bench then stipulates in para 28 that, “Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order in any language that the petitioner understands.”
In sum, this extremely laudable, learned, landmark and latest judgment makes it absolutely clear that compromise deed must state reasons for settlement for quashing of FIR and criminal proceedings. It goes without saying that all the lower courts must abide to what has been laid down so elegantly, explicitly and eloquently by the Punjab and Haryana High Court in this leading case. There can be just no denying or disputing it!