Srikant Upadhyay & Ors. v. State of Bihar & Anr.

The appellants were named as accused in FIR No. 79 of 2020 registered at Govindganj Police Station, District East Champaran, Bihar, under Sections 341, 323, 354, 354(B), 379, 504, 506, and 149 of the Indian Penal Code, 1860, along with Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act, 1999.

Following the submission of the chargesheet, the learned Trial Magistrate took cognizance and issued summons to the accused persons. The appellants failed to appear. Subsequently, the Magistrate issued bailable warrants on multiple occasions. While certain co-accused appeared and secured regular bail, the appellants systematically avoided entering appearance. On August 23, 2022, the appellants moved an application styled as a 'bail-cum-surrender application' through counsel before the Magistrate, but swiftly withdrew it fearing immediate remand to judicial custody.

Due to chronic, willful evasion by the appellants, the Trial Court issued Non-Bailable Warrants (NBWs) of arrest on November 3, 2022. Facing arrest, the appellants approached the High Court of Judicature at Patna by filing Criminal Miscellaneous Petition No. 67668 of 2022 in November 2022, praying for anticipatory bail under Section 438 CrPC. However, no order granting interim protection was passed by the High Court.

In the absence of any stay or interim protection order, the learned Magistrate proceeded with coercive statutory measures under the Code of Criminal Procedure: issuing a proclamation under Section 82 CrPC on January 4, 2023, declaring the appellants absconders, followed by an order for attachment of property under Section 83 CrPC on March 15, 2023. When the anticipatory bail application eventually came up for final hearing before the High Court on April 4, 2023, the High Court dismissed the application in light of the Section 82 proclamation. The appellants appealed to the Supreme Court of India.

1. Trial Court Powers vs Pending Anticipatory Bail: Does the mere filing or pendency of an anticipatory bail application before the High Court or Sessions Court operate as an automatic stay or legal bar preventing the Trial Court from issuing Non-Bailable Warrants or initiating proclamation proceedings under Section 82 CrPC (Section 84 BNSS 2023)?
2. Maintainability of Section 438 CrPC After Section 82 Proclamation: Can an accused person who is evading arrest and against whom a proclamation under Section 82 CrPC has been issued seek or be granted the extraordinary discretionary relief of anticipatory bail under Section 438 CrPC (Section 482 BNSS 2023)?
3. Legal Status of Filing Bail Through an Advocate: Does the filing of an anticipatory bail petition or a 'bail-cum-surrender application' through legal counsel constitute a physical 'appearance' or 'surrender' before the criminal court so as to prevent the initiation of absconder proceedings?
4. Interplay with Section 438(1) CrPC Proviso: When an anticipatory bail plea is adjourned without interim protection, does the investigating agency or the criminal court forfeit its statutory powers to execute warrants and compel the attendance of the accused?

A. Anticipatory Bail Is an Extraordinary Remedy, Not a Rule

The Supreme Court unequivocally declared that while post-arrest regular bail under Section 439 CrPC operates on the cardinal axiom that "bail is the rule and jail the exception", that maxim cannot be imported into anticipatory bail jurisprudence. Pre-arrest bail under Section 438 CrPC (Section 482 BNSS 2023) is an extraordinary judicial power intended to protect innocent citizens against mala fide persecution and unwarranted incarceration. It cannot, by any stretch of legal reasoning, be claimed as a matter of routine course or entitlement.

B. No Bar on Trial Court to Issue Section 82/83 Process During Bail Pendency

The Court held that the mere pendency of an anticipatory bail application before the High Court or Sessions Court does not impose any statutory freeze on the powers of the Trial Court. Under the Proviso to Section 438(1) CrPC, if the superior court does not pass an interim order granting protection against arrest, the police retain full statutory liberty to arrest the accused without a warrant. Reasoning by necessary analogy, the Supreme Court held:

"Pending the application for anticipatory bail, in the absence of an interim protection, if a police officer can arrest the accused concerned, how can it be contended that the court which issued summons on account of non-obedience to comply with its order for appearance and then issuing warrant of arrest cannot proceed further in terms of the provisions under Section 82, Cr.P.C., merely because of the pendency of an application for anticipatory bail? In the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr.P.C., in accordance with law."

C. Proclaimed Absconders Disentitled to Section 438 Pre-Arrest Protection

Reaffirming the authoritative line of precedents in Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730, State of Madhya Pradesh v. Pradeep Sharma (2014) 2 SCC 171, and Prem Shankar Prasad v. State of Bihar (2022) 14 SCC 516, the bench held that when an accused is intentionally evading arrest or concealing himself, resulting in the issuance of Non-Bailable Warrants and a proclamation under Section 82 CrPC, they forfeit the right to seek pre-arrest bail. A person who shows consistent defiance towards lawful judicial process cannot simultaneously invoke the equitable, extraordinary jurisdiction of the court for discretionary protection.

D. The Exception: Narrow Window in Extreme and Exceptional Cases

The Court clarified that the issuance of a Section 82 proclamation does not result in an absolute legislative divestment of judicial jurisdiction. High Courts and Sessions Courts retain the residual power to grant pre-arrest protection, but such power can only be exercised in extreme and exceptional cases where the proclamation was obtained through blatant fraud, gross illegality, or where severe abuse of the legal process is demonstrated on the face of the record.

E. Appearance Through Legal Counsel Does Not Purge Abscondence

The bench explicitly rejected the contention that filing an anticipatory bail petition or a 'bail-cum-surrender application' through an advocate constitutes appearance before the court. Physical submission to the custody or process of the court is indispensable. Filing legal paperwork while remaining in hiding does not purge the status of an absconder under Section 82 CrPC.

Justice C.T. Ravikumar exhaustively examined the evolution of the absconder disqualification rule across five decades of Supreme Court jurisprudence:

• Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730: The two-judge bench established that an accused declared an absconder under Section 82 CrPC is normally not entitled to anticipatory bail. Srikant Upadhyay elevated this principle from an advisory norm to a robust legal doctrine, holding that evading process creates a statutory impediment against pre-arrest relief.
• State of M.P. v. Pradeep Sharma (2014) 2 SCC 171: The Court ruled that if an accused is absconding and not cooperating with the investigation, granting anticipatory bail is an improper exercise of discretion. In Srikant Upadhyay, the Court affirmed that the High Court in the impugned order had rightly applied Pradeep Sharma.
• Prem Shankar Prasad v. State of Bihar (2022) 14 SCC 516: The Supreme Court set aside an anticipatory bail order granted by the High Court where proceedings under Sections 82 and 83 CrPC were pending against the respondent. The Court in Srikant Upadhyay harmonized these three landmark rulings into an integrated framework.
• Shrenik Jayantilal Jain v. State of Maharashtra (2014 SCC OnLine Bom 549): The Supreme Court endorsed the Bombay High Court's ruling that courts are not obliged to pass an interim order of protection merely because an anticipatory bail application has been entertained, and investigative agencies remain empowered to arrest the accused during pendency.

With the commencement of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 on July 1, 2024, the legal principles articulated in Srikant Upadhyay seamlessly govern corresponding provisions under the new criminal procedural regime: