Procedure prescribed u/S 82 CrPC not followed before declaring an accused absconder. Such accused is not disentitled for availing benefit of anticipatory bail u/S 438 CrPC.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
1. The applicant has preferred this application under Section 438 of the Cr.P.C. for grant of anticipatory bail, as he apprehends his arrest in connection with Crime No.44/2015, registered at Police Station ACB, Raipur, Unit Bilaspur, for offence punishable under Section 420, 467, 468, 471, 120-B & 427 of the Indian Penal Code; Section 13(1)(d) & 13(2) of the Prevention of Corruption Act, 1988; and Section 3 of the Prevention of Damage to Public Property Act.
2. As per the prosecution case one M/s Sundrani Construction Company was awarded work of construction of Bridge over Arpa river at Koni-ManglaBilaspur Road popularly known as ‘Turkadih Bridge’. The work started in the year 2005 and was completed in 2007. During inspection of the work carried out by the said company it was found that certain piers were completely damaged. The steel liners in the piers were absent over the concrete bed which were to give support to the pillars and in absence of steel lining, the work had caused damage to the concrete to the extent of 50-60%. The liner was exposed over the river bed, but in lower part of the pier which found support at the rock below the river bed to form the base, the steel lining was completely missing.
3. It is the case of prosecution that the contractor along with officers of the Public Works Department including the applicant prepared forged document to demonstrate that the basement work has been carried out in accordance with the drawing, however, severe deviation from technical specification was made in construction, consequently the repair work had to be carried out almost equal to the cost/expenditure at the beginning. The total loss caused to the exchequer has been assessed at Rs.337.47 lacs. As against the present applicant the allegation is that he entered incorrect measurement to approve bills to the tune of Rs.17.00 lacs (approx.).
4. Shri Rakesh Pandey, learned counsel appearing for the applicant, would submit that the partners of the contractor company namely; Peetambar Das Sundrani has been granted anticipatory bail by order dated 20-9-2018 passed in MCRCA No.759 of 2017. In this case prayer for anticipatory bail of Murarilal Sundarani was dismissed, however, Murarilal Sundarani moved second anticipatory bail application bearing MCRCA No.1361 of 2018, which was allowed by the coordinate Bench of this Court vide order dated 14-11-2018. Learned counsel would further submit that the applicant was transferred from Bilaspur to Raigarh on 18-9-2007 prior to completion certificate given by some other Engineer. The applicant thereafter retired from service on 30-11-2009 on attaining the age of superannuation and is presently aged about 72 years.
5. Shri K.K. Singh, learned Govt. Advocate appearing for the State, per contra, would oppose the bail application. Learned counsel would refer to the order passed by the coordinate Bench in Vijay Dewangan v State of Chhattisgarh1 to argue that once the applicant has been declared absconding he is not entitled for anticipatory bail. He would also refer to the decisions rendered by the Supreme Court in Lavesh v State (NCT of Delhi)2 and State of Madhya Pradesh v Pradeep Sharma3.
6. Rejoining the submission, Shri Rakesh Pandey, learned counsel for the applicant, would submit that the ratio laid down by this Court in Vijay Dewangan (supra), based on the decisions rendered by the Supreme Court in Lavesh (supra) and Pradeep Sharma (supra), is to the effect that when a person is declared absconder in terms of Section 82 of the Cr.P.C. he is not entitled for anticipatory bail, however, in the case at hand, the complete order sheets of the trial Court, filed along with the additional documents, would reveal that before declaring the applicant as an absconder, procedure prescribed under Section 82 of the Cr.P.C. has not been followed, therefore, the said judgment would not apply to the facts and circumstances of the present case.
7. In Lavesh (supra) as well as in Pradeep Sharma (supra) it has been held by the Supreme Court that when a person against whom a warrant has been issued 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 Cr.P.C., he is not entitled the relief of anticipatory bail.
8. Section 82 of the Cr.P.C. provides that if any Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself to avoid execution of warrant, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. The provision also prescribes the procedure for publication of proclamation. In sub-section (4) of Section 82 it is provided that if such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
9. In the case at hand, the applicant along with co-accused P.S. Chandel, Murarilal (already released on anticipatory bail by this Court), Narayan Das & Sunil Sundrani have been declared absconding on 3-4-2018 & 17-4-2018. These two order sheets of the trial Court are reproduced hereunder for ready reference :
10. A plain reading of the above two order sheets of the trial Court would manifest that before declaring the applicant as an absconder and not even a proclaimed absconder as Section 82 provides for, the procedure prescribed thereunder has not been followed. In these two order sheets there is no direction for issuance of a proclamation as contemplated under sub-section (1) of Section 82 nor a declaration to the said effect, as contemplated in sub-section (4), has been made after expiry of the period for which the proclamation was issued. It is, thus, abundantly clear that the declaration of the applicant as an absconder is not in terms of Section 82 of the Cr.P.C., but it is by way of a mechanical exercise without following the procedure. Relevant part of the order sheet of the trial Court only says that since the warrant issued by the Court has not been executed it appears the applicant is absconding or concealing himself, therefore, he is declared as an absconder. In absence of issuance of proclamation such declaration of a person as an absconder would not debar him from applying and availing the benefit of anticipatory bail, if he is otherwise entitled for it on merits.
11. Reverting back to the merits of the matter, the partners of the construction company, who are more responsible for carrying out the construction work, have already been released on anticipatory bail. More importantly Murarilal Sundarani has been granted anticipatory bail on 14-11-2018, in his second attempt, after he was declared absconder by the trial Court along with the applicant on 3-4-2018 & 17-4-2018. The applicant is a retired Government servant, presently aged about 72 years, therefore, considering all relevant aspects of the matter, this Court is inclined to release the applicant on anticipatory bail.
12. Accordingly, the application is allowed and it is directed that in the event of arrest of the applicant, he shall be released on anticipatory bail on his executing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one surety in the like sum to the satisfaction of the arresting officer with the following conditions:-
(a) he shall make himself available for interrogation by a police officer as and when required;
(b) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
(c) he shall not influence the witnesses during pendency of the trial.