STATE OF HARYANAversusDHARAMRAJ

                  [2023] 11 S.C.R. 705 : 2023 INSC 784



                             CASE DETAILS

                          STATE OF HARYANA
                                       v.
                               DHARAMRAJ
                    (Criminal Appeal No. 2635 of 2023)
                             AUGUST 29, 2023
    [AHSANUDDIN AMANULLAH AND S.V.N. BHATTI, JJ.]

                               HEADNOTES
      Issue for consideration: In instant appeal, the State seeks cancellation
of anticipatory bail granted to the sole respondent by the Single Judge of the
High Court.
      Code of Criminal Procedure, 1973 – Section 438 – Pre arrest bail – FIR
u/ss. 147, 148, 149, 323, 325, 341, 342 and 427 IPC with additional charges
u/ss. 186, 353 and 364 against the respondent – Grant of anticipatory bail
to the respondent by the High Court – Cancellation of:
       Held: Much like bail, grant of anticipatory bail is to be exercised with
judicial discretion – Each case turns on its own facts and merits – On facts,
respondent’s application u/s. 438 should not have been entertained, as he was
a proclaimed offender – Respondent without first successfully assailing the
order declaring him as a proclaimed offender, could not have proceeded to
seek anticipatory bail – Furthermore, it was not proper for the High Court to
have granted anticipatory bail – Declaration of proclaimed offender subsisting
on the date of the impugned order, it cannot be accepted that the respondent
was entitled to ‘reform and course correct’– Though in an exceptional and rare
case, this Court or the High Courts can consider a plea seeking anticipatory
bail, despite the applicant being a proclaimed offender, however, no exceptional
situation arises in the instant case – Impugned order granting anticipatory bail
to the respondent set aside.[Paras 12, 16 and 17]

       LIST OF CITATIONS AND OTHER REFERENCES

    Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 : [2002] 2
SCR 526; Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528; Prasanta
                                     705
706          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 : [2010] 12 SCR 1165;
Mahipal v. Rajesh Kumar Alias Polia (2020) 2 SCC 118 : [2019] 14 SCR 529;
Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak 2023 INSC 761 : 2023 SCC
OnLine SC 1059; Dolat Ram v. State of Haryana (1995) 1 SCC 349 : [1994] 6
Suppl. SCR 69; Kashmira Singh v. Duman Singh (1996) 4 SCC 693; X v. State
of Telangana (2018) 16 SCC 511 : [2018] 4 SCR 466; XXX v. Union Territory
of Andaman & Nicobar Islands 2023 INSC 767 : 2023 SCC OnLine SC 1062;
Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR
383; Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1 : [2020] 2 SCR
1; Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 :
[2010] 15 SCR 201; Vipan Kumar Dhir v. State of Punjab (2021) 15 SCC 518;
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; Md.
Asfak Alam v. State of Jharkhand 2023 INSC 660 2023 SCC OnLine SC 892;
Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730 : [2012] 7 SCR 469; State of
Madhya Pradesh v. Pradeep Sharma (2014) 2 SCC 171 : [2013] 12 SCR 772;
Prem Shankar Prasad v. State of Bihar 2021 SCC OnLine SC 955; Abhishek
v. State of Maharashtra (2022) 8 SCC 282 – referred to.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      Criminal Appellate Jurisdiction: Criminal Appeal No. 2635 of 2023.
     From the Judgment and Order dated 03.12.2021 of the High Court of
Punjab & Haryana at Chandigarh in CRM-M No. 49115 of 2021.
      Appearances:
     Dr. Hemant Gupta, AAG, Samar Vijay Singh, Ms. Monica Anand Kumar,
Ms. Payal Gupta, Shivang Jain, Keshav Mittal, Ms. Sabarni Som, Advs. for the
Appellant.
       JUDGMENT / ORDER OF THE SUPREME COURT
                                JUDGMENT
      AHSANUDDIN AMANULLAH, J.
      Heard learned counsel appearing for the parties.
      2. Leave granted.
      3. The present appeal filed by the State of Haryana seeks cancellation of
anticipatory bail granted to the sole respondent vide Order dated 03.12.2021
                  STATE OF HARYANA v. DHARAMRAJ                                       707


(hereinafter referred to as the “Impugned Order”) passed in CRM-M
No.49115/2021 by a learned Single Judge of the High Court of Punjab and
Haryana at Chandigarh. The respondent is accused in First Information Report
No.0239 dated 31.07.2020 at Police Station Badshahpur, Gurugram lodged under
Sections 147, 148, 149, 323, 325, 341, 342 and 427 of the Indian Penal Code,
1860 (hereinafter referred to as the “IPC”). Later, Sections 186, 353 and 364 of
the IPC were also included.
      4. Learned counsel appearing for the appellant submits that in the
background of the nature of the allegations and the materials collected as
well as the respondent having been declared a proclaimed offender1, grant
of indulgence under Section 4382 of the Code of Criminal anticipatory bail,


1 82. Proclamation for person absconding.—(1) If any Court has reason to believe
(whether after taking evidence or not) that any person against whom a warrant has
been issued by it has absconded or is concealing himself so that such warrant cannot be
executed, 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.
(2) The proclamation shall be published as follows:—
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which
such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such
person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court House;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published
in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the
proclamation was duly published on a specified day, in the manner specified in clause (i)
of sub-section (2), shall be conclusive evidence that the requirements of this section have
been complied with, and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in respect of a person
accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394,
395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45
of 1860), and 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 eff ect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the
Court under sub-section (4) as they apply to the proclamation published under sub-
section (1).
2 438. Direction for grant of bail to person apprehending arrest.— (1) Where any per-
son has reason to believe that he may be arrested on accusation of having committed
a non-bailable offence, he may apply to the High Court or the Court of Session for a
direction under this section that in the event of such arrest he shall be released on bail;
708             SUPREME COURT REPORTS                                 [2023] 11 S.C.R.


which does not serve larger public interest.


and that Court may, after taking into consideration, inter alia, the following factors,
namely:—
(i) the nature and gravity of the accusation; Procedure, 1973 (hereinafter referred to
as the “CrPC”) was erroneous and misplaced. It was submitted that there is enough
evidence to show the complicity of the appellant and further, based on this very order,
other co-accused persons have been granted the benefit of
(ii) the antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, either reject the application forthwith or issue an
interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has
not passed any interim order under this sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to an officer in- charge of a police station to
arrest, without warrant the applicant on the basis of the accusation apprehended in such
application.
(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith
cause a notice being not less than seven days notice, together with a copy of such order
to be served on the Public Prosecutor and the Superintendent of Police, with a view to
give the Public Prosecutor a reasonable opportunity of being heard when the application
shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the
time of final hearing of the application and passing of final order by the Court, if on
an application made to it by the Public Prosecutor, the Court considers such presence
necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under sub-section (1),
it may include such conditions in such directions in the light of the facts of the particular
case, as it may think fit, including—
(i) a condition that the person shall make himself available for interrogation by a police
officer as and when required;
(ii) a condition that the person 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;
(iii) a condition that the person shall not leave India without the previous permission of
the court;
(iv) such other condition as may be imposed under sub-section (3) of Section 437, as if
the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a
police station on such accusation, and is prepared either at the time of arrest or at any
time while in the custody of such officer to give bail, he shall be released on bail; and if a
Magistrate taking cognizance of such offence decides that a warrant should issue in the
first instance against that person, he shall issue a bailable warrant in conformity with the
direction of the Court under sub- section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person
                 STATE OF HARYANA v. DHARAMRAJ                                  709
                   [AHSANUDDIN AMANULLAH, J.]

     5. Per contra, the learned counsel for the respondent, supporting
the Impugned Order, submitted that the Investigating Agency has tried to
unnecessarily harass and implicate the respondent which would be clear
from various manipulations done in the record in the course of investigation.
Further, it is submitted that the State is trying to show the respondent as the
culprit only on the ground that he shares common name with one accused.
      6. Learned counsel for the State disputes that fact and submits that
the respondent is the person who has been duly identified and against him
the allegations levelled are found true, per the Investigation Agency.
     7. A foray, albeit brief, into relevant precedents is warranted. This
Court considered the factors to guide grant of bail in Ram Govind Upadhyay
v Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v Rajesh
Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v Ashis Chatterjee,
(2010) 14 SCC 496, the relevant principles 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;
      (v) character, behaviour, means, position and standing of the accused;


on accusation of having committed an offence under sub-section (3) of Section 376 or
Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code (45 of
1860).
710             SUPREME COURT REPORTS                         [2023] 11 S.C.R.


        (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.’
     8. In Mahipal v Rajesh Kumar alias Polia, (2020) 2 SCC 118, this
Court opined as under:
        ‘16. The considerations that guide the power of an appellate court in
        assessing the correctness of an order granting bail stand on a different
        footing from an assessment of an application for the cancellation of
        bail. The correctness of an order granting bail is tested on the anvil of
        whether there was an improper or arbitrary exercise of the discretion
        in the grant of bail. The 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 violations of the conditions of bail
        by a person to whom bail has been granted. …’
      9. In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak, 2023 INSC
    3
761 , this Court, in view of Dolat Ram v State of Haryana, (1995) 1 SCC
349; Kashmira Singh v Duman Singh, (1996) 4 SCC 693 and X v State
of Telangana, (2018) 16 SCC 511, held as follows:
        ‘13. It is also required to be borne in mind that when a prayer is
        made for the cancellation of grant of bail cogent and overwhelming
        circumstances must be present and bail once granted cannot be
        cancelled in a mechanical manner without considering whether any
        supervening circumstances have rendered it in conducing to allow
        fair trial. This proposition draws support from the Judgment of this
        Court in Daulat Ram and others v. State of Haryana reported in
        (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC
        693 and xxx v. State of Telangana (2018) 16 SCC 511.’




3     2023 SCC OnLine SC 1059.
                STATE OF HARYANA v. DHARAMRAJ                               711
                  [AHSANUDDIN AMANULLAH, J.]

     10. In XXX v Union Territory of Andaman & Nicobar Islands, 2023
INSC 7674, this Court noted that the principles in Prasanta Kumar Sarkar
(supra) stood reiterated in Jagjeet Singh v Ashish Mishra, (2022) 9 SCC 321.
     11. The contours of anticipatory bail have been elaborately
dealt with by 5-Judge Benches in Gurbaksh Singh Sibbia v State
of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal v State (NCT
of Delhi), (2020) 5 SCC 1. Siddharam Satlingappa Mhetre v State
of Maharashtra, (2011) 1 SCC 694 is worthy of mention in this
context, despite its partial overruling in Sushila Aggarwal (supra).
We are cognizant that liberty is not to be interfered with easily. More so,
when an order of pre- arrest bail already stands granted by the High Court.
      12. Yet, much like bail, the grant of anticipatory bail is to be exercised
with judicial discretion. The factors illustrated by this Court through its
pronouncements are illustrative, and not exhaustive. Undoubtedly, the
fate of each case turns on its own facts and merits. In Vipan Kumar Dhir
v State of Punjab, (2021) 15 SCC 518, taking note of Dolat Ram (supra)
and X v State of Telangana (supra), the Court cancelled the anticipatory
bail granted to the accused therein. Keeping all the aforesaid in mind, we
turn our attention to the facts in praesenti.
     13. Having considered the matter, this Court finds that, in the facts
and circumstances of the present case, it was not proper for the High Court
to have granted anticipatory bail to the respondent.
     14. As would be manifest from the Impugned Order, the reasoning
thereof is contained in Paragraphs 7-12. Closer perusal reveals what
weighed with the High Court:
     (a) That the maximum sentence for the offences in the First Information
     Report did not exceed 7 years.
     (b) That the possibility of the respondent influencing the investigation,
     tampering with evidence et al, could be taken care of by imposing
     stringent conditions.



4   2023 SCC Online SC 1062.
712            SUPREME COURT REPORTS                      [2023] 11 S.C.R.


       (c) That the respondent’s declaration as a proclaimed offender was
       not on account of him deliberately avoiding court.
       (d) That the respondent was a first-time offender and deserved a
       chance to ‘reform and course correct’.
      15. The logic of the High Court does not commend itself to us. The
High Court placed reliance on Arnesh Kumar v State of Bihar, (2014) 8 SCC
273 to the effect that where 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, there is to be no automatic arrest.
Having gone through the said judgment as also its most recent reiteration
in Md. Asfak Alam v State of Jharkhand, 2023 INSC 6605, we are in full
agreement with the propositions enunciated therein. However, Section 364,
IPC carries a term of imprisonment for life or rigorous imprisonment of
ten years and fine. We are a bit perplexed as to how, despite addition of
Section 364, IPC, the High Court took the view that Arnesh Kumar (supra)
would aid the respondent in his quest for pre-arrest bail.
      16. What the High Court (also) lost sight of was that the respondent
was a declared proclaimed offender. The High Court notes, at Paragraph
28, that it was not dealing with the prayer seeking quashing of the
proclamation proceedings as the same were not made part of the petition
before it. As things were, the respondent was declared a proclaimed offender
on 05.02.2021, and sought anticipatory bail from the High Court only in
October, 2021. As such, it was not correct for the High Court to brush
aside such factum, on the basis of averments alone, purporting to explain
the backdrop of such declaration by mere advertence to a similar-sounding
name, in the petition before it, as recorded at Paragraphs 9 and 10 of the
Impugned Order. The declaration of the respondent as a proclaimed offender,
and such declaration subsisting on the date of the Impugned Order, we
are unable to agree with the High Court that the respondent was entitled
to ‘reform and course correct’.




5     2023 SCC Online SC 892.
               STATE OF HARYANA v. DHARAMRAJ                            713
                 [AHSANUDDIN AMANULLAH, J.]

      16. The respondent, without first successfully assailing the order
declaring him as a proclaimed offender, could not have proceeded to
seek anticipatory bail. Looking to the factual prism, we are clear that the
respondent’s application under Section 438, CrPC should not have been
entertained, as he was a proclaimed offender. We may note that in Lavesh
v State (NCT of Delhi), (2012) 8 SCC 730, this Court was categoric against
grant of anticipatory bail to a proclaimed offender. In the same vein,
following Lavesh (supra) is the decision in State of Madhya Pradesh v
Pradeep Sharma, (2014) 2 SCC 171, where this Court emphasised that a
proclaimed offender would not be entitled to anticipatory bail. Of course,
in an exceptional and rare case, this Court or the High Courts can consider
a plea seeking anticipatory bail, despite the applicant being a proclaimed
offender, given that the Supreme Court and High Courts are Constitutional
Courts. However, no exceptional situation arises in the case at hand.
Following Pradeep Sharma (supra), in Prem Shankar Prasad v State of
Bihar, 2021 SCC OnLine SC 955, this Court was unequivocal that the High
Court therein erred in granting anticipatory bail ignoring proceedings under
Sections 82 and 83, CrPC. In Abhishek v State of Maharashtra, (2022) 8
SCC 282, this Court concluded:
     ‘68. As regards the implication of proclamation having been issued
     against the appellant, we have no hesitation in making it clear that
     any person, who is declared as an “absconder” and remains out
     of reach of the investigating agency and thereby stands directly at
     conflict with law, ordinarily, deserves no concession or indulgence. By
     way of reference, we may observe that in relation to the indulgence
     of pre-arrest bail in terms of Section 438 CrPC, this Court has
     repeatedly said that when an accused is absconding and is declared
     as proclaimed offender, there is no question of giving him the benefit
     of Section 438 CrPC. [For example, Prem Shankar Prasad v. State
     of Bihar, (2022) 14 SCC 529: 2021 SCC OnLine SC 955] …’
     17. Accordingly, in view of the discussions made hereinabove, the
Impugned Order granting anticipatory bail to the respondent is set aside.
The respondent shall surrender before the Court concerned within four
714            SUPREME COURT REPORTS                          [2023] 11 S.C.R.


weeks from today and may seek regular bail which will be considered on
its own merits without being prejudiced by the present judgment.
      18. The appeal stands allowed in the aforesaid terms. Pending
applications stand consigned to records. As far as the submission of the
State is that the Impugned Order is the basis for co-accused to obtain
anticipatory bail, it is for the State to take steps, if so advised, in accordance
with law, in that behalf.


Headnotes prepared by:                                              Appeal allowed.
Nidhi Jain