Prem Shankar Prasad vs The State Of Bihar on 21 October, 2021


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Supreme Court of India

Prem Shankar Prasad vs The State Of Bihar on 21 October, 2021

Author: M.R. Shah

Bench: M.R. Shah, A.S. Bopanna

                                                                           REPORTABLE

                                    IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL APPEAL NO.1209 OF 2021


                PREM SHANKAR PRASAD                                     .. APPELLANT(S)

                                                  VERSUS

                THE STATE OF BIHAR & ANR.                            .. RESPONDENT(S)




                                              JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 14.08.2019 passed by the High Court of

Judicature at Patna in Criminal Miscellaneous Application No.

50530 of 2019, by which the High Court has allowed the said
Signature Not Verified

Digitally signed by R
Natarajan
criminal miscellaneous application and has granted anticipatory
Date: 2021.10.21
16:32:23 IST
Reason:

bail to respondent No.2 herein – accused, the original informant

– complainant has preferred the present appeal.
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2. That first information report came to be filed by the appellant

herein against respondent No.2 with Chapra Town Police

Station, Saran in case No.453 of 2018 for the offences

punishable under sections 406, 407, 468, 506 of the Indian

Penal Code, 1860. A warrant of arrest came to be issued by

learned Chief Judicial Magistrate, Saran, Chapra on

19.12.2018. It appears that thereafter respondent No.2 –

accused is absconding and concealing himself to avoid service

of warrant of arrest. Thereafter learned Chief Judicial

Magistrate issued a proclamation against respondent No.2

under section 82 Cr.PC. Only thereafter and issuance of

proclamation under section 82 Cr.PC, respondent No.2 –

accused filed anticipatory bail application before learned Trial

Court. By a detailed order dated 29.01.2019 the learned Trial

Court dismissed the said anticipatory bail application and

rejected the prayer for anticipatory bail on merits as well as on

the ground that as the accused is absconding and even the

proceedings under section 82/83 Cr.PC have been issued, the

accused is not entitled to the anticipatory bail. That thereafter

the accused approached the High Court by way of present

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application and despite the fact that it was specifically pointed

to the High Court that since the process of proclamation under

section 82 & 83 Cr.PC have been issued, the accused should

not be allowed the privilege of anticipatory bail, ignoring the

aforesaid relevant aspect, by the impugned judgment and order

the High Court has allowed the said anticipatory bail by

observing that in the event of his arrest/surrender within six

weeks in the Court below, he may be released on bail on

furnishing bail bond of Rs.10,000/­ with two sureties of the like

amount each to the satisfaction of the learned Chief Judicial

Magistrate, Saran, Chapra and subject to the conditions as laid­

down under section 438 (2) of Cr.PC.

3. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court granting anticipatory bail to

respondent No.2 – accused, the original informant/complainant

– appellant has preferred the present appeal.

4. Shri Rituraj Biswas, learned Advocate appearing on behalf of

the appellant has vehemently submitted that in the facts and

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circumstances of the case, the High Court has committed a

grave error in allowing the anticipatory bail application.

4.1 It is submitted that considering the fact that the accused was

avoiding the arrest and even did not co­operate with

investigating agency and even after the arrest warrants were

issued, the proceedings under sections 82­83 of Cr.PC were

initiated, the High Court ought not to allow the anticipatory bail

application.

4.2 It is submitted that though the factum of initiation of

proceedings under Section 82­83 of Cr.PC was pointed out, the

High Court has simply ignored the same.

4.3 It is further submitted that even the High Court has not at all

considered the seriousness of the offences alleged namely the

offences under sections 406, 420 of IPC, which were in detail

considered by the learned Trial Court while rejecting the

anticipatory bail application.

4.4 It is submitted that the High Court has granted the anticipatory

bail to respondent No.2 solely observing that the nature of

accusation arising out of a business transaction. It is submitted
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that merely because it was a business transaction, without

further considering the nature of allegations the High Court

ought not to have granted the anticipatory bail to respondent

No.2 – accused.

4.5 Relying upon the decision of this court in case of State of

Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC

171, it is submitted that as observed and held by this court a

person against whom the proclamation has been issued and the

proceedings under sections 82­83 of Cr.PC have been initiated,

is not entitled to the benefit of anticipatory bail.

4.6 It is further submitted that even subsequently a charge­sheet

has been filed against the accused – respondent No.2 for the

offences punishable under sections 406 and 420 of IPC.

4.7 Making the above submissions and relying upon above decision

of this court, it is prayed to allow the present appeal and quash

and set aside the impugned judgment and order passed by the

High Court granting anticipatory bail to respondent No.2 –

accused.

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5. Shri Devashish Bharuka, learned Advocate appearing on behalf

of the State has supported the appellant and has submitted

that on being found a prima facie case against respondent No.2

– accused, a charge­sheet has been filed against the accused

under sections 406 and 420 of IPC also.

6. Shri Abhishek, learned Advocate appearing on behalf of

respondent No.2 has vehemently submitted that in the facts

and circumstances of the case, the High Court has not

committed any error in granting anticipatory bail to respondent

No.2 – accused.

6.1 It is submitted that the High Court has rightly observed that the

nature of accusation is arising out of a business transaction. It

is submitted that merely because the cheque was given and the

same came to be dishonored it cannot be said that the offences

under sections 406 and 420 of IPC is made out. It is submitted

that at the most the case may fall under section 138 of

Negotiable Instruments Act, 1881.

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6.2 It is submitted that as such respondent No.2 – accused was

available for interrogation and therefore there is no question of

absconding.

6.3 It is further submitted by the learned counsel appearing on

behalf of respondent No.2 – accused that at this stage only the

charge­sheet has been filed in the court, but the learned

Magistrate has yet to take cognizance of the same.

7. We have heard the learned counsel appearing on behalf of the

appellant – original informant ­ complainant as well as learned

counsel appearing on behalf of the State and the learned

counsel appearing on behalf of respondent no.2­ accused.

7.1 It is required to be noted that after investigation a charge­sheet

has been filed against respondent no.2 – accused for the

offences punishable under sections 406, 420 of IPC also. Thus

it has been found that there is a prima facie case against the

accused. It has come on record that the arrest warrant was

issued by the learned Magistrate as far as back on 19.12.2018

and thereafter proceedings under sections 82­83 of Cr.PC have

been initiated pursuant to the order passed by the learned Chief
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Judicial Magistrate dated 10.01.2019. Only thereafter

respondent No.2 moved an application before the learned Trial

Court for anticipatory bail which came to be dismissed by the

learned Additional Sessions Judge, Saran, by a reasoned order.

The relevant observations made by the learned Additional

Sessions Judge, Saran, while rejecting the anticipatory bail

application are as under:­

“Perused the record. The prosecution case as
alleged in the typed application of the informant
Prem Shankar Prasad is that the informant is a
retailer shopkeeper of medicines in the name of
Maa Medical Store, Gandhi Chauk, Chapra and the
petitioner is his stockiest who runs his business in
the name of Rajnish Pharma, Mauna Pakari. The
petitioner and the informant were on good terms,
so, the informant gave Rs. 36,00,000/­ to the
petitioner in case and through cheque for purchase
of medicine. When the required were not supplied
to the informant, the informant demanded his Rs.
36,00,000/­ then, the petitioner gave a cheque of
Rs. 10,00,000/­ bearing cheque no. 137763 dated
25.11.2017 which was in the Canara Bank of the
petitioner which was dishonored by the bank with
a note “insufficient fund”. Thereafter the informant
demanded his money in case. On 20.06.18 but, the
brothers of the petitioner misbehaved with the
informant. The brothers of the petitioner also
threatened not to contact the police or the
consequences will be worst: On this informant
Chapra Town PS No. 453/2018 was registered and
investigation proceeded.

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Perused the case diary from which it transpires
that in para 4 there is a re­statement of the
informant in which he has supported the
prosecution case. In para 8, 9, 10, and 11 witness
Amit Kumar Sinha, Awadhesh Kumar, Dhannu
Kumar and Uday Shankar Prasad has been
examined under section 161 of Cr.PC in which they
have supported the prosecution case. In para 16
there is supervision note of SDPO, Sadar in which
prosecution case. In found true under sections
420
, 406 of IPC and 138 of NI Act. In para 23
processes under sections 82 and 83 of Cr.PC have
been issued against the petitioner in para 38 there
is a statement of witness Ashutosh Mishra who is a
medical representative and has stated that Rajnish
Srivastava, being stockiest of the medicine used to
sell the medicines of his company in course
whereof he has borrowed a sum of Rs. 7,10,000/­
from him. When he asked to return back the
money he has issued a cheque of the aforesaid
amount which was dishonor by his bank due to
insufficient fund. In para 39 another witness
Pramod Kumar Thakur has been examined who
has deposed that this petitioner Rajnish Srivastava
has borrowed a sum of Rs. 10,00,000/­ on the
pretext of purchasing a piece of land. When he
demanded his money back. Rajnish Srivastava
gave a cheque of the aforesaid amount which was
dishonored by the bank. The investigation in the
case is still going on.

From perusal of the case record I find that the
informant has alleged to have given a sum of Rs.
36,00,000/­ to this petitioner in order to supply
certain medicines which was neither supplied nor
the amount was ever refunded. Admittedly, the
said amount was given to the petitioner on an oral
undertaking as there is nothing on record to
substantiate the aforesaid averments, but, the fact
remains that the petitioner in order to refund the
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said amount has issued a cheque of
Rs.10,00,000/­ bearing cheque no. 137763 dated
25.11.2017 which was deposed by the informant in
the bank, but, the same was dishonored with
record I further find that the petitioner is in the
habit of borrowing money from different persons
and then used to make default in payment
inasmuch as by issuing cheques without sufficient
balance in his account which transpires form paras
38 and 39 of the case diary.”

7.2 Despite the above observations on merits and despite the fact

that it was brought to the notice of the High Court that

respondent No.2 – accused is absconding and even the

proceedings under sections 82­83 of Cr.PC have been initiated

as far as back on 10.01.2019, the High Court has just ignored

the aforesaid relevant aspects and has granted anticipatory bail

to respondent No.2 – accused by observing that the nature of

accusation is arising out of a business transaction. The specific

allegations of cheating, etc., which came to be considered by

learned Additional Sessions Judge has not at all been

considered by the High Court. Even the High Court has just

ignored the factum of initiation of proceedings under sections

82­83 of Cr.PC by simply observing that “be that as it may”. The

aforesaid relevant aspect on grant of anticipatory bail ought not

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to have been ignored by the High Court and ought to have been

considered by the High Court very seriously and not casually.

7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma

(Supra), it is observed and held by this court that if anyone is

declared as an absconder/proclaimed offender in terms of

section 82 of Cr.PC, he is not entitled to relief of anticipatory

bail. In paragraph 14 to 16, it is observed and held as under:­

“14. In order to answer the above question, it is
desirable to refer to Section 438 of the Code which
reads as under:

“438. Direction for grant of bail to person
apprehending arrest.—(1) Where any
person has reason to believe that he may be
arrested on accusation of having committed
a non­bailable 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;
and that court may, after taking into
consideration, inter alia, the following
factors, namely—

(i) the nature and gravity of the accusation;

(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;

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(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.”

The above provision makes it clear that the power
exercisable under Section 438 of the Code is
somewhat extraordinary in character and it is to be
exercised only in exceptional cases where it appears
that the person may be falsely implicated or where
there are reasonable grounds for holding that a
person accused of an offence is not likely to
otherwise misuse his liberty.

15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC
303] this Court considered the scope of Section 438
of the Code as under : (SCC pp. 311­12, para 16)

“16. Section 438 is a procedural provision
which is concerned with the personal liberty
of an individual who is entitled to plead
innocence, since he is not on the date of
application for exercise of power under

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Section 438 of the Code convicted for the
offence in respect of which he seeks bail. The
applicant must show that he has ‘reason to
believe’ that he may be arrested in a non­
bailable offence. Use of the expression
‘reason to believe’ shows that the belief that
the applicant may be arrested must be
founded on reasonable grounds. Mere ‘fear’
is not ‘belief’ for which reason it is not
enough for the applicant to show that he has
some sort of vague apprehension that
someone is going to make an accusation
against him in pursuance of which he may
be arrested. Grounds on which the belief of
the applicant is based that he may be
arrested in non­bailable offence must be
capable of being examined. If an application
is made to the High Court or the Court of
Session, it is for the court concerned to
decide whether a case has been made out for
granting of the relief sought. The provisions
cannot be invoked after arrest of the
accused. A blanket order should not be
generally passed. It flows from the very
language of the section which requires the
applicant to show that he has reason to
believe that he may be arrested. A belief can
be said to be founded on reasonable grounds
only if there is something tangible to go by
on the basis of which it can be said that the
applicant’s apprehension that he may be
arrested is genuine. Normally a direction
should not issue to the effect that the
applicant shall be released on bail ‘whenever
arrested for whichever offence whatsoever’.
Such ‘blanket order’ should not be passed as
it would serve as a blanket to cover or
protect any and every kind of allegedly
unlawful activity. An order under Section
438
is a device to secure the individual’s
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liberty, it is neither a passport to the
commission of crimes nor a shield against
any and all kinds of accusations likely or
unlikely. On the facts of the case, considered
in the background of the legal position set
out above, this does not prima facie appear
to be a case where any order in terms of
Section 438 of the Code can be passed.”

16. Recently, in Lavesh v. State (NCT of Delhi) [(2012)
8 SCC 730] , this Court (of which both of us were
parties) considered the scope of granting relief under
Section 438 vis­à­vis a person who was declared as
an absconder or proclaimed offender in terms of
Section 82 of the Code. In para 12, this Court held as
under : (SCC p. 733)

“12. From these materials and information, it
is clear that the present appellant was not
available for interrogation and investigation
and was declared as ‘absconder’. 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 he is not entitled to the relief of
anticipatory bail.”

It is clear from the above decision that if anyone is
declared as an absconder/proclaimed offender in
terms of Section 82 of the Code, he is not entitled to
the relief of anticipatory bail.”

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Thus the High court has committed an error in granting

anticipatory bail to respondent No.2 – accused ignoring the

proceedings under Section 82­83 of Cr.PC.

8. Even the observations made by the High Court while granting

the anticipatory bail to respondent No.2 – accused that the

nature of accusation is arising out of a business transaction

and therefore the accused is entitled to the anticipatory bail is

concerned, the same cannot be accepted. Even in the case of a

business transaction also there may be offences under the IPC

more particularly sections 406, 420, 467, 468, etc. What is

required to be considered is the nature of allegation and the

accusation and not that the nature of accusation is arising out

of a business transaction. At this stage, it is required to be

noted that respondent No.2 ­ accused has been charge­sheeted

for the offences punishable under sections 406 and 420, etc.

and a charge­sheet has been filed in the court of learned

Magistrate Court.

9. In view of the above and for the reasons stated above, the

impugned judgment and order dated 14.08.2019 passed by the

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High Court granting anticipatory bail to respondent No.2 –

accused is un­sustainable and deserves to be quashed and set

aside and is accordingly quashed and set aside. However, two

weeks’ time from the date of pronouncement of this judgment is

granted to respondent No.2 to surrender before the concerned

Trial Court and thereafter it will be open for respondent No.2 –

accused to pray for regular bail, which may be considered in

accordance with law and on its own merits. The present appeal

is accordingly allowed in the aforesaid terms.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(A. S. BOPANNA)

New Delhi,
October 21, 2021.

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