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According to section 82 of Crpc the offender who has run away can seek anticipatory bail as it does not create “any riders nor imposes any restriction” on them, thus making it clear that an ‘absconder’ can approach for anticipatory bail. This remarkable judgement was passed by Himachal Pradesh High Court in the case of Mahendra Kumar versus State of Himachal Pradesh [Cr. MP (M) No. 1682 of 2020] which was headed by the Hon’ble Mr. Justice Anoop Chitkara.

The petitioner was accused of raping a 15-year-old girl while she was returning from her school in the end of May 2013. The FIR was registered on 19^th July 2013 under section under Sections 376, 506 of Indian Penal Code, 1860, (IPC), and 4 of Protection of Children from Sexual Offences Act, 2012, in Police Station Gohar, District Mandi, Himachal Pradesh, disclosing cognizable and nonbailable offences. The statement of the girl was recorded under section 164 CrPC after her medical examination was conducted but the police failed to capture the accused. The charge sheet was filed without arresting him. Upon the non-execution of the non-bailable warrant, the court proceeded against the accused under section 82 of CrPC and declared him as a proclaimed offender.

This Court relied on the judgements passed in the case of Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, (Para 10), where the Hon’ble Supreme Court held that “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.”

The Court further state that “Section 82 of Crpc neither creates any rides nor imposes any restriction in the filing of anticipatory bails by the proclaimed offenders. Even in Lavesh’s case (supra), 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 smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013. After that, compelled by the lockdown, and fear created by the pandemic of COVID-19, returned home, where, for the first time, he came to know about the FIR and already declared as a proclaimed offender cannot be ruled out. Resultantly, the facts and circumstances are not normal. The legal maxim Domus sua cuique est tutissimum refugium, aptly describes the plight of the accused, which means every man’s house is his safest refuge. Thus the circumstances cannot be termed as normal for the accused, and he 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.”

Click here to read the Judgment

Judgment Reviewed by – Sarita