Srikant Upadhyay vs State of Bihar 2024 INSC 202 :: [2024] 3 S.C.R. 421 – Ss 82,83, 438 – Anticipatory Bail – Proclamation

Code of Criminal Procedure, 1973; Section 438, 83- 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.PC, in accordance with law. (Para 23)

Code of Criminal Procedure, 1973; Section 438 –Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is concerned – Approved Savitaben Govindbhai Patel & Ors. v. State of Gujarat 2004 SCC OnLine Guj 345

Code of Criminal Procedure, 1973; Section 438 -Nothing prevents the court from adjourning such an application without passing an interim order – In view of the proviso under Section 438(1), Cr.PC, it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail- Approved Shrenik Jayantilal Jain and Anr. v. State of Maharashtra Through EOW Unit II, Mumbai 2014 SCC Online Bom 549. (Para 23)

Code of Criminal Procedure, 1973; Section 438 –The power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant. (Para 24)

Code of Criminal Procedure, 1973; Section 82-The sine qua non for initiation of an action under Section 82, Cr. PC is prior issuance of warrant of arrest by the Court concerned. (Para 10)