LEGAL NEWS:-
In the case of Smt. Kantabai w/o Ashok Bhandari v. State of Madhya Pradesh Justice Subodh Abhyankar was deciding a pre-arrest bail plea. Under Section 82(1) of the CrPC proclamation proceedings had been intiated against the Petitioner-accused.
However, the petitioner had argued that the appropriate provision for proclaiming a person to be absconding is via Section 82(4) and not Section 82(1) of the CrPC. Contending that applicant is not declared as a proclaimed offender u/s.82(4) of Cr.P.C. which is a prerequisite to declare a person a proclaimed offender as the applicant has not been charged with any of the sections as provide under s.82(4) of Cr.P.C. which include 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) as the applicant is charged under Sections 409 and 420 read with Section 34 of IPC only.
Further, since in the present case the petitioner has been charged only with offences under Sections 409 and 420 read with Section 34 of IPC.
The procedure for proclamation as specified under Section 82(4) of CrPC shall not be applicable to him. To this the court overthrew the argument of the Petitioner that proclamation can only be initiated under Section 82(4) of CrPC ruling that proceedings a such can also be initiated even under Section 82(1) of the CrPC.
The order read as follows :
"So far as the contentions raised by Shri Rathi that an accused can be declared as proclaimed offender only in terms of s.82(4) of Cr.P.C. is concerned, this court does not find any merits in said claim, this is for the reasons that even when a proclamation is made u/s.82(1) of Cr.P.C., it is also a declaration that the accused has absconded and against whom a publication is made. The procedure adopted u/s.82(4) of Cr.P.C. is no different than the procedure adopted u/s.82(1) of CrP.C”
Further more while making a distinction among the Sections. Court opined that under Section 82(4) CrPC the proclaimed absconder must have been charged only 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 (IPC).
• Justice Abhyankar placed reliance on the Supreme Court case of Lavesh v. State (NCT of Delhi) to rule that there lies no substantive différence between Section 82(1) and Section 82(4) of CrPC and thus for the purpose of granting anticipatory bail, an absconding offender can be proclaimed under either of these two provisions.
Henceforth, the Court disposed of the petition by refusing to grant anticipatory bail to the petitioner, directing him to surrender before the trial court within a period of one week.