In the case of Balveer Singh Bundela v. State of Madhya Pradesh, the prosecutrix challenged the maintainability of anticipatory bail. The court stated the difference between ‘maintainability’ and ‘entitlement’.
Facts of the case
The complainant has accused the 41- year old of rape in the pretext of marriage. He married the complainant on 16.11.2019 without giving divorce to his first wife. He has allegedly committed rape on 26/27.10.2019 and 11.12.2019. The investigating agency issued an arrest warrant under section 376, 386 and 506 of IPC.
To no avail, the Superintendent of Police declared the accused as ‘absconder’ with a cash reward of Rs. 5000 for the information. Thus, the counsel has filed the first application for anticipatory bail. The Gwalior bench of Madhya Pradesh High Court took up the matter for hearing.
Arguments by the Applicant’s Counsel
The counsel contended the matter under Section 438 of CrPC. On 28.01.2020, the parties reached a compromise with the transfer of a certain sum in the past. But, the Court rejected compromise as the allegation was under Section 376 of IPC. Thus, the complainant has converted incompatibility in a relationship into a rape offence.
Further, physical intimacy in wedlock must not result in rape post severance. He characterises the applicant as a reputed citizen of the locality. Further, he has a remote chance of absconding. Presumably, confinement brings social disrepute and personal inconvenience. Thus, the counsel undertook cooperation in the investigation. As a result, they guaranteed no source of harassment.
Additionally, the counsel responded on the invocation of Section 82 of CrPC. It provides for declaring a person as an ‘absconder’. He contended that mere declaration of reward on arrest does not comply to Section 82 of CrPC. The liberty to declare award has become a device to deny an applicant a chance of anticipatory bail.
It also presents the issue of whether Section 438 of IPC is an essential element of Article 21. The exclusion may become an unreasonable restriction. It attracts constitutional vulnerability and infringes the fundamental right.
Arguments by the Respondent’s Counsel
The respondents have relied on the provisions of section 82 and 83 of CrPC. The Apex Court in Lavesh v. State (NCT of Delhi), (2012) 8 SCC 73, debarred absconders under Section 82 of CrPC to get anticipatory bail.
The respondents object the bail as the investigating agency declared reward on the arrest. The reward declaration evidence that the accused did not cooperate in the investigation. So, the proclamation of ‘offender’ makes it void to seek relief under anticipatory bail.
The Court distinguished between ‘maintainability’ and ‘entitlement’. It analysed the judgement in Lavesh case (supra). It only suggests that the absconder loses ‘entitlement’ to bail. The Court will analyse the plea for anticipatory bail of an absconder as per the merits of dismissal.
Moreover, it stated that Section 82, 83 of CrPC are interim and subject to proceedings as per Section 84, 86 of CrPC. Thus, the court cannot curtail the right to personal liberty via anticipatory bail.
The Court re-iterated the judgement in Gurubaksh Singh Sibbia v. the State of Punjab, AIR 1980 SC 1632. The court held that anticipatory bail is maintainable even after filing the charge sheet. But, this condition is applicable only until the person is not arrested.
It observed that the declaration of reward was a mere bounty on arrest of the applicant. The police did not start any process under Section 82 of CrPC. But, it as an important factor of consideration while rejecting the anticipatory bail.
The Court noted the maturity of the parties as they had tried to settle the matter under Section 482. This implies that they waited for consequences while living together. The Court placed reliance on Pramod Suryabhan Pawar v. the State of Maharashtra, AIR 2019 SC 4010. In this case, it stated that physical intimacy in the guise of marriage is not an offence of rape.
The Court stated, “the application deserves dismissal on merits if he is declared as absconder under Section 82 of CrPC, but the application is certainty maintainable”. Thus, there must be no restriction on the admissibility of the application. And the Court will determine entitlements on further consideration.
The single-judge bench comprised of Justice Anand Pathak pronounced the judgement. The Court granted the anticipatory bail on considering the facts and precedents. Thus, the applicant will be released on bail by furnishing a personal bond of Rs. 1,00,000 to the satisfaction of investigating officer. The applicant must furnish bond within one and a half month as the situation moves out of lockdown.
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