Bail jumpers can’t seek parity with other accused: HC

Court was hearing a plea by an accused who had failed to appear in the trial court for almost 2 yrs

CHANDIGARH: The Punjab and Haryana high court has made it clear that those jumping bail can’t seek parity in seeking anticipatory bail with those wherein there is an apprehension of arrest on institution of FIR or lodging of complaint or having been summoned by a court for the first time to face trial.

The bench of justice Gurvinder Singh Gill said it is only when a person apprehends his arrest pursuant to an accusation having been made regarding commission of non-bailable offence that provisions of section 438 CRPC (provisions which deal with anticipatory bail matters) may be availed of.

The court dismissed a plea filed by one Pawan Kumar against whom a complaint under the sections of Section 138 of Negotiable Instruments

Act was filed in January 2018. He secured anticipatory bail but on account of absence before the trial court in July 2019 proceedings and thereafter, protection given to him from arrest was withdrawn and in January 2020, arrest warrants were issued against him.

He had approached high court stating that his son left the house without telling anyone and his family members kept on searching for him and it was only in the first week of June, 2021 that he came to know about the whereabouts of his son. It was on account of the mental tension that he could not appear before the trial court. Another argument was that it was also on account of spread of pandemic that he was prevented from causing appearance.

The court observed that the petitioner remained absent for a period of almost two years. On claim of son went missing, court found that there was nothing to support the said claim as even DDR was not submitted before the court. Apparently, the contention has been cooked up by the petitioner. His argument that he was prevented on account of Covid-19 can also not be accepted as the virus had not spread in July 2019.

Taking note of provisions of the CRPC, the bench observed that it is only upon an apprehension of arrest consequent upon initiation of some criminal proceedings that the said provisions can be invoked.

The bench also took note of an SC judgment in which it was held that when an accused is on bail, he is in a way in constructive custody and if the law requires him to surrender or to take him back in custody, it cannot be said that there is apprehension of his arrest on account of accusation as he is deemed to be in constructive custody already and that in such circumstances provisions of Section 438 CRPC cannot be availed of.

The court further observed that court cannot lose sight of the fact that there would be certain cases where an accused is unable to appear before the trial court on account of genuine reasons. “In such cases, the accused can surrender before the trial court and it is expected that the trial courts would take a lenient view in genuine cases and decide the regular bail application expeditiously,” the bench said.