Post-Bail Conduct Not Valid Consideration In Appeal Against Grant Of Bail; Supreme Court Sets Aside Anticipatory Bail Granted To Absconding Accused By MP High Court
Kiran Raj
The Supreme Court of India Division Bench of Justice JB Pardiwala and Justice Vijay Bishnoi set aside a Madhya Pradesh High Court order granting anticipatory bail to an accused who had been absconding for nearly six years in connection with a 2017 incident involving mob violence, gunfire, and the death of one person. The Court held that an accused's conduct following the grant of bail carries no weight in an appeal against such a grant and remains relevant only when cancellation of bail is sought. The bench observed that the High Court erred in extending the benefit of co-accused acquittals to an accused who had evaded the legal process throughout the trial, noting that the prosecution is under no obligation to lead evidence against an absconding accused during proceedings against co-accused persons.
The appeal arose from an order of the High Court granting anticipatory bail to an accused in connection with incidents dated 02.06.2017, allegedly stemming from political rivalry between two groups. Three FIRs were registered. In the subject FIR, offences under Sections 341, 147, 148, 149, 307 IPC and Sections 25 and 27 of the Arms Act were invoked, and later Section 302 IPC was added following the death of one injured person due to firearm injuries. A cross FIR was also lodged by the co-accused against the original complainant and others.
The accused had remained absconding since the date of the incident. Letters were issued for initiating proceedings under Sections 82 and 83 CrPC. A subsequent FIR was lodged in 2019 alleging threats by the accused to an injured witness. The trial court acquitted the co-accused in the subject FIR but convicted the original complainant and others in the cross case. The accused filed multiple anticipatory bail applications; the third application was disposed of by the High Court directing surrender and grant of regular bail. The original complainant challenged this order before the Supreme Court.
The Supreme Court addressed the fundamental question of whether an absconder is entitled to anticipatory bail, observing that "it is a trite position that an absconder is not entitled to the relief of anticipatory bail as a general rule, however, in certain exceptional cases, where on a perusal of the FIR, case diary and other relevant materials on record, the Court is of the prima facie opinion that no case is made out against the absconding accused, then the power of granting anticipatory bail may be exercised in favour of the absconding accused."
On the question of whether a procedural irregularity in declaring an accused an absconder could justify anticipatory bail, the Court recorded that "even if there was any procedural irregularity in declaring the respondent-accused as an absconder, that by itself was not a justifiable ground to grant pre-arrest bail in a case of grave offence, save where the High Court, on perusal of the case diary and other material on record, is prima facie satisfied that it is a case of false or overexaggerated accusation."
On the reliance placed by the accused on the acquittal of co-accused persons, the Court stated that "the ground raised by the Accused that other co-accused in the Subject FIR have been acquitted by the trial Court does not ipso facto entitle him to the relief of anticipatory bail on the ground of parity, particularly when the Accused himself failed to cooperate with the Court and delayed the trial of the other co-accused by absconding." The Court further stated that "in a trial against the co-accused, the prosecution is not called upon, nor is it expected to adduce evidence against the absconding co-accused. In such trial the prosecution cannot be held to have the opportunity or obligation to adduce all evidence against the absconding co-accused."
On the distinction between an appeal against grant of bail and an application for cancellation of bail, the Court, referencing Ashok Dhankad v. State of NCT of Delhi and Another, stated that "an appeal against grant of bail cannot be considered to be on the same footing as an application for cancellation of bail" and that "an appeal against grant of bail may be entertained by a superior Court on grounds such as perversity; illegality; inconsistency with law; relevant factors not been taken into consideration including gravity of the offence and impact of the crime." The Court further stated that "the Court may not take the conduct of an accused subsequent to the grant of bail into consideration while considering an appeal against the grant of such bail. Such grounds must be taken in an application for cancellation of bail."
The Court also observed that "granting the relief of anticipatory bail to an absconding accused person sets a bad precedent and sends a message that the law-abiding co-accused persons who stood trial, were wrong to diligently attend the process of trial and further, incentivises people to evade the process of law with impunity."
The Court directed that “we set aside the Impugned Order dated 19.01.2024, and direct the Accused to surrender before the Court concerned within a period of four weeks from today. The observations made hereinabove are limited for the purpose of the present proceedings and would not be construed as any opinion on the merits of the case. After the surrender, the Accused will be free to seek regular bail before the Court concerned, and any such prayer shall be decided in accordance with law, without being prejudiced by the present judgment. The present appeal stands allowed in the aforesaid terms.”
Case Title: Balmukund Singh Gautam v. State of Madhya Pradesh and Another
Neutral Citation: 2026 INSC 157
Case Number: Criminal Appeal Arising Out of SLP (Criminal) No. 15349 of 2024
Bench: Justice J.B. Pardiwala and Justice Vijay Bishnoi
