Introduction:
The Jammu & Kashmir and Ladakh High Court has refused to grant anticipatory bail to an accused in a rape case, holding that a person who repeatedly evades the process of law and remains absconding for years cannot ordinarily claim the extraordinary protection of pre-arrest bail. Justice Sanjay Dhar dismissed the anticipatory bail application filed by Rajat Kumar, observing that an accused who continuously defies legal proceedings and avoids investigation is not entitled to the concession of bail in the absence of exceptional circumstances.
The decision highlights two important aspects of anticipatory bail jurisprudence: the circumstances in which an accused declared a proclaimed offender may seek protection from arrest, and the principles governing a direct approach to the High Court when the Sessions Court is also empowered to entertain an anticipatory bail application. The Court examined both issues before concluding that the petitioner had failed to establish grounds for the relief sought.
The case arose from an FIR registered at Police Station Billawar under Section 376 of the Indian Penal Code, concerning allegations that the accused had sexually assaulted the complainant in a maize field. During the investigation, the complainant’s statement was recorded before a Magistrate. Her school records indicated that she was a minor at the time of the alleged incident. On the basis of the material collected during the investigation, the investigating agency subsequently filed a chargesheet before the Principal Sessions Judge, Kathua, invoking Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), in addition to the relevant provision of the IPC.
According to the prosecution, Rajat Kumar had absconded after the alleged incident and could not be apprehended despite efforts by the police to trace him across Jammu and Kashmir. The investigating agency maintained that the accused had failed to cooperate with the investigation and had remained unavailable to the authorities for a considerable period.
The Sessions Court eventually declared him a proclaimed offender and directed the issuance of general warrants of arrest. Proceedings under Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), were also initiated against him, as stated in the case summary. These developments formed an important part of the background against which the High Court considered the anticipatory bail application.
Anticipatory bail is a form of pre-arrest protection available under Section 482 of the BNSS, which corresponds broadly to Section 438 of the Code of Criminal Procedure, 1973 (CrPC). It allows a person who apprehends arrest on an accusation of having committed a non-bailable offence to seek a direction that, in the event of arrest, the person be released on bail, subject to the conditions imposed by the court.
The remedy is intended to protect individuals against unjustified or unnecessary arrest while preserving the ability of investigating agencies to investigate offences lawfully. It is not an automatic entitlement available in every criminal case. Courts examine the nature and gravity of the accusation, the circumstances of the case, the applicant’s conduct, the possibility of evading investigation, and other relevant considerations before deciding whether pre-arrest protection is justified.
In Rajat Kumar’s case, the High Court was confronted with an applicant who had already been declared a proclaimed offender after allegedly failing to join the investigation for years. The Court also considered a separate procedural issue: whether the petitioner had demonstrated sufficient exceptional circumstances to approach the High Court directly without first seeking anticipatory bail from the Sessions Court.
Although the High Court and the Sessions Court possess concurrent jurisdiction to consider anticipatory bail applications, the existence of concurrent jurisdiction does not mean that an applicant can disregard the ordinary judicial hierarchy without explanation. The High Court referred to the Supreme Court’s decisions in Jagdeo Prasad v. State of Bihar and Mohammed Rasal C. v. State of Kerala while examining this question.
The Court found that the petitioner had neither approached the Sessions Court for anticipatory bail nor disclosed his current residential address in the application. His application continued to mention an address at Village Kohag, Tehsil Billawar, District Kathua. The explanation that he might presently be residing outside the Union Territory of Jammu and Kashmir was not considered sufficient to justify bypassing the Sessions Court.
On the merits, the Court relied on the petitioner’s prolonged absence from the investigation and his status as a proclaimed offender. Referring to the Supreme Court’s decision in Lavesh v. State (NCT of Delhi), the High Court reiterated that anticipatory bail is ordinarily not appropriate where an accused is absconding and has been declared a proclaimed offender.
The Court ultimately dismissed the application, finding that the petitioner had failed to establish exceptional circumstances warranting direct intervention or pre-arrest protection despite his proclaimed-offender status. The decision reinforces the principle that anticipatory bail is a judicial remedy intended to prevent unjustified arrest, not a mechanism for avoiding investigation or frustrating the administration of criminal justice.
Arguments of the Parties:
The complete pleadings and written submissions of both sides are not reproduced in the available case summary. The arguments must therefore be understood from the contentions specifically attributed to the petitioner, the prosecution’s position, and the legal questions considered by the High Court.
The petitioner’s principal request was for anticipatory bail in connection with the criminal case registered against him. One of the grounds raised on his behalf was that his declaration as an absconder or proclaimed offender should not, by itself, automatically disqualify him from seeking pre-arrest protection.
This contention raised an important question concerning the nature of anticipatory bail. The remedy is intended to protect personal liberty where an individual reasonably apprehends arrest, and the fact that criminal proceedings are pending does not automatically eliminate the court’s power to consider an application. The petitioner sought relief despite the adverse procedural history, requiring the High Court to determine whether the circumstances justified the exercise of its discretionary jurisdiction.
The petitioner also contended that the investigating agency had not issued him any notice, suggesting that he had not been given an opportunity to appear before the police. This argument was relevant to his position that his failure to join the investigation should not necessarily be treated as deliberate evasion.
A failure to receive or respond to a notice may have different implications depending on the circumstances. If an accused was genuinely unaware of the investigation or had not received a communication requiring appearance, that fact could be relevant when assessing the person’s conduct. Conversely, where the investigating agency has made documented efforts to locate the accused and the competent court has already considered the evidence concerning the person’s absence, the claim of lack of notice must be assessed against the available record.
The petitioner also appears to have relied on his possible present residence outside Jammu and Kashmir in seeking to approach the High Court directly. The Court considered this circumstance but held that merely residing outside the Union Territory was not a sufficient reason to bypass the Sessions Court.
The issue was not whether the High Court lacked jurisdiction altogether. Rather, it concerned whether the petitioner had provided an adequate justification for invoking that jurisdiction in the first instance instead of approaching the Sessions Court, which also had the authority to entertain an anticipatory bail application.
The petitioner’s position, therefore, involved two distinct questions. The first concerned whether his status as a proclaimed offender should conclusively prevent consideration of anticipatory bail. The second concerned whether his circumstances justified approaching the High Court directly. Both questions required the Court to examine the applicable principles without treating the existence of a criminal accusation as sufficient, on its own, to determine the application.
On the prosecution’s side, the central objection was founded on the petitioner’s prolonged absence from the investigation and the judicial proceedings declaring him a proclaimed offender. According to the prosecution, the accused had absconded after the alleged incident and could not be apprehended despite police efforts to trace him across Jammu and Kashmir.
The investigating agency had placed material before the Sessions Court concerning its attempts to locate the petitioner. The High Court noted that statements of police officials who had undertaken searches to trace him had been recorded and that the Sessions Court had considered the material before concluding that he had absconded and failed to respond to notices issued by the investigating agency.
This material was significant because the allegation of absconding was not presented merely as an unsupported assertion by the prosecution. It had formed the basis of an earlier judicial determination by the Sessions Court. The High Court consequently found it necessary to assess the petitioner’s claim of lack of notice in light of the proceedings that had already taken place.
The prosecution’s position was also supported by the fact that the petitioner had remained unavailable to the investigating agency for years. From the standpoint of criminal investigation, an accused person’s prolonged evasion can create serious difficulties in collecting evidence, examining relevant circumstances, and bringing the case to trial. Where a person has deliberately avoided the process of law, the risk of continued non-cooperation becomes a relevant consideration when deciding whether anticipatory bail should be granted.
The seriousness of the allegations also formed part of the background. The FIR concerned an alleged offence of rape, and the investigating agency had invoked Sections 4 and 6 of the POCSO Act after examining the complainant’s statement and school records indicating that she was a minor at the relevant time. These allegations were matters for determination through the criminal process and could not be treated as established guilt merely because a chargesheet had been filed.
Nevertheless, the nature of the accusations, the procedural history, and the petitioner’s alleged conduct were relevant circumstances in the bail proceedings. The prosecution’s objection rested particularly on the contention that an accused who had failed to join the investigation for years and had been declared a proclaimed offender should not receive pre-arrest protection without a compelling justification.
The prosecution’s position also found support in the principle recognised in the Supreme Court’s decision in Lavesh v. State (NCT of Delhi), which addresses the ordinary approach to anticipatory bail where an accused is absconding and has been declared a proclaimed offender. The principle does not eliminate the court’s jurisdiction in every conceivable situation, but it places substantial importance on the applicant’s conduct and the circumstances surrounding the declaration.
After considering the competing positions, the High Court concluded that the petitioner had not established a sufficient basis for relief. His claim regarding the absence of notice did not overcome the material considered by the Sessions Court, while his possible residence outside Jammu and Kashmir did not justify a direct approach to the High Court. His prolonged absence and proclaimed-offender status further weighed against the grant of anticipatory bail.
Court’s Judgment:
The Jammu & Kashmir and Ladakh High Court dismissed Rajat Kumar’s anticipatory bail application after examining both the procedural propriety of approaching the High Court directly and the merits of the request for pre-arrest protection. Justice Sanjay Dhar found no exceptional circumstances warranting the exercise of the Court’s jurisdiction in the petitioner’s favour.
The judgment is significant because it addresses the interaction between concurrent jurisdiction, the ordinary course of judicial proceedings, and the conduct of an accused who has allegedly remained beyond the reach of investigating authorities for years.
The first issue considered by the Court was whether the petitioner could approach the High Court directly without first applying to the Sessions Court. Under Section 482 of the BNSS, the High Court and the Court of Session have concurrent jurisdiction to grant anticipatory bail. This means that both courts possess the statutory authority to entertain an appropriate application.
However, concurrent jurisdiction does not necessarily mean that an applicant has an unrestricted choice to bypass the Sessions Court without providing a reason. The ordinary judicial approach is that a person seeking anticipatory bail should first approach the Sessions Court, which is generally the appropriate initial forum for consideration of such relief.
The High Court referred to the Supreme Court’s decisions in Jagdeo Prasad v. State of Bihar and Mohammed Rasal C. v. State of Kerala in explaining this principle. These authorities were considered in the context of the relationship between the powers of the Sessions Court and the High Court in anticipatory bail matters.
The Court clarified that the ordinary practice of approaching the Sessions Court first is not an inflexible rule. Exceptional circumstances may justify a direct application before the High Court. The question, therefore, is not whether the High Court possesses jurisdiction, but whether the applicant has shown a sufficient reason for invoking it without first approaching the Sessions Court.
Applying this principle to the facts, Justice Dhar found that the petitioner had not established any compelling reason for bypassing the Sessions Court. The petitioner had not filed an anticipatory bail application before that court, and the explanation that he might presently be residing outside Jammu and Kashmir was insufficient.
The Court observed that merely residing outside the Union Territory did not constitute a good enough reason to approach the High Court directly. A change in residence, without more, does not automatically establish that the ordinary judicial forum is unavailable or that exceptional intervention is necessary.
The petitioner’s failure to disclose his current address further weakened his position. The application continued to mention Village Kohag, Tehsil Billawar, District Kathua, without providing the address at which he was allegedly residing at present. Disclosure of a current address is relevant to transparency in judicial proceedings, particularly when the applicant’s history includes allegations of absconding and failure to cooperate with an investigation.
The Court’s approach reflects the broader principle that a person seeking discretionary relief must place relevant facts before the court and provide a credible basis for the exercise of its jurisdiction. A litigant cannot ordinarily rely on an unexplained change of residence to avoid the usual judicial process, especially when the person’s availability to the investigating agency is already in question.
The second issue concerned the petitioner’s status as a proclaimed offender and the consequences of his prolonged failure to join the investigation. The High Court noted that the prosecution had alleged that the petitioner absconded after the incident and could not be traced despite efforts by the police.
The investigating agency had placed material before the Sessions Court concerning the steps taken to locate him. Statements of police officials who had conducted searches were recorded, and the Sessions Court had considered the material before declaring the petitioner a proclaimed offender and directing the issuance of general warrants of arrest.
The High Court also considered the proceedings initiated under Section 335 of the BNSS, as mentioned in the case summary. Taken together, these developments formed part of the procedural background against which the application for anticipatory bail was assessed.
The petitioner argued that his declaration as an absconder should not automatically deprive him of the opportunity to seek anticipatory bail. The Court, however, found that his status could not be considered in isolation from his conduct. The prolonged failure to join the investigation and the material supporting the declaration of proclaimed-offender status constituted substantial reasons to refuse pre-arrest protection.
Justice Dhar observed that an individual who repeatedly defies the process of law and continues to abscond cannot ordinarily claim the concession of bail. The Court emphasised that the petitioner had remained away from the investigation for years and had not demonstrated circumstances sufficient to justify the protection sought.
In reaching this conclusion, the High Court relied on the Supreme Court’s decision in Lavesh v. State (NCT of Delhi). In that case, the Supreme Court observed that, ordinarily, where an accused is absconding and has been declared a proclaimed offender, anticipatory bail should not be granted.
The principle in Lavesh is important because anticipatory bail is intended to protect an individual against unjustified arrest, not to facilitate the continued avoidance of lawful investigation. Where an accused has deliberately evaded the investigating agency and has been formally declared a proclaimed offender, the court must take that conduct seriously while assessing whether the extraordinary remedy is justified.
The principle should nevertheless be understood as an ordinary rule rather than an absolute statutory prohibition. The High Court’s reasoning focused on the absence of exceptional circumstances in the petitioner’s case. The relevant question was whether the facts disclosed a compelling basis to depart from the ordinary approach. Justice Dhar concluded that they did not.
The petitioner’s argument that the investigating agency had not issued notice was also considered against the existing record. The High Court noted that the police had placed material before the Sessions Court and that the court had recorded its satisfaction that the petitioner had absconded and failed to respond to notices issued by the investigating agency.
This distinction is significant. An allegation that no notice was received may be relevant, but it cannot necessarily be considered in isolation where an earlier court has examined material concerning the accused’s absence and the efforts undertaken to secure his presence. The High Court was entitled to consider the existing judicial findings and the material supporting them when assessing the credibility and significance of the petitioner’s contention.
The Court’s reasoning also reflects the relationship between personal liberty and the administration of criminal justice. Anticipatory bail is an important protection against unnecessary or unjustified arrest. However, its exercise requires the court to consider the circumstances of the individual case, including the applicant’s conduct and willingness to participate in the legal process.
The mere filing of an FIR does not establish guilt, and the seriousness of an allegation cannot, by itsel, replace a proper assessment of the bail application