When applications are pending under Section 438 CrPC, it cannot be said that the accused are absconding

Bombay High Court: In a case pertaining to custodial death, where proclamations under Section 82 of CrPC, 1973 were issued by the investigating agency to the accused during the pendency of their applications seeking pre-arrest bail, the Bench of Sadhana S. Jadhav, J. held that the proclamation issued against the present applicants shall not be acted upon during the pendency of the hearing of these applications. The Court observed that in fact, when the applications under Section 438 of the Code of Criminal Procedure, 1973 are pending before any court of law, it cannot be said that the accused are absconding. It only means that the accused are evading arrest to take their applications under Section 438 CrPC to its logical end.

The Court observed that  “the deceased had died in the custody of the police. The guardians of law have committed a heinous offence which shocks the conscience of the society, which believes the police to be the guardian of their life and liberty.”

The counsel for the applicants submitted that the applicants had left the police chowki on completion of their duty hours after handing over the custody of the deceased to the A.P.I. They were unaware of the incident that happened subsequently. They assured to cooperate with the investigating agency to the best of their capacity. Initially, there were proclamations issued against present applicants and therefore, this Court had not granted ad-interim relief. However, after proper inquiry into all evidences, the Court opined that the applicants herein deserved ad-interim relief as they had undertaken to cooperate with the investigating agency to the best of their capacity. [Nitin Chandrrkant Kadam v.  State of Maharashtra, 2016 SCC OnLine Bom 9850, order dated 30.11.2016]

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