When an Accused is Absconding and is declared as Proclaimed Offender, there is no question of giving him the benefit of Section 438 CrPC: Supreme Court

The Supreme Court ruled that when an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 CrPC.


The complainant alleged that he was forcefully kidnapped from Motimahal Restaurant, Sadar, Nagpur; and was intimidated with a knife and a ransom of Rs. 20 lakhs was demanded by the accused persons. The complainant alleged that three of the accused persons were known to him, being the present appellant Abhishek Singh, as also one Ankit Pali and another Roshan Sheikh. The complainant also alleged that the accused persons asked him to give them papers of his ancestral property and to hand over the shop; threatened him from time-to-time to kill; forcefully took his son in a vehicle; created terror of killing him and his son; and forcefully took out an amount of Rs. 9,000 to Rs. 11,000 from his pocket. The complainant further alleged that the accused persons visited his house from time-to-time demanding money; and that out of fear, he had left his house and was staying at other places. 


Senior counsel appearing for the appellants contended that Maharashtra Control of Organised Crime Act, 1999 is of drastic consequences where not only minimum period of sentence is provided under Section 3, several measures of extraordinary nature have been provided, like interception of communications (Section 14), special rules of evidence overriding ordinary rules as contained in CrPC and the Indian Evidence Act, 18726 , with converse burden of proof on the accused (Section 17), use of confessions made to the police officer (Section 18), forfeiture and attachment of property (Section 20) and modified application of CrPC with several protections being overridden. 

He submitted that looking at the drastic and serious consequences, the Court has clearly provided that the provisions of MCOCA have to be strictly construed by the Courts and the authorities concerned must strictly adhere to the same. 

He furher contended that even as per the stand of the respondents, the allegations concerning pecuniary benefit occur only in the present case and not in other cases. 

Counsel appearing for the respondent-State contended that the appellant is not entitled for any relief from the Court under Article 136 of the Constitution of India in view of the fact that he has been declared an absconder under Section 82 CrPC read with Section 20(3) MCOCA. 

He submitted that all the submissions concerning personal liberty with the application of MCOCA deserve to be rejected when the appellant himself has chosen not to submit to the law.  


The division bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose said that as regards the implication of proclamation having been issued against the appellant, it has no hesitation in making it clear that any person, who is declared as an ‘absconder’ and remains out of reach of the investigating agency and thereby stands directly at conflict with law, ordinarily, deserves no concession or indulgence. 

The  court observed that in relation to the indulgence of pre-arrest bail in terms of Section 438 CrPC, the Court has repeatedly said that when an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 CrPC. 

The court held that the challenge to the judgment as passed by the High Court, and to the sanctioning order was required to be rejected when the appellant had indeed been declared absconder. 

Case title: Abhishek v/s State of Maharashtra & Ors.

Citation: CRIMINAL APPEAL NO. 869 OF 2022

Click here to read the Order/Judgment

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