Accused of witch-hunt, they dodged court 6 times. Then the judge dropped a bombshell.

They were accused of calling a 70-year-old a witch, shoving cow dung in her mouth, and tearing her clothes. Then they vanished from court for two years. On a March morning in 2024, the Supreme Court bench of Justice C.T. Ravikumar and Justice Sanjay Kumar looked at a stack of case files — six summons, two bailable warrants, two non-bailable warrants, and a proclamation declaring the accused absconders — and delivered a judgment that every lawyer in the country would need to read twice.

The day cow dung became evidence

In February 2020, in a village in East Champaran, Bihar, Jagmati Kunwar — a 70-year-old woman — was allegedly set upon by members of the Upadhyay family. The accusation against her: she was a witch. The alleged response: cow dung forced into her mouth, family members who tried to intervene assaulted, and the clothes of two women torn off.

The case was filed under the Prevention of Witch (Daain) Practices Act, 1999 — a Bihar law that criminalises the practice of branding someone a witch and subjecting them to harassment or violence. It was also filed under several sections of the Indian Penal Code, including Section 354B (assault or use of criminal force to a woman with intent to disrobe her). An FIR (a written complaint that starts a police investigation) was registered at Govindganj Police Station on January 1, 2020, based on directions from the Chief Judicial Magistrate.

But something strange happened next. The police investigation ended with a charge sheet filed on August 8, 2022, against only one of the 13 accused — and that too for minor offences: wrongful restraint under Section 341 IPC, assault under Section 323 IPC, and criminal intimidation under Section 504 IPC. The trial court, however, took a different view. On February 20, 2021 — before the charge sheet was even filed — it had already taken cognizance (formal notice that the court accepts the case) against all 13 accused for the more serious offences under the Witch Practices Act and Section 354B IPC. Summons were issued.

Eleven of the 13 accused never showed up.

Six summons. Two warrants. Two more warrants. One proclamation.

Between April 2021 and January 2023, the trial court tried everything. First came summons on April 12, 2021 — ignored. Then bailable warrants (a warrant that allows the person to be released on bail after arrest) on April 12, 2022 — ignored. Then non-bailable warrants (a warrant that requires arrest and court custody) on November 3, 2022 — also ignored. The accused filed and withdrew a bail-cum-surrender application, apparently fearing arrest. They then approached the Sessions Court for anticipatory bail (pre-arrest bail, where a person asks the court to order that they not be arrested if they surrender). The Sessions Court rejected it on September 27, 2022.

On January 4, 2023, the trial court issued a proclamation under Section 82 of the CrPC (a public notice declaring a person an absconder and giving them 30 days to appear, failing which their property can be attached under Section 83 CrPC). The accused were now officially fugitives from the law.

They still didn't appear. Instead, they went to the Patna High Court for anticipatory bail. The High Court dismissed their application on April 4, 2023. So they knocked on the Supreme Court's door.

"We were applying for bail — how could they declare us absconders?"

The appellants — Srikant Upadhyay and others — raised a clever argument. They said: we filed an anticipatory bail application before the Sessions Court, and then before the High Court. While that application was pending, the trial court had no business issuing a proclamation under Section 82 CrPC. And once you're declared an absconder, you can't get anticipatory bail — so the trial court's action effectively destroyed their right to seek pre-arrest protection.

The State of Bihar countered with a simpler, grimmer picture: these people had been dodging court for two years. They had ignored every single legal process. They had filed and withdrawn applications only to avoid arrest. They could not now claim that the court had acted unfairly by declaring them absconders.

The core legal question was this: does the mere pendency of an anticipatory bail application — without any interim order granting protection — stop a trial court from issuing a proclamation under Section 82 CrPC? And if the proclamation has been issued, does that automatically disqualify the accused from seeking anticipatory bail?

The bombshell

The Supreme Court answered both questions against the appellants. The judgment, delivered on March 14, 2024, held that in the absence of any interim order, the mere pendency of an anticipatory bail application creates no statutory inhibition on the trial court's power to issue a proclamation under Section 82 CrPC or to attach property under Section 83 CrPC.

More importantly, the court held that a person declared an absconder under Section 82 CrPC is not entitled to anticipatory bail. The power under Section 438 CrPC (the provision for anticipatory bail) is extraordinary, the court said, and is meant to be exercised only in exceptional cases. A person who has been continuously defying court orders and absconding from justice does not qualify as an exceptional case.

The court also rejected the argument that filing an anticipatory bail application through an advocate counts as "appearance" before the court. Physical appearance is required, the bench held. A lawyer cannot stand in for a person who is evading arrest. The proviso to Section 438(1) CrPC — which permits arrest where no interim order is passed or the application is rejected — further supported this position.

The court clarified that a person who ignores summons, bailable warrants, non-bailable warrants, and a Section 82 proclamation cannot claim that the trial court acted prematurely. The trial court's power under Sections 82 and 83 CrPC is independent of any pending anticipatory bail application, unless an interim order specifically restrains the court from proceeding.

Three judgments that sealed their fate

The Supreme Court relied on its own earlier decisions. In Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730, the court had held that a person against whom a non-bailable warrant is pending cannot claim anticipatory bail. In State of Madhya Pradesh v. Pradeep Sharma (2014) 2 SCC 171, the court had reiterated that the power under Section 438 CrPC is of an exceptional nature and should be exercised only in cases where no prima facie case is made out or where the accusation is malafide.

The court also cited Prem Shankar Prasad v. State of Bihar (2022) 14 SCC 516, which dealt with a similar situation where accused persons had evaded process and then sought anticipatory bail. The consistent thread across these cases: you cannot run from the law and then ask the law to protect you from itself.

Additional precedents cited included HDFC Bank Ltd. v. J.J. Mannan (2010) 1 SCC 679, which dealt with the effect of non-appearance, and Savitaben Govindbhai Patel v. State of Gujarat and Shrenik Jayantilal Jain v. State of Maharashtra (2014 SCC Online Bom 549), which supported the position that absconders forfeit their claim to anticipatory bail.

THE PLAY: If your client has been declared an absconder under Section 82 CrPC, do not waste time on anticipatory bail — the law is now settled that it will not be granted. Surrender and seek regular bail instead.

What this means for trial courts

The judgment has practical implications for trial courts across the country. The court made clear that a trial court need not wait for the disposal of an anticipatory bail application — especially one filed without any interim protection — before issuing a proclamation under Section 82 CrPC. The mere filing of such an application does not freeze the proceedings.

The court also clarified that filing an anticipatory bail application through an advocate cannot be treated as appearance before the court for the purposes of Sections 82/83 CrPC. Physical appearance is mandatory. This closes a loophole that accused persons had been using to argue that they had "appeared" through counsel and therefore could not be declared absconders.

Furthermore, the court noted that a person who ignores a proclamation under Section 82 CrPC commits an offence under Section 174A IPC, which carries a punishment of up to seven years imprisonment. This means the accused in this case now face additional criminal liability for their non-appearance.

The full ratio: five principles

The ratio decidendi of the judgment can be distilled into five clear principles:

First, a person against whom a non-bailable warrant is pending and a proclamation under Sections 82/83 CrPC has been issued is not entitled to anticipatory bail. The power under Section 438 CrPC is extraordinary and to be exercised only in exceptional cases.

Second, in the absence of any interim order, the mere pendency of an application for anticipatory bail shall not bar the trial court from issuing a proclamation under Section 82 CrPC or taking steps under Section 83 CrPC in accordance with law.

Third, filing an anticipatory bail application through an advocate cannot be treated as appearance before a court by a person against whom proceedings under Sections 82/83 CrPC have been instituted. Physical appearance is required.

Fourth, a court is not bound to pass an interim order of protection when adjourning an anticipatory bail application. The proviso to Section 438(1) CrPC permits arrest where no interim order is passed or the application is rejected.

Fifth, a person who has been continuously defying court orders and absconding from justice cannot claim the equitable relief of anticipatory bail, which is meant for those who cooperate with the legal process.

What the 70-year-old never got to see

The Supreme Court dismissed the appeal, holding that the appellants' actions were "nothing short of defying the lawful orders of the Court and attempting to delay the proceedings." The 70-year-old woman who was allegedly branded a witch and had cow dung forced into her mouth never got to see her accusers face a judge — because they chose to run, and the law chose to let them face the consequences of running.