Supreme Court of India: “An Absconder Who Has Evaded Investigation for Years Cannot Claim Pre-Arrest Protection Merely Because Co-Accused Were Acquitted” — Anticipatory Bail Set Aside in Murder Case

In Balmukund Singh Gautam v. State of Madhya Pradesh, the Supreme Court overturned a High Court order that granted anticipatory bail under Section 482 BNSS (old Section 438 CrPC) to a person accused of murder. The accused had disappeared immediately after the FIR was registered in 2019 and remained untraceable until 2025. He applied for anticipatory bail only after the trial court acquitted his co-accused for lack of evidence.

The Supreme Court condemned this practice and laid down the following principles:

• Absconders are generally not entitled to anticipatory bail: Evading investigation for years shows a disregard for the legal process and undermines the justice system.
• Co-accused acquittal does not create parity: Each accused’s role and conduct during investigation are different. The acquittal of co-accused does not automatically entitle an absconder to bail.
• Exceptional cases only: Bail may be granted only where the FIR and case diary prima facie show no case against the absconder, which was absent here.

The Court set aside the bail order and directed the accused to surrender. This ruling binds all courts in UP, including the Allahabad High Court Lucknow Bench.

Many accused persons in UP believe that once their co-accused are acquitted, they automatically become entitled to bail. The Supreme Court in Balmukund Singh Gautam rejected this argument. The Court held that the concept of parity applies only when all accused face the same evidence and have participated in the trial. An absconder who never surrendered cannot claim parity because he has not submitted to the jurisdiction of the court.

Key factors considered by the Court:

1. Duration of evasion: The longer the absconder stays away, the weaker his claim for anticipatory bail.
2. Conduct during investigation: If the accused deliberately avoided summons or proclamation under Section 106/107 BNSS (old Section 82 CrPC), he loses equitable relief.
3. Strength of prima facie case: The court must examine whether the absconder’s alleged role is distinct from acquitted co-accused.

In Srikant Upadhyay v. State of Bihar (2024) 10 SCC 202, the Supreme Court further clarified that the mere pendency of an anticipatory bail application (without interim protection) does not prevent a court from issuing a proclamation against an absconder. This means an absconder cannot stall proceedings by filing a bail application.

The new criminal procedure codes (BNSS, 2023) have renumbered the provisions but kept the substance largely intact. Below is a comparison of old CrPC and new BNSS sections relevant to anticipatory bail and absconders:

For an absconder, the most important change is that Section 482 BNSS now requires the court to consider whether the applicant has cooperated with the investigation. The Supreme Court in Balmukund Singh Gautam held that a person who has concealed himself for years cannot claim anticipatory bail under this provision.

If you are an accused in a murder case in UP and have been absconding, the path to anticipatory bail has become much narrower after the Supreme Court’s 2026 judgment. The following table summarises the estimated costs and timelines for filing a bail application in the Allahabad High Court Lucknow Bench or the Supreme Court:

However, after the Balmukund Singh Gautam ruling, a recommended strategy is:

• Do not rely on co-accused acquittal: Instead, focus on showing that the absconder was not aware of the FIR or had a valid reason for absence (e.g., fear of false implication).
• Surrender voluntarily: In many cases, surrendering and seeking regular bail under Section 484 BNSS (High Court bail) may be more viable than pursuing anticipatory bail.
• Document innocence: Collect evidence that the absconder had no role in the offence, even if co-accused were acquitted.

If you or a family member has evaded investigation for a significant period and now wishes to apply for anticipatory bail in Lucknow, follow these steps with the assistance of an experienced criminal lawyer in Lucknow:

1. Retain a lawyer: Contact a lawyer who practices at the Allahabad High Court Lucknow Bench and has expertise in bail matters under Section 482 BNSS.
2. Collect case documents: Obtain the FIR, case diary, and any orders declaring you an absconder or issuing proclamation under Section 106 BNSS.
3. Draft a bail application: The application must explain the reasons for absence, any change in circumstances (other than co-accused acquittal), and why custodial interrogation is not required.
4. File before the appropriate court: Anticipatory bail under Section 482 BNSS can be filed before the Sessions Court or directly before the High Court. In serious offences like murder, it is advisable to file before the High Court.
5. Argue on merits: Your lawyer must demonstrate that the FIR does not prima facie disclose your involvement, and that you are willing to cooperate with the investigation now.
6. If rejected, surrender and seek regular bail: If anticipatory bail is denied, surrender immediately and apply for regular bail under Section 484 BNSS. The High Court has wide powers to grant bail even after rejection by lower courts.

Remember: The Supreme Court has made it clear that delay in approaching the court weakens your case. Act promptly.

Advocate Onkar Pandey is a practicing lawyer at the Allahabad High Court Lucknow Bench with over 25 years of experience in criminal law, bail matters, FIR quashing, and family law. Enrolled with the Bar Council of Uttar Pradesh (No. UP/4825/1999), he provides expert legal guidance to clients across Uttar Pradesh from his chamber at A-406, High Court, Lucknow. For a consultation on anticipatory bail and criminal defense, contact Advocate Onkar Pandey at +91 98392 71553.