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anticipatory bail for proclaimed offenders

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” 82 Proclamation for person absconding.- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:-

(i) (a) it shall be publicly read in some conspicuous part of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also,if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Section 302,304,364,367,382,392,393,394,395,396,397,398,399,400,402,436,449,4 59 or 460 of the Indian Penal Code ( 45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1). ]”

  1. Sub-section (4) of Section 82 of the Cr.P.C. appears to be applicable in respect of a person accused of an offence punishable under specific Sections of the Indian Penal Code indicated and the word proclaimed offender appears in the said Sub- Section (4) of Section 82 of the Cr.P.C. Some discretion has been given to court to hold inquiry before pronouncing any accused as proclaimed offender under sub-section (4) of Section 82 of the Code. Sub-Section (5) of Section 82 Cr.P.C. indicates that sub- section (2) and sub-section (3) shall apply to declaration made by the Court under sub- section (4) as they applied to the proclamation published under sub-section (1). In the present case we are not concerned with sub-section (4) because the petitioner is not an accused of the offence indicated under said sub-section (4) of Section 82 of the Code.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

A.B.A.No. 4674 of 2012

Mahendra Kumar Ruiya.          … … …  …  …Petitioner

-Versus-

  1. State of Jharkhand through.
  2. Gautam Kumar Dubey. …  …  …Opp. Parties

———-

CORAM:         THE HON’BLE MR. JUSTICE D.N.UPADHYAY

 

For the Petitioner:         Mr. Prashant Pallav, Advocate.

For the State               A.P.P.

For the O.P.No.2:           Onkar Nath Tiwary, Advocate.

———-

C.A.V. on 14.06.2013:                       Pronounced on 27.06.2013

———-

D.N.Upadhyay,J.        The present application for grant of anticipatory bail has been filed on

behalf of Mahendra Kumar Ruiya in connection with P.C.R. No.416 of 2006,

corresponding to T.R.No.991 of 2012 under Sections 406/420 of the Indian Penal Code,

pending in the Court of the Chief Judicial Magistrate, Deoghar.

  1. The prosecution case as it appears from the complaint in brief is that the

petitioner and co-accused Shiv Kumar Ruiya have been appointed as receiver by the

Calcutta High Court under the A.P.O.T. No. 11/1997 ( Suit No.70/1966) in respect of

trust property of Ruiya Dharamsala Building appertaining to vacant land of Mouza

Jasidih No. 118 and Jasidih Bazar plot no. 28,29, 662/716 and 665 District Deoghar. An

advertisement for sale of Ruia Dharamsala’s vacant land was published whereafter the

complainant expressed his willingness to purchase the said property for a valuable

consideration of Rs. 1,05,00,000/- and out of said consideration amount, a sum of

Rs.7,00,000/- was paid as earnest money to the accused persons and after that they

entered into an agreement dated 18.10.2003. The accused persons had promised to

obtain permission from Calcutta High Court within three months but they did not do so

and retained the earnest money with them. The complainant made several approach to

the accused persons but they postponed the execution of sale-deed on one ground or the

other. Lastly the complainant made approach to Calcutta High Court and he could learn

that the accused persons had not taken step for seeking permission to sell the aforesaid

property in favour of the complainant. Since the complainant felt himself cheated by the

accused persons, he lodged a complaint in which cognizance was taken on 17.9.2008

and the accused persons including the petitioner were directed to face trial under

Sections 406/420 of the Indian Penal Code. Thereafter summons were issued but the

accused persons did not appear. They preferred Cr. Revision No. 154 of 2008 before

the Sessions Court which stood dismissed on 20.8.2010. When the accused persons did

not appear, warrant of arrest non-bailable was issued against them on 13.12.2010. Even

after issuance of warrant of arrest, they did not appear and then proclamation under

Section 82 Cr.P.C. was ordered to be issued. The present petitioner then preferred an

application for grant of anticipatory bail vide A.B.P.No. 628 2012 before the learned

Sessions Judge which was dismissed with certain observation on 16.10.2012 and the

petitioner was directed to surrender before the court-below within a period of three

weeks from the date of said order for seeking regular bail. When the petitioner did not

2.

appear in person before the court-below, process under Section 83 Cr.P.C. was directed

to be issued on 22.10.2012 thereafter the petitioner has preferred present application for

grant of anticipatory bail before this Court on 17.12.2012.

  1. It is submitted that the petitioner had not signed any document or

agreement in favour of the complainant nor he has received a single farthing from him.

The details of payment as stated in the agreement is Rs. 5,04000/- in cash and Rs.

1,96,000/- through bank draft in the account of receiver of which Shiv Kumar Ruiya

and Mahendra Kumar Ruiya are joint signatory. It is stated that no such demand draft

was ever credited in the account of receiver and therefore, the petitioner could not be

fastened with any liability. So far as cash amount is concerned, he had not given any

receipt against the said amount. It is also pointed out by referring Annexure-8 of

supplementary affidavit dated 9.4.2013 that the Hon’ble Calcutta High Court vide order

dated 20th February, 2003 had made it clear that filing of account by Mahendra Kumar

Ruiya (petitioner) is hereby dispensed with.

  1. Learned Counsel has submitted that alleged agreement was executed on

18.2.2003

but the Complainant never approached the Calcutta High Court for seeking suitable direction for transfer of the land nor he has filed any suit for specific performance of contract rather he has filed a criminal case in the year 2006 vide P.C.R.No.416 of 2000.

  1. On the other hand learned Counsel for the complainant has vehemently opposed the prayer for bail and referred the judgment reported in (2012) 8 Supreme Court Case 730 “Lavesh Vrs. State (NCT of Delhi”. It was submitted that the petitioner is not entitled for anticipatory bail since he has been declared proclaimed absconder in terms of Section 82 of the Cr.P.C. Since the accused persons were concealing themselves and evading their appearance, process under Section 83 Cr.P.C. was also issued against them. Furthermore, the petitioner had acknowledged the execution of agreement for sale of the property of Ruiya Dharamsala and the demand draft for Rs.1,96,000/- was issued in the joint name of both the receiver appointed by the Calcutta High Court.
  2. In reply to the argument advanced on behalf of the complainant, learned Counsel appearing for the petitioner has submitted that the petitioner was never declared proclaimed offender as required under sub-section (4) of Section 82 of the Cr.P.C. The provisions contained under sub-section (2) & (3) of Section 82 of the Cr.P.C. have not been complied with. The petitioner had never been concealing himself nor evading his appearance rather he had preferred Cr. Revision against the order of cognizance dated 17.9.2008 and after disposal of said revision application, he preferred application for grant of anticipatory bail and thereafter present application before this Court. Under such circumstances it could not be said that he had been concealing himself or evading his appearance. He has also referred a judgment of Madrash High Court dated 8.12.2010 vide CRL O.P.No.18861/2010 ” Anandan @ Duglas Devananda Vrs. The State by Inspector of Police.
  3. The rival submission has raised a question whether a person, accused of an offence against whom process under Section 82 Cr.P.C. has been issued, shall be debarred from getting benefit of Section 438 Cr.P.C.?
  4. Before adverting any opinion, I would like to quote Section 438(1) of the Cr.P.C. which reads as under:-

” Direction for grant of bail to person apprehending arrest.-(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.”

It makes it clear that in a non-bailable offence if a person has reason to believe that he may be arrested, he is free to apply to the High Court or the Court of Session praying that in the event of such arrest, he shall be released on bail.”

  1. In the given facts and circumstances, the grounds for consideration of anticipatory bail enumerated under clause (iii) of Section 438 (1) ‘the possibility of the applicant to flee from justice’ appears to have been attracted. The petitioner has filed entire order-sheet passed in connection with Complaint Case being P.C.R. No. 416 of 2006. As per order dated 21.08.2012, direction to issue processes under Sections 82 & 83 Cr.P.C. was passed when the petitioner could not be arrested even after issuance of warrant of arrest non-bailable. In view of the order dated 21.8.2012 only process under Section 82 Cr.P.C. against the petitioner was issued on 28.8.2012. When the anticipatory bail application preferred by the petitioner vide A.B.P.No. 628 of 2012 was disposed of by the learned Sessions Judge, the learned Magistrate has directed to issue process under Section 83 Cr.P.C. as against the accused persons including the petitioner on 22.11.2012.
  2. Since the liberty given to an accused under Section 438 Cr.P.C. is going to be curtailed, if process under Section 82 Cr.P.C. against him has been issued, I would like to discuss the provisions and requirement contained under Section 82 of the Cr.P.C. which reads as under:-

” 82 Proclamation for person absconding.- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:-

(i) (a) it shall be publicly read in some conspicuous part of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also,if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Section 302,304,364,367,382,392,393,394,395,396,397,398,399,400,402,436,449,4 59 or 460 of the Indian Penal Code ( 45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1). ]”

  1. Sub-section (4) of Section 82 of the Cr.P.C. appears to be applicable in respect of a person accused of an offence punishable under specific Sections of the Indian Penal Code indicated and the word proclaimed offender appears in the said Sub- Section (4) of Section 82 of the Cr.P.C. Some discretion has been given to court to hold inquiry before pronouncing any accused as proclaimed offender under sub-section (4) of Section 82 of the Code. Sub-Section (5) of Section 82 Cr.P.C. indicates that sub- section (2) and sub-section (3) shall apply to declaration made by the Court under sub- section (4) as they applied to the proclamation published under sub-section (1). In the present case we are not concerned with sub-section (4) because the petitioner is not an accused of the offence indicated under said sub-section (4) of Section 82 of the Code.

 

Therefore, I have to see whether provisions against issuance of proclamation u/s 82 sub-section (1) (2) & (3) have properly been complied with or not. Sub-section (1) empowers the Court to issue written proclamation with certain direction to appear at a specified place and a specified time against a person who is either absconded or concealing himself so that the warrant issued against him could not be executed. Sub-section (2) of Section 82 of the Code indicates the manner in which a proclamation shall be published or executed. In this connection compliance of Sub- Section (3) of Section 82 of the Code is very much important. This sub-section speaks about the subjective satisfaction of the Court and such subjective satisfaction of the Court must be reduced into writing to the effect that the proclamation was duly published on a specific date in the manner specified in clause (i) of sub-section (2) and that shall be the conclusive evidence that requirement of this section had been complied with and the proclamation was duly published. Such statement recorded in writing shall be the consequence for the next step for issuance of process under Section 83 of the Cr.P.C., therefore, before proceeding with provision contained under Section 83 of the Cr.P.C. the Court issuing a proclamation under Section 82 must record a reason in writing that even after issuance of proclamation the accused did not comply the direction and remained absconding or concealing himself or evading his appearance. The primary meaning of the word abscond is to hide and when a person is hiding from the place of his residence he is said to be absconder. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. In that view of the matter, I feel that strict compliance of sub-section (3) of Section 82 Cr.P.C. is very much required for declaring any accused as absconder. I would further like to explain that Section 82 Cr.P.C. has mainly three parts. As per first part of the Section it is well settled that issuance of warrant is condition precedent for issuance of process of proclamation under Section 82 of the Code. The Court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself so that such warrant cannot be executed. Second part suggest as to how proclamation has to be given effect or published to make the accused acquaint that his appearance is required in connection with particular case before a particular Court. The third part as indicated under sub-section (4) of Section 82 of the Cr.P.C. gives more discretion to make inquiry against an accused who has committed offence indicated under sub-section (4). After recording reasons the Court can declare an accused of such offence as proclaimed offender. To make the view more clear, I would like to refer Section 174 (A) I.P.C. under which disobedience of proclamation has been made punishable, which reads as follows:-

 

” 174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure, 1973 ( 2 of 1974) shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”

  1. This inserted Section 174A of the I.P.C. has two parts ‘the first part of the Section relates for the punishment against a person against whom proclamation has been issued and published under sub-section (1) & (2) of Section 82 of the Code and the punishment is up-to three years or with fine or with both whereas ‘the second part of the offence relates to a declaration made under sub-section (4) of Section 82 under which a person has been pronounced as proclaimed offender and the punishment is severe than the first part which may extend to 7 years and shall also be liable to fine’. Now I feel it desirable to refer paragraph 11 & 12 of the judgment “Lavesh Vrs. State (NCT of Delhi” ( supra).
  2. In view of the observation made in para 12 of the said judgment it appears that a person against whom proclamation under Section 82 Cr.P.C. has been issued is not entitled to the relief of anticipatory bail but then proper compliance of Section 82 as discussed above is very much essential.
  3. Now coming to the facts of this case and the orders passed in P.C.R. No. 416 of 2006 I find that proclamation as required under Section 82 Cr.P.C. has properly not been done and no statement as required under sub-section (3) of Section 82 Cr.P.C. has been recorded. The issuance of process under Section 83 Cr.P.C. vide order dated 22.11.2012 also do not appear to be in accordance with law because the requirement of Section 82 Cr.P.C. has not properly been complied with.

 

  1. Let us come to the facts of the case from which it is clear that the complainant instead of filing any application before the Hon’ble Calcutta High Court informing about the agreement executed between the complainant and the accused persons for seeking any relief, lodged the present criminal case. The complainant has failed to bring on record that the petitioner had received earnest money in cash from him. So far as demand draft is concerned it was submitted that the petitioner had not deposited the same for its encashment.
  2. In the aforesaid circumstances, the petitioner is directed to surrender before the court-below within three weeks from today and if he does so he shall be released on bail on furnishing bail bond of Rs. 10,000/- ( Ten thousand) with two sureties of like amount each to the satisfaction of the Chief Judicial Magistrate, Deoghar in connection with P.C.R. Case No. 416 of 2006, corresponding to T.R. No. 991 of 2012, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.

 

[D.N.Upadhyay,J.] P.K.S./N.A.F.R.

 

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From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.

This judgment was followed in the case of State of Madhya Pradesh Vs. Pradeep Sharma (supra) wherein after quoting the aforesaid paragraph in the case of Lavesh (supra), it was held as follows:-

“It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail”.

The Hon’ble Supreme Court went on to hold that “in such serious offences particularly, the respondent-accused being proclaimed offender, we are unable to sustain the impugned order of granting the anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.” The ultimate conclusion, which can be drawn from the judgments quoted above, is that once process under section 82 Cr.P.C. has been issued , an anticipatory bail application becomes non-maintainable. Although it has been strenuously argued by Mr. Indrajit Sinha, learned counsel for the petitioner, that the said judgments are applicable in the facts and circumstances of each case and no uniform applicability can be made in cases of anticipatory bail but this contention of learned counsel for the petitioner is rejected as it has specifically been held by the referred judgments that once an accused has been declared as an absconder /proclaimed offender in terms of Section 82 Cr.P.C. is denied the consideration of anticipatory bail. Therefore, the first question which has been raised in this application is answered against the petitioner.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

A.B.A. No. 3493 of 2015

 

Kumar Anuhav, Son of Sri Arun Kumar Srivastava, Resident of 15/C,

Park Road, D1/A, Road No. 1, Ashok Nagar, P.O. and P.S. Argora,

District-Ranchi.                           ……..Petitioner

Versus

  1. The State of Jharkhand.
  2. Reena Kumari Sinha, D/o Bipin Bihari Sinha,presently residing

at Maharajganj Road, in front of Punjab National Bank, New

Area, P.S. Town, Town & District- Aurangabad ( Bihar).

…Opposite Parties

——–

Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY

——–

For the Petitioner     : Mr. Indrajit Sinha, Advocate

For the State          : APP

For the O.P. No. 2     : Mr. R.S. Mazumdar, Sr. Advocate

——–

06/06.11.2015

Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. R.S. Mazumdar, learned senior counsel for O.P. No. 2.

  1. The petitioner apprehends his arrest in connection with Doranda (Argora) P.S. Case No. 196 of 2015, corresponding to G.R. Case No. 1920 of 2015, registered for the offence punishable under Sections 498A of the Indian Penal Code and sections 3/4 of Dowry Prohibition Act.
  1. Two pertinent questions have arisen in this anticipatory bail application. The first being whether an anticipatory bail application can be maintainable once process under Section 82 Cr.P.C. has been issued. The second question is whether this Court under the provision of Section 438 of the Code of Criminal Procedure can look into the legality or otherwise of issuance of process under sections 82 and 83 of Cr.P.C.
  1. The petitioner has been made an accused for an offence punishable under section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
  1. Learned counsel for the petitioner before adverting to the contentions he has raised has given a factual matrix of the case though not on merits and has mainly concentrated on the fact that the petitioner had all along cooperated with the Investigating Officer and therefore there was no question of issuance of any process under section 82 Cr.P.C. Submission has been advanced to the effect that on 1.4.2015, the FIR was instituted and on 4.4.2015, notices were issued under section 41A of the Cr.P.C. to the petitioner and subsequent thereto on 6.4.2015 mention has been made about the supervision report dated 2.4.2015 wherein a direction was given to arrest the petitioner. Pursuant to receiving notice under section 41A of Cr.P.C., the petitioner had appeared before the Investigating Officer on 8.4.2015. On 15.04.2015, requisition was made by the investigating officer for issuance of process under section 82 Cr.P.C.. The anticipatory bail application before the learned Sessions Judge was dismissed on 1.9.2015 and the anticipatory bail application preferred before this Court was presented on 9.9.2015 and on the same date itself, the process under section 82 Cr.P.C. was issued. It has been submitted that on 30.06.2015 and on other dates, the petitioner had made himself present before the Investigating Officer. Learned counsel for the petitioner after giving a brief background has tried to substantiate his argument by referring firstly to the judgments of the Hon’ble Supreme Court in the case of Lavesh Vs. State (NCT of Delhi) reported in (2012) 8 SCC 730. He has submitted that in the facts and circumstances of that case, it was held that considering the conduct of the petitioner as he was not amenable for investigation, he was declared as an absconder and therefore there was no question of grant of anticipatory bail. Learned counsel has also referred to the case of State of Madhya Pradesh Vs. Pradeep Sharma, reported in (2014) 2 SCC 171, wherein also as has been submitted by the learned counsel for the petitioner that the accused persons were all along absconding and were not cooperating with the investigation. Learned counsel further submits that declaring an accused as an absconder/proclaimed offender, the same could be one of the grounds for non consideration of anticipatory bail but it cannot be the sole ground while declaring the anticipatory bail application as not maintainable. Reference has also been made in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujrat and Ors, reported in AIR 2015 SC 3090, wherein the principles governing the grant of bail has been enumerated at paragraph 23 of the said judgment. Submission has been advanced by the learned counsel for the petitioner that there cannot be any strait jacket formula for consideration/non consideration of grant of anticipatory bail and the judgements in the case of Lavesh (supra) and Pradeep Sharma (supra) do not lay down that in all such cases, in which process under section 82 Cr.P.C. has been initiated, the anticipatory bail application shall not be maintainable. With respect to the other contentions, which have been advanced by the learned counsel for the petitioner, the same are based on a judgement of this Court in the case of Mahendra Kumar Ruiya Vs. State of Jharkhand & Anr, reported in 2013 3 JLJR 407, wherein, in an anticipatory bail application consideration was also made as to whether compliance with mandatory requirements of law prior to issuance of process under section 82 Cr.P.C. has been followed or not. Learned counsel has also referred to the provisions of Sections 482, 483 of Cr.P.C. and Section 227 of the Constitution of India to submit that the power of superintendence lies in the High Court and therefore even in an application under section 438 Cr.P.C. before the High Court, the legality or otherwise of issuance of process under section 82 Cr.P.C. can be looked into and no separate proceeding is required to be instituted.
  1. Mr. R.S. Mazumdar, learned senior counsel for O.P. No. 2, has countered the arguments advanced by the learned counsel for the petitioner with respect to the first question formulated and has submitted that the judgments rendered by the Hon’ble Supreme Court in the case of Lavesh (supra) and Pradeep Kumar Sharma create a binding precedent and the law laid down has to be interpreted in the strict sense of the term and there cannot be any liberal interpretation of the same. It has been submitted that whatever may be the facts and circumstances of the cases referred to by learned counsel for the petitioner, the only common thread binding both the judgements are that an anticipatory bail application shall not be maintainable solely on the ground of issuance of process under section 82 Cr.P.C. and the same cannot be circumvented by contending that it may be an additional ground for not considering the anticipatory bail application of an accused. Learned senior counsel has submitted that there is no question of considering an anticipatory bail application once process under section 82 Cr.P.C. has been issued and the Court is not to see the conduct of an accused and whether he has cooperated with the investigating agency or not. In this context, learned senior counsel has referred to the anticipatory bail application filed on behalf of the petitioner praying for stay of warrant of arrest as well as the supplementary affidavit and has submitted that the petitioner had appeared before the investigating officer only with an umbrella of interim protection over him. It cannot be deduced in such circumstances that the petitioner had cooperated with the investigating agency. Learned senior counsel further submits that the petitioner has merely tried to distinguish the factual aspects of the case of Lavesh(supra) and Pradeep Sharma (supra) but has not been able to distinguish that the law laid down by the Hon’ble Supreme Court is not applicable in the facts and circumstances of the case at hand. The contention with respect to second aspect of this application has been answered by the learned senior counsel for the opposite party no. 2 by making a reference to the case of Sheikh Anwar @ Sk. Anwar Vs. State of Jharkhand reported in 2014 (4) JLJR, wherein it was held that in view of the specific provision in the Code of Criminal Procedure dealing with a specific subject, the other provisions of the Code cannot be resorted to by the Courts. It has, therefore, been submitted that in an application under section 438 Cr.P.C. before a High Court recourse cannot be taken by challenging the illegality of issuance of process under section 82 Cr.P.C., which is an altogether different subject matter for which remedies are available in the Code itself. Learned senior counsel, therefore, submits that in either of the circumstances, the present anticipatory bail application is liable to be dismissed on the question of maintainability itself.
  1. To answer the first question, it is necessary to refer to the case of Lavesh (supra) wherein it was held as follows:-

“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.

This judgment was followed in the case of State of Madhya Pradesh Vs. Pradeep Sharma (supra) wherein after quoting the aforesaid paragraph in the case of Lavesh (supra), it was held as follows:-

“It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail”.

The Hon’ble Supreme Court went on to hold that “in such serious offences particularly, the respondent-accused being proclaimed offender, we are unable to sustain the impugned order of granting the anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.” The ultimate conclusion, which can be drawn from the judgments quoted above, is that once process under section 82 Cr.P.C. has been issued , an anticipatory bail application becomes non-maintainable. Although it has been strenuously argued by Mr. Indrajit Sinha, learned counsel for the petitioner, that the said judgments are applicable in the facts and circumstances of each case and no uniform applicability can be made in cases of anticipatory bail but this contention of learned counsel for the petitioner is rejected as it has specifically been held by the referred judgments that once an accused has been declared as an absconder /proclaimed offender in terms of Section 82 Cr.P.C. is denied the consideration of anticipatory bail. Therefore, the first question which has been raised in this application is answered against the petitioner.

  1. As regards the second contention of learned counsel for the petitioner with respect to looking into the legality or otherwise of issuance of process under section 82 Cr.P.C. in an anticipatory bail application, there are conflicting judgments, which have been referred to by the learned counsel for both the sides. In the case of Mahendra Kumar Ruia (supra), the Hon’ble Court was considering the question as to whether a person-accused of an offence, against whom, process under section 82 Cr.P.C. has been issued shall be debarred from getting the benefit of Section 438 of Cr.P.C. The Hon’ble Court went on to consider as to whether the provisions against issuance of proclamation under Section 82 Cr.P.C. had been properly complied with or not. In respect to the same, the relevant portion of the order is quoted herein under:-

“11. Sub-section (4) of Section 82 of the Cr. P.C. appears to be applicable in respect of a person accused of an offence punishable under specific Sections of the Indian Penal Code indicated and the word proclaimed offender appears in the said Sub- Section (4) of Section 82 of the Cr. P.C. Some discretion has been given to court to hold inquiry before pronouncing any accused as proclaimed offender under sub-

section (4) of Section 82 of the Code. Sub-Section (5) of Section 82 Cr. P.C. indicates that subsection (2) and sub-section (3) shall apply to declaration made by the Court under subsection (4) as they applied to the proclamation published under sub- section (1). In the present case we are not concerned with sub- section (4) because the petitioner is not an accused of the offence indicated under said sub-section (4) of Section 82 of the Code.

Therefore, I have to see whether provisions against issuance of proclamation u/s 82 sub-section (1) (2) & (3) have properly been complied with or not. Sub-section (1) empowers the Court to issue written proclamation with certain direction to appear at a specified place and a specified time against a person who is either absconded or concealing himself so that the warrant issued against him could not be executed. Sub- section (2) of Section 82 of the Code indicates the manner in which a proclamation shall be published or executed. In this connection compliance of Sub-Section (3) of Section 82 of the Code is very much important. This sub-section speaks about the subjective satisfaction of the Court and such subjective satisfaction of the Court must be reduced into writing to the effect that the proclamation was duly published on a specific date in the manner specified in clause (i) of sub-section (2) and that shall be the conclusive evidence that requirement of this section had been complied with and the proclamation was duly published. Such statement recorded in writing shall be the consequence for the next step for issuance of process under Section 83 of the Cr. P.C., therefore, before proceeding with provision contained under Section 83 of the Cr. P.C. the Court issuing a proclamation under Section 82 must record a reason in writing that even after issuance of proclamation the accused did not comply the direction and remained absconding or concealing himself or evading his appearance. The primary meaning of the word abscond is to hide and when a person is hiding from the place of his residence he is said to be absconder. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. In that view of the matter, I feel that strict compliance of sub-section (3) of Section 82 Cr. P.C. is very much required for declaring any accused as absconder. I would further like to explain that Section 82 Cr. P.C. has mainly three parts. As per first part of the Section it is well settled that issuance of warrant is condition precedent for issuance of process of proclamation under Section 82 of the Code. The Court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself so that such warrant cannot be executed. Second part suggest as to how proclamation has to be given effect or published to make the accused acquaint that his appearance is required in connection with particular case before a particular Court. The third part as indicated under sub-section (4) of Section 82 of the Cr. P.C. gives more discretion to make inquiry against an accused who has committed offence indicated under sub- section (4). After recording reasons the Court can declare an accused of such offence as proclaimed offender. To make the view more clear, I would like to refer Section 174 (A) I.P.C. under which disobedience of proclamation has been made punishable, which reads as follows:-

“174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure, 1973 ( 2 of 1974) shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”

  1. This inserted Section 174A of the I.P.C. has two parts ‘the first part of the Section relates for the punishment against a person against whom proclamation has been issued and published under sub-section (1) & (2) of Section 82 of the Code and the punishment is up-to three years or with fine or with both whereas ‘the second part of the offence relates to a declaration made under sub-section (4) of Section 82 under which a person has been pronounced as proclaimed offender and the punishment is severe than the first part which may extend to 7 years and shall also be liable to fine’. Now I feel it desirable to refer paragraph 11 & 12 of the judgment “Lavesh Vrs. State (NCT of Delhi” ( supra).
  1. In view of the observation made in para 12 of the said judgment it appears that a person against whom proclamation under Section 82 Cr. P.C. has been issued is not entitled to the relief of anticipatory bail but then proper compliance of Section 82 as discussed above is very much essential.
  1. Now coming to the facts of this case and the orders passed in P.C.R. No. 416 of 2006 I find that proclamation as required under Section 82 Cr. P.C. has properly not been done and no statement as required under sub-section (3) of Section 82 Cr. P.C. has been recorded. The issuance of process under Section 83 Cr. P.C. vide order dated 22.11.2012 also do not appear to be in accordance with law because the requirement of Section 82 Cr. P.C. has not properly been complied with.
  1. Thus from the above judgments, it is clear that in the anticipatory bail application, the Hon’ble Court has considered the issuance of process under Sections 82 and 83 Cr.P.C. and has held that the requirements before issuance of process has not been properly complied with and thereafter the consideration has been made with respect to prayer for anticipatory bail of the said petitioner.
  1. In the case of Sheikh Anwar @ Sk. Anwar (Supra), the Hon’ble Court was considering as to whether in a proceeding under section 438 Cr.P.C., the legality of process issued under section 82 Cr.P.C. can be looked into and the relevant paragraph of the said judgment are quoted thus:-

“22. The contention of the applicant is that while hearing a petition for grant of anticipatory bail under Section 438 Cr.P.C., the High Court can look into the legality of process issued under Section 82 Cr.P.C. and if the accused prima facie satisfies the court that the order issuing process under Section 82 Cr.P.C. is unsustainable, the Court can grant anticipatory bail to an accused ignoring the law laid down by the Hon’ble Supreme Court in the aforesaid cases.

  1. In my opinion such power cannot be exercised by the High Court while dealing with an application under Section 438 Cr.P.C. It is wellsettled that if there is a specific provision in the Code dealing with a specific subject, other provisions in the Code cannot be resorted to by the Courts. It has been consistently held by the Hon’ble Supreme Court that matters pertaining to revisional jurisdiction of the High court cannot be entertained by the High Court in exercise of its inherent power under Section 482 Cr.P.C. It is open to an accused to move the Court seeking quashing of the order issuing process under Section 82 Cr.P.C. however, it is not open to the High Court to grant anticipatory bail to an accused against whom process under Section 82 Cr.P.C. has been issued, ignoring the law laid down by the Hon’ble Supreme Court in “State of Madhya Pradesh Vs. Pradeep Sharma” and “Lavesh Vs. State (NCT of Delhi).”
  2. In the case of Sheikh Anwar (Supra) therefore it has been held by the Hon’ble Court that domain of the High Court to look into the legality of issuance of process under section 82 Cr.P.C. vests under section 482 Cr.P.C. and the same cannot be considered in an application made under section 438 Cr.P.C.
  1. The judgments referred to above do suggest that there is a conflict of opinion and in such circumstances, it would be desirable that the matter be heard by the Division Bench.
  1. Accordingly this application is referred to the Division Bench in order to answer the following question, which is formulated herein under:-

“Whether in an anticipatory bail application preferred under section 438 Cr.P.C., the Court can look into the legality or otherwise of issuance of process under section 82 Cr.P.C. or whether the same can be considered only in an application filed under section 482 Cr.P.C.”?

Since there is already an interim order in favour of the petitioner, the same shall continue till further orders.

Let this matter be placed before Hon’ble the Chief Justice.

( Rongon Mukhopadhyay, J) Rakesh/