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quashing petition in proclaim offender in High Court.

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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/

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The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.

So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.


Delhi High Court

Rohit Kumar @ Raju S/O Late Sh. Om … vs State Of Nct Delhi

Author: V Gupta

Bench: V Gupta

JUDGMENT V.B. Gupta, J.

  1. Petitioner herein had earlier filed Crl.M.C.No.2952/2007 under Section 482 Cr.P.C. seeking quashing of order dated 31st May, 2007 and 25th July, 2007 passed by Sh. Rakesh Tewari, Addl.Sessions Judge in Criminal Complaint case, whereby he had issued non-bailable warrants and process under Section 82 and 83 Cr.P.C. against the petitioner.
  1. In that petition, it was also prayed that Addl.Sessions Judge be directed to bail out the petitioner in accordance with law and petitioner undertook that he will appear before the court of Addl.Sessions Judge, if directed and co-operate with the prosecution of the case on the next date of hearing, that is, 19th September, 2007.
  1. On that petition, this Court on 17th September, 2007passed the following order:

Keeping in view the facts and circumstances of the case, the execution of process under Section 82/83 Cr.P.C. issued against the petitioner is stayed till 19th September, 2007 provided the petitioner deposit a sum of Rs. 2,500/- as adjournment costs with the trial court by that date and appear before the trial court on that day.

  1. On 19th September, 2007 as directed by this Court, the petitioner appeared before the trial court who passed the following order, relevant portion of which reads as under:

Accused has appeared along with the counsel and has moved the bail application and annexed the copy of the order of the Hon’ble High Court of Delhi dated 17.09.07 in which he sought the stay of the order dated 31.05.07 and 25.07.07 whereby the process under Section. 82/83 Cr.P.C. was issued against the accused. The time requisite for process under Section. 82 Cr.P.C. had already expired on 29.08.07 when the process server returned the execution reports of the said process. Today the case was fixed for recording of the statement of the process server so that the accused could have been declared as a Proclaimed Offender and the case should have been fixed for recording the evidence under Section. 299 Cr.P.C. Although on 17.09.07 there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order and directed the accused to deposit the amount as cost as mentioned in the order which he has deposited with this Court.

  1. Thereafter, trial court heard arguments on bail application and rejected the bail application of the petitioner and took him into custody.
  1. Now, the present bail application has been filed on behalf of the petitioner and notice of the same was issued to State, as well as to respondent No. 2 and the trial court record was also summoned.
  2. It has been contended by learned Counsel for the petitioner that, in terms of the order dated 17th September, 2007, petitioner appeared before the trial court and deposited the costs of Rs. 2,500/-, but the trial court rejected the bail application, making certain observations as mentioned above. The trial court had no business to make such comments and it deliberately disregarded the order, dated 17th September, 2007 and rejected the bail application of the petitioner.
  3. With regard to the above observation made by the trial court, prima facie, it appears that the trial court was not at ease with the order dated 17th September, 2007 passed by this Court and the observation made by the trial court are uncalled for, as it cast aspertions on the functioning of this Court and the same have also been deprecated by the learned Counsel for the respondents.
  4. Brief facts of the case are that respondent No. 2, BSES Rajdhani Power Ltd. had filed a complaint under Section 151 read with Section 154 of the Electricity Act, 2003 against one Raju (user), the present petitioner on 13th April, 2007. After registration of the case, the Addl.Sessions Judge listed the matter on 7th May, 2007 for pre-summoning evidence. On that date, pre-summoning evidence was filed by way of affidavits and the same was closed and the trial court passed the following order:

From the perusal of the record and the statements of the said witnesses, I am satisfied that a prima facie case is made out against the accused under Section 135 of the Electricity Act, 2003. Let the accused be summoned for the said offence on filing of PF and RC and process be given dusty and accused be served through prescribed courier service also for 31.5.07.

Sd/-

Rakesh Tewari ASJ, Delhi/07.05.2007

  1. On 31st May, 2007, the trial court passed the following order:

Present: Deemed APP for the complainant The tenant at the premises in question informed that accused is residing at Daryaganj, Delhi.

Issue NBW against the accused through SHO, P.S. Sangam Vihar, New Delhi for 25.07.07.

Sd/-

Rakesh Tewari ASJ, Delhi/31.05.2007

  1. According to these proceedings, prima facie, it is apparent that the petitioner was never served with any summon nor he was avoiding to receive the summon. Be that as it may, on 25th July, 2007, the trial court passed the following order:

Present:- Deemed APP for the complainant company The accused being the landlord of the premises in question seldom visits the premises as per report on NBW.

Issue process under Section 82/83 Cr.P.C. against the accused through SHO, PS. Sangam Vihar, New Delhi on the last known address for 29.08.07.

Sd/-

Rakesh Tewari ASJ, Delhi/25.07.2007

  1. On 29th August, 2007, the following order was passed:

Present: Deemed APP for the complainant company Process under Section 82/83 Cr.P.C. received back against the accused. Let the Process Server be summoned for recording of his statement on 19.09.07.

Sd/-

Rakesh Tewari ASJ, Delhi/29.08.2007

  1. In the meanwhile, on 17th September, 2007, this Court has passed the order in Crl.M.C.No.2952/2007 as mentioned above.
  2. This observation made by the trial court that:- ‘Although, on 17th September, 2007, there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order…’ goes on to show that process under Section 82/83 Cr.P.C. was duly executed, but that was not the case in reality.
  3. It appears that the learned Addl.Sessions Judge is not aware with the basics of Code of Criminal Procedure, as it is apparent from record that process under Sections 82/83 Cr.P.C. was never executed in accordance with law. For his knowledge and reference, Sections 82 and 83 of Cr.P.C are reproduced as under:

Section 82. Proclamation for person absconding.-(1) 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 specific 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 place 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, 459 or 460 of the Indian Penal Code, 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).

Section 83. Attachment of property of person absconding.-(1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment or any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.

(2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases-

(a) by taking possession; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

  1. The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:

(i) issuing of a proclamation (Section 82)

(ii) attachment or sale of property (Section 83)

  1. The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation.
  2. The expression ‘reason to believe’ occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had ‘absconded’ or ‘concealed himself.’
  3. The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory.
  4. Here the question to be seen is as to whether proclamation under Section 82 Cr.P.C. has been effected in accordance with law or not.
  5. As per proclamation under Section 82 Cr.P.C. placed on record, the same was issued on 27th July, 2007 directing the petitioner to appear before the court on 29th August, 2007. As per service report on the back of this proclamation, a copy of this proclamation was pasted on the house and another was pasted on the main door of the court, on 6th August, 2007.
  6. So, admittedly, as the proclamation has been effected on 6th August, 2007 and petitioner was given time to appear in the court on 29th August, 2007, the petitioner was granted less than thirty days from the date of publishing of the proclamation, to appear in the court. As per Section 82(1) Cr.P.C. the court was required to give time ‘not less than thirty days from the date of publishing such proclamation’.
  7. The proclamation issued under Section 82 Cr.P.C. requires appearance of the person, against whom warrant has been issued, at a specified time, at a specified place. The date fixed should be not less than thirty days from the date of publication of the proclamation. If that be so, simultaneous attachment of property cannot be effected.
  8. Since the proclamation under Section 82 Cr.P.C. had been effected only on 6th August, 2007, so the petitioner, could not be asked to appear before the court on 29th August, 2007, as specified time of not less than thirty days was not given to him.
  9. Now, coming to proclamation issued under Section 83 Cr.P.C, it was issued on 27th July, 2007 directing the petitioner to appear in the court on 29th August, 2007. As per service report on the back of this proclamation interestingly, it was effected only on 29th August, 2007, that is, the day on which the petitioner was supposed to appear in the court.
  1. The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.
  2. So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.
  3. When on 29th August, 2007, no valid proclamation under Section 82 and 83 Cr.P.C. has been effected, then where was the question for the trial court for recording the statement of the process server so, that the petitioner could have been declared as a proclaimed offender and case should have been fixed for recording the evidence under Section 299 Cr.P.C. It appears that the trial court was in undue haste and was bent upon to declare the petitioner as proclaimed offender, without following the due process of law.
  4. So, the above mentioned orders passed by Sh. R.K.Tewari, Additional Session Judge goes on to show that he lacks even elementary knowledge about the Code of Criminal Procedure and also does not know as to in which cases and in what manner, proclamation under Section 82/83 Cr.P.C. are to be issued. In spite of the fact that Sh. R.K.Tewari has no basic knowledge of the criminal law, he has chosen to comment on the order passed by this Court, which amounts to judicial indiscipline.
  5. It also appears that, this judicial officer is not aware of the fact or does not have even that knowledge, that the sub-ordinate courts are, by way of constitutional provisions, bound by the decision of local High Courts as is every court in the country including the High Courts, are bound by the decision of the Supreme Court by virtue of provisions of Article 141 of the Constitution of India and on this point, judgment of this Court on its own motion v. Central Bureau of Investigation 2004 (72) DRJ 629 may be relevant and para 28 of it is reproduced as under:
  1. There is no gain saying the fact that the disobedience or disregard of the law laid down by the High Court by the subordinate courts is not only against the very concept of rule of law but also verges on the contempt of court as subordinate courts are, by way of constitutional provision, bound by the decision of the local High Court as is every court of the country including the High Courts, bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the Constitution. If the subordinate courts start ignoring the law laid down by their High Courts and start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure of the country, rule of law and concept of liberty of citizens will be the first casualty.
  2. The observations made by the trial court in its order dated 19th September, 2007 are per se disobedience of the order passed by this Court and verges on the contempt of court. Since Sh. R.K. Tewari, Additional Session Judge does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances, it would be appropriate, if Sh.Rakesh Tewari, Addl.Sessions Judge, undergoes refresher course at Delhi Judicial Academy in criminal law and procedure, at the earliest and the District and Sessions Judge would see to it that name of this officer is recommended in the first available such course and this officer should undergo training in Dehli Judicial Academy, under the supervision of the Director, Delhi Judicial Academy at least for a period of three months and, Director, Delhi Judicial Academy, should submit to this Court, performance report, with regard to this judicial officer.
  3. Registrar General of this Court is directed to send the copy of this Judgment to all the Judicial Officers of Delhi for guidance and one copy be sent to the Inspecting Judge as well as one copy of Judgment be placed in the personal file of this Judicial Officer.
  4. Trial Court record be sent back forthwith. Ordered accordingly.