When Should Proclamation U/S 82, 83 CrPC Be Issued Against A Person To Compel His Appearance In Court?: Allahabad HC Explains

The Allahabad High Court recently explained as to when a Proclamation under Sections 82, 83 CrPC be issued against a person to compel him to appear before the court be issued. The bench of Justice Rajesh Singh Chauhan decoded the procedure as laid down in the CrPC for the issuance of a proclamation, summons, and arrest warrants

Untangling the intricate procedure laid down in the Code of Criminal Procedure (CrPC) regarding the issuance of proclamation, the bench set aside a Non Bailable warrant and issuance of process under Section 82 of the CrPC against one Purushottam Chaudhary pertaining to a corruption case.

In its order, the Court observed that if the appearance of any person / accused person is required before the trial court, firstly summons should be issued, and if the person concerned does not appear before the court concerned on the date fixed, the court concerned should first verify as to whether such summon has been served upon the applicant or not and if such summon has not been served on him personally at least one more summon should have been issued to him.

The Court further added that on the next date, the Court concerned must verify this fact as to whether such summon has been served upon the person concerned or not and if the court is convinced that despite the summons being served upon the person concerned he is avoiding the process of law, then a bailable warrant can be issued.

However, the Court added that at the stage of the nonbailable warrant, the court should take proper care and precaution convincing itself that despite the service of a bailable warrant, on a couple of dates, the process of law is being avoided only in that extreme circumstance the NonBailable Warrant should be issued.

The Court opined thus as it reasoned that such a process of law directly relates to the liberty of a person which is guaranteed under Article 21 of the Constitution of India. In other words, the Court opined that before issuing N.B.W. due care and precaution are warranted for the trial court and N.B.W. should not be issued in a cursory manner.

Further, regarding the issuance of proclamations u/s 82 and 83 Cr.P.C. against an accused person, the Court said that in such a situation, the degree of carefulness and precaution would be increased.

In fact, the Court opined that such orders relating to the proclamation may be issued only on the application of the prosecution supported with an affidavit that despite all reasonable efforts being taken against the accused person to serve upon the summon the bailable warrant and N.B.W. he/she is avoiding the process and that, the Court should assign specific and cogent reasons to the effect that now there is no other way out except to initiate proceedings u/s 82 Cr.P.C. and 83 Cr.P.C.

In this regard, the Court relied upon Apex Court's ruling in the case of Inder Mohan Goswami and Anr. vs. State of Uttaranchal and Ors., 2007 AIR SCW 6679 wherein it was specifically held that proclamation cannot be issued in a cursory manner.

The case in brief

Petitioner/Applicant Purushottam Chaudhary had moved the High Court challenging three orders of the subordinate court regarding the issuance of a bailable arrest Warrant (on Jan 10), a nonbailable arrest warrant (on Jan 24) as well as the issuance of process u/s 82 CrPC (vide order Feb 8).

The Counsel for the accused argued that a bailable warrant against the applicant was issued by the court presuming that despite the summons having been served upon him he did not appear. It was submitted that a straightaway Non-Bailable Warrant had been issued on Jan 24 without verifying the fact as to whether the applicant had been informed about the date fixed i.e. 24.1.2023 and about the bailable warrant being issued against him on 10.1.2023.

Further, Court's attention was drawn towards the third order dated 8.2.2023 whereby the learned trial court straightaway issued N.B.W. and proclamation of section 82 Cr.P.C. again without verifying the fact as to whether the applicant is aware of the N.B.W. being issued on 24.1.2023.

It was strongly argued that the summons against the applicant had not been served in terms of section 64 Cr.P.C. which provides that if the person whose presence is required in the Court is not present in the house such summon should be served upon any male member of the family but in the instant case, the same had been served upon one female member (bhabhi of the petitioner) of the family.

Having analyzed the facts of the case, the High Court held that the issuance of the proclamation did not stand the test laid down in the case of Inder Singh and hence, all three orders were set aside.

To arrive at this conclusion, the Court also noted that in the case, the summon had not been served upon the applicant in terms of section 64 CrPC as the same was served upon any male member of the family but the same had been served upon one female member of the family.

However, the Court did observe that since the next date in the matter has been fixed on 13.3.2023, therefore, the present petitioner would be bound to appear before the court concerned on that day to face further proceedings and the trial court may proceed further strictly in accordance with law ignoring the impugned orders dated 10.1.2023, 24.1.2023 and 8.2.2023.

Appearances

Counsel for Applicant: Pranshu Agrawal

Counsel for Opposite Party: Anurag Kumar Singh

Case title - Purushottam Chaudhary vs. Central Bureau Of Investigation Thru. The Superintendent Of Police Cbi/Acb Lko [APPLICATION U/S 482 No. - 1974 of 2023]

Case Citation: 2023 LiveLaw (AB) 92

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