Court Cannot Issue Process U/S 82 Or 83 CrPC Without Recording Satisfaction That Persons Were Deliberately Avoiding Service: Patna HC Reiterates

The Patna High Court has reiterated that issue of process of proclamation and attachment under Sections 82 and 83 of the CrPC respectively is procedurally deficient in absence of service report for summons and warrants.

Justice Partha Sarthy held that trial courts must record satisfaction regarding deliberate avoidance of service, before resorting to proclamation. The single bench observed,

“trial Court proceeded in the matter without there being any service report of the summons or bailable warrant of arrest. The procedure adopted by the learned trial Court was of issuing non bailable warrant, process under section 82 and thereafter under section 83 Cr.P.C. even without recording its reasons and satisfaction to the effect that the petitioners were deliberately avoiding service.”

“The orders issuing process under section 82 Cr.P.C. as also under section 83 Cr.P.C. were clearly contrary to the procedure prescribed under the Code of Criminal Procedure. The same thus being not sustainable, are both fit to be quashed,” Justice Sarthy added.

According to the complaint filed by the opposite party no.2 in the Court of the Chief Judicial Magistrate, he serves as the Supervisor of Rohtas Transport Agency, overseeing vehicle bookings inside the factory for loading and unloading. It was alleged that the petitioners, who were the driver and conductor of a truck, used a fraudulent owner's book to facilitate the loading of material onto the truck and collected Rs. 18,740 as rental payment. A complaint was subsequently lodged.

The Counsel appearing on behalf of the contended that the trial court's order sheet in the complaint case didn't show any record of service of summons or the execution of either bailable or non-bailable warrants against the petitioners.

He further contended that since there was no notice service report, the orders issued under Sections 82 and 83 of the Cr.P.C. were passed illegally and should not have been issued in the absence of compliance with the basic procedural requirements. The issuance of process under Section 82 (proclamation for a person absconding) and Section 83 (attachment of property of person absconding) requires clear evidence that the accused has deliberately avoided service, which, the counsel argued, had not been established in this case.

Alternatively, the counsel for the respondents contended that the summons were properly issued, and after the petitioners failed to appear in response, the bailable warrants were issued, which was followed by non-bailable warrants. The counsel further contended that the trial court had acted correctly in proceeding with the process as the petitioners had failed to appear despite multiple opportunities.

The High Court, upon reviewing the case records, observed that even though the matter was heard on 21 separate dates, there wasn't any record of service of a non-bailable warrant.

The court underscored that the trial court had issued process under Section 82 CrPC without any service report and without recording satisfaction that the petitioners were avoiding service. Moreover, trial court issued the process under Section 83 CrPC, even though the service report for the process under Section 82 CrPC was still awaited.

Consequently, the High Court allowed the application, while quashing the orders issued against the petitioners under Sections 82 and 83 CrPC in connection with the complaint case.

Case Title: Ajeet Kumar v The State of Bihar & Anr.

LL Citation: 2024 LiveLaw (Pat) 91

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