Magistrate Writes "State Absconded" In Arrest Warrant, Punjab & Haryana HC Laments Non-Application Of Mind, Quashes Subsequent Proclamation Order

Observing that it was a "total non-application of judicious mind", the Punjab and Haryana High Court has set aside the proclamation order issued by a Judicial Magistrate subsequent to issuance of an arrest warrant (under wrong provision) where Magistrate wrote the "State has absconded", instead of name of accused.

The Warrant Serving Officer pasted the arrest warrant on the wall considering it as proclamation and reported back to the Magistrate that the accused cannot be found, and on the basis of this report the Court initiated proclamation proceedings.

Justice Sumeet Goel said that the arrest warrant and order to initiate proclamation proceedings is unwarranted in view of Sections 70 and 82 of CrPC.

The arrest warrant is issued under Section 70 of CrPC. Section 82 stipulates that if any Court has reason to believe that any person against whom a warrant has been issued by it has absconded, then the 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. The manner in which publication is done is also prescribed in the same section.

The Court however found that arrest warrant was issued under Section 82 CrPC.

"Warrant of arrest of a person is required to be issued by the Court under Section 70 of the Code of Criminal Procedure, 1973. Whereas, the proclamation for the person absconding is required to be made by the Court under Section 82 of the Code of Criminal Procedure, 1973. Both these sections of the Code operate in different circumstance and as such cannot be invoked simultaneously...The innocuous language used in the arrest warrant does not make any sense, in as much as on the top of the document it is mentioned as warrant of arrest but shown to have been issued in reference to Section 82 of the Code of Criminal Procedure. Moreover, instead of name of accused it is mentioned therein that the State cannot found and the State has absconded," observed the judge.

Justice Goel also pointed that arrest warrant is issued in Form No.2, contained in Second Schedule of CrPC whereas Proclamation is issued in Form No.4.

The Court further highlighted that a perusal of such warrant of arrest and report overleaf shows that the Warrant Serving Officer did not even try to contact the accused-personally to execute the Warrant. "Rather, he considered the warrant of arrest as proclamation under Section 82 of the Code of Criminal Procedure, 1973 and allegedly simply pasted the publication (without there being any proclamation)," noted the Court.

It found that in these circumstances there was no cogent material available before the Judicial Magistrate to conclude that the accused was evading arrest, as recorded in the order of proclamation.

The Court was hearing a plea under section 482 CrPC, challenging Magistrate's order declaring the accused as proclaimed offender in an attempt to murder case.

Counsel for the petitioner argued no effective steps were taken in the case to serve him with warrants before issuance of proclamation against him.

The Judge noted that the Magistrate had concluded that period of 30 days has elapsed since publication, however, "it is totally inexplicable how the Judicial Magistrate concluded that after alleged publication of proclamation on 28.07.2023 the period of 30 days lapsed on 17.08.2023."

The Court also referred to catena of judgements to underscore the guidelines on declaration of proclaim offender and pointed out various lacunas in the order issued by the Magistrate.

"There was no material before the Judicial Magistrate while issuing proclamation that the petitioner tried to evade his arrest in the case, or has absconded or is concealing himself. The predominant requirement for invocation of provisions of Section 82 of the Code of Criminal Procedure is clearly lacking in the present case," the Court said.

Justice Goel concluded that the provisions of Section 82 CrPC, having serious ramifications qua the right of the accused concerning his presence in the criminal trial, ought not be and cannot be invoked in casual and cavalier manner.

Stating that, "Non-adherence to said requirement while declaring the accused as proclaimed offender vitiates the proclamation proceedings initiated against the accused", the Court allowed the plea.

Mr. Kulwant Singh, Advocate for the petitioner.

Mr. Adhiraj Singh, AAG, Punjab.

Mr. Harkirat Singh Ghuman, Advocate for the complainant.

Title: VXXX v. STATE OF PUNJAB

Citation: 2024 LiveLaw (PH) 261