Courts Shouldn't Rush To Issue Standing Warrant, Proclamation & Attachment Orders Unless Satisfied That Accused Evading Intentionally: Rajasthan HC

Under Code of Criminal Procedure, Section 82 deals with the proclamation for person absconding, while section 83 talks about attachment of property of person absconding.

Essentially, on 16.05.2022, the Special NIA Court had issued a standing warrant against the petitioner while noting that the petitioner appears to be an absconder who has been dodging the bailable warrant and in the immediate future there is no possibility of securing his presence. The trial court had simultaneously ordered that proceedings under sections 82 and 83 of the Code be initiated against him. Aggrieved by the same, the petitioner has filed the present petition under Section 482 CrPC.

Justice Dinesh Mehta, while allowing the petition and setting aside the trial court's order, observed,

"In the opinion of this Court, endeavor of a Court should be to ensure proper compliance of the statutory provisions and service of the summons as mandated by law. Service of summons is a bed-rock of principles of natural justice. The Courts should not rush to issue standing warrant and initiating proceedings under Sections 82 and 83 of the Code, unless they are satisfied that the accused is intentionally evading or circumventing the warrants in order to avoid the prosecution."

The court opined that the trial court seems to have been swayed by the purported directions issued by the Supreme Court to decide Negotiable Instrument cases expeditiously. Expeditious disposal of cases is necessary but equally necessary is to observe mandate of law including procedural law, added the court. The court noted that simply because bailable warrants have been ordered to be issued or as a matter of fact have been issued without report of their service/execution, the trial Court should not and cannot issue standing warrant and initiate proceedings under Sections 82 and 83 of the Code, as a matter of course or routine.

The court pursued sections 82 and 83 and observed that action section 82 is the prerequisite to proceed under section 83 of the Code. Section 82 provides the court power to issue a proclamation upon fulfilment of the following conditions: i.e. firstly, the court already issued a warrant and secondly that court has reason to believe that such person has absconded or concealed himself such that warrant can't be executed.

Placing reliance on the decisions of High Courts of Delhi and Allahabad, the court answered the question in negative that whether or not mere non-appearance on dates fixed by court sufficient to amount to a 'reason to believe' that a person has absconded or concealed himself such that warrant can't be executed.

The court observed that it is being guided by the principles of justice and equity in relation to proceedings under section 82 and 83 of the Code, and cannot in good conscience uphold the order dated 16.05.2022. The court added that declaration of a 'proclaimed offender' under section 82 of the Code entails severe consequences and hence, the courts must exercise caution before proceeding against the accused under Section 82 of the Code.

Moreover, it was opined by the court that mere recording a 'it appears' that accused has absconded is insufficient to proceed under section 82 of the Code because of the expression "such warrant cannot be executed". The court noted that the alleged absconding or concealment must be for the purpose of avoiding the warrant.

In addition to this, the court said that the expression "such warrant cannot be executed" is extremely important because what is required to be ascertained is that the accused is absconding despite being aware of the warrant. In the absence of such finding, it cannot be said that the accused is dodging or evading the warrant, added the court.

In furtherance to this, the court also observed,

"The trial Court has firstly, ignored the fact that on most of the occasions even the summons were not issued due to the fault of the office. That apart, during the period in question, entire society including the Government machinery remained standstilled due to spread of I and II wave of COVID. That apart, there was no material to infer let alone conclude that the petitioner has absconded; thirdly, the trial Court has not shown the basis on which it has concluded that the alleged absconding/concealment by the present petitioner was to avoid execution of the warrant."

The court ordered that petitioner shall appear before the trial court on or before 10.06.2022 and furnish personal bond of Rs.1 lakh and two sureties of Rs.1 lakh each before the trial court, whereafter the trial Court shall proceed in accordance with law.

Adv. C.S. Kotwani and Adv. Swati Shekhat appeared for the petitioner while PP Mahipal Bishnoi appeared for the state.

Case Title: Bhavin Tanwar v. State of Rajasthan & Anr.