Section 82 CrPC - Magistrate Should Not Make Proclamation As Absconder In A Routine Manner As Issue Relates To Personal Liberty : Allahabad High Court

The Lucknow Bench of the Allahabad High Court has held that for issuance of proceeding under Section 82 of the Criminal Procedure Code [Cr. P.C], the investigating officer has to seek the help of the Court, and only under the orders of the Court  proclamation under Section 482 Cr.P.C. can be issued.

Justice Saroj Yadav observed that it is settled that if the accused evades the arrest during the investigation, the Investigating Officer has the power to arrest the accused without a warrant if the offence is a cognizable one.

Section 82(1) Cr.P.C. clearly shows that before issuance of proclamation under Section 82 Cr.P.C. issuance of a non-bailable warrant is necessary because Section 82 Cr.P.C. itself says that "if the Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself."

The matter arises from a petition under Section 482 to quash a non-bailable warrant and an order issued under Section 82 of Cr. P.C. The charges involve offences under Section 60-A, 60 of Excise Act and Sections 302, 307, 120B, 419, 420, 467, 468, 471, 472, and 34 of the Indian Penal Code, 1860 (IPC).

As per the FIR, one Dharmendra Kumar Verma, the complainant's son, died while on the way to Lucknow for his treatment. The deceased become ill as he consumed intoxicated liquor a day before at the place of Rajnath Verma. He was sent to Hospital at Gosaiganj, where he was sent to District Hospital; after that, he was referred to Lucknow for better treatment, but he died while on the way.

During the investigation, the Investigating Officer moved an application before the concerned Magistrate to issue NBW against the accused person and proceed under Section 82 Cr.P.C. as the accused is evading the arrest. The Magistrate granted the same and passed appropriate orders.

Advocate S.P. Singh Somvanshi, appearing for the petitioner, argued that the Chief Judicial Magistrate has no power to issue NBW and proclamation under Section 82 Cr.P.C. against the petitioner in a routine manner. As the case is under investigation, the Court has no ground to issue NBW as the power to arrest without warrant rests with the Investigating Officer. It was submitted that the Magistrate concerned has issued NBW and routinely proceeding under Section 82 Cr.P.C. without applying its legal mind.

Additional Government Advocate Vipul Gupta, appearing on behalf of the State, opposed and submitted that if the person wanted in a crime evades arrest, then the Investigating Officer seeks the help of the Court to arrest the accused and complete the investigation. Seeking rejection of the petition, he submitted no illegality in the order issuing NBW and proclamation under Section 82 Cr.P.C.

Directing the petitioner to appear before the Investigating Officer, the Court noted that the investigation is ongoing in the present matter, which relates to the death of a person by consumption of toxic liquor. However, it also noted that the Magistrate should not routinely pass such order on the simple application of the Investigating Officer. Instead, the application should be supported by an affidavit of the Investigating Officer stating why an NBW and proclamation under Section 82 Cr.P.C. is required, as the issue relates to the personal liberty of a person guaranteed under Article 21 of the Constitution of India.