The Jharkhand High Court has reiterated that non-bailable warrant of arrest and processes and order of attachment under the CrPC cannot be issued in a mechanical manner, and the court has to record its satisfaction with regard to the pre-requisites before passing such an order.
"Non-recording of subjective satisfaction in the order will make the order bad and a non-speaking one. A non-speaking order involving a procedure, which attracts a penal offence (if the order is not complied with), cannot sustain in the eyes of law," a bench of Justice Ananda Sen has held.
The observation has been made in an application filed under Section 482 of CrPC for quashing the orders by which non-bailable warrant of arrest and process and order of attachment had been issued against the Petitioners, by the court of Chief Judicial Magistrate, Latehar.
The Petitioners had contended that Court had issued non-bailable warrant of arrest in their names, without receipt of the service report of bailable warrant of arrest.
Similarly, they submitted, without there being any service report of non-bailable warrant of arrest, process under Section 82 of CrPC had been issued for declaring the Petitioners as proclaimed offenders. Further, without any service of the process under Section 82 CrPC, attachment order in terms of Section 83 had been issued.
Finding merit in the Petitioners' arguments, the High Court quashed the impugned order for having been passed without due application of mind.
Issuance of Non-bailable Warrant of Arrest
In terms of Section 73 of CrPC, the court opined that a Magistrate has jurisdiction and power to issue warrant of arrest, which can be directed against any (i) escaped convict, (ii) proclaimed offender, or (iii) against any person who is an accused of a non-bailable offence and is evading arrest. A person against whom warrant of arrest can be issued, must fall in either of the aforesaid three categories.
In the case in hand, the court observed, when warrant of arrest was issued the Petitioners were neither escaped convicts nor proclaimed offenders. The Petitioners had failed to appear before the Court and they could, at best, fall in the third category, i.e., "an accused of a non-bailable offence and is evading arrest", the court noted.
On this aspect, the court clarified that only being an accused of a non-bailable offence is not a ground to issue warrant of arrest. Emphasizing on the conjunction "and", the court held that the accused must also be evading arrest. It observed,
"Only being an accused of a non-bailable offence is not a ground to issue warrant of arrest, as per the provisions of Section 73 of the Code. The said accused, who is wanted in a case involving a non-bailable offence, must also be evading his arrest. The word 'and' used in Section 73(1) of the Code is a conjunctive clause. Thus, both the conditions should simultaneously exist to enable the Court to issue warrant of arrest. This position of law should have been considered by the Court while issuing a warrant of arrest. This means that a person not only should be an accused of an offence, non-bailable in nature, but also should be found evading his arrest. There is nothing in the impugned orders to suggest that the petitioners were evading arrest."
The court added that execution of non-bailable warrant amounts to "curtailment of liberty" and whenever liberty of a person is to be curtailed the same has to be done strictly in accordance with the law so provided for.
In view thereof and in terms of the Supreme Court ruling in Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791, the High Court held,
"In this case, it [liberty] is being curtailed by issuance of non-bailable warrant of arrest. Thus, the Court has to record his satisfaction that the conditions laid down in the law for issuing warrant of arrest has been fulfilled and the procedure has been complied with. This satisfaction of the Court should be reflected in the order itself, to be gathered from the record, then only warrant of arrest can be issued. The Court has to prima-facie be satisfied that the person accused of committing a nonbailable offence is also evading his arrest. There has to be material before the Court to reach at the aforesaid conclusion. Without recording such subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the materials placed before the Court, warrant of arrest cannot be issued. This satisfaction can be derived from the police paper/ case diary. Mere absence of the accused cannot give rise to a presumption that he is evading arrest, which in turn cannot be the sole ground to issue warrant of arrest."
Issuance of Proclamation for Person Absconding
Section 82 of CrPC prescribes the procedure for declaring a person as a "proclaimed offender" and prescribes that only after the Court is satisfied that the person is absconding, or is concealing, and it is not possible to arrest him, the Court should issue proclamation requiring the accused to appear on a specified date on specified time not less than 30 days from the date of publication of such proclamation.
The High Court has held that Section 82 is a penal clause, making the accused susceptible to punishment under Section 174A of IPC. In this backdrop the court has held that the procedure enacted under Section 82 has to be followed "strictly".
"When violation of any procedure of law attracts a penal provision (herein declaration as proclaimed offender), the procedure, which seeks to declare him an offender, has to be strictly followed and cannot be relaxed," it held.
However in the case at hand, it was noted that there was no material which suggested that the Court had reasons to believe that the Petitioners had absconded or were concealing themselves so that warrant cannot be executed. Further, neither the place nor the date of appearance of the accused was mentioned in the ordersheet, recording of which is mandatory in terms of Section 82(1) of the Code.
"These laches make the order issuing processes under Section 82 of the 13 Code, absolutely bad and unsustainable in the eyes of law," the High Court held.
Reliance was placed on Auto Cars v. Trimurti Cargo Movers Pvt. Ltd. & Ors., (2018) 15 SCC 166, whereby the top court had held that any non-compliance with the statutory requirements regarding mentioning of the specific "day, date, year and time" would amount to material infirmity rendering summons as well as their service bad in law.
Under this provision, the court also clarified if a person is declared as proclaimed offender / absconder in terms of Section 82 of the Code, he is not entitled for relief of anticipatory bail.
Thus in terms of the Supreme Court's verdict in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, the court held,
"when the relief of anticipatory bail is curtailed, as a consequence of an order passed under Section 82 of the Code, declaring a person absconder, the said order cannot be passed in mechanical manner without recording satisfaction and reasons nor can the same be passed without following the procedure as laid down in the Code. In view of the aforesaid circumstances and the consequence one has to face, the Court has to be very cautious while issuing an order under Section 82 of the Code."
Issuance of Order of Attachment
Section 83 of CrPC provides that the Court, which is issuing proclamation under Section 82 of the Code, "for the reasons to be recorded in writing", may order for attachment of moveable or immovable properties. A statement of reasons is however exempted in case both the processes, i.e., proclamation under Section 82 of the Code and attachment order in terms of Section 83 of the Code are issued simultaneously.
In the present case, the orders were issued "subsequently" and not simultaneously. Thus, the High Court held that "without recording a statement, as envisaged under Section 82(3) of the Code, attachment order under Section 83 of the Code cannot be issued."
The court elaborated,
"It is, thus, the mandate of the law that the reasons for issuing attachment order has to be recorded in the order itself. Non recording of the reasons will make the order invalid and unsustainable.
…The absence of the said statement will lead to a conclusion that there was nothing before the Court to suggest that the proclamation under Section 82 of the Code so issued, was properly served. Until and unless proclamation under Section 82 of the Code is properly served, attachment order under Section 83 of the Code cannot be issued."
Noting these glaring procedural violations, the court said,
"I find that none of the provisions, as envisaged in Sections 73, 82 and 83 of the Code has been complied with by the Court below. Non-compliance of the mandatory provisions of law renders the impugned orders, by which order issuing nonbailable warrant of arrest, proclamation under Section 82 of the Code and attachment order, in terms of Section 83 of the Code have been passed in this case, are bad and, thus, are quashed and set aside."
The matter was accordingly remitted to the Court concerned to proceed afresh and pass fresh orders in accordance with law, after complying with the provisions as provided in the relevant Sections of Code.
Case Title: Md. Rustum Alam @ Rustam & Ors. v. State of Jharkhand
Case No.: Cr. MP No. 2722/2019
Quorum: Justice Ananda Sen
Appearance: Advocate Kumar Amit (for Petitioner); APP Sardhu Mahto (for State)
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