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When Can Magistrate Issue Non-Bailble Warrant of Arrest, Process For Declaring A Person Proclaimed Offender And Order Attachment of Property Under Section 82 CrPC

Chapter VI of the Code of Criminal Procedure, 1973 deals with the process to compel appearance. The said Chapter is divided in Four Parts. Part ‘A' relates to summons; Part ‘B' relates to warrant of arrest, Part ‘C' relates to proclamation and attachment; and Part ‘D' relates to other rules regarding processes.

Section 82 of the Code of Criminal Procedure, 1973 deals with Proclamation for persons absconding. It is necessary to quote Section 82 of the Code in its entirety, which reads as under:

82. Proclamation for person absconding:

  1. If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
  2. The proclamation shall be published as follows:
    1. *
      1. it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
      2. it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
      3. a copy thereof shall be affixed to some conspicuous part of the Court-house;
    2. the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
  3. A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
  4. Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
  5. The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).

    From perusal of sub section (1) of Section 82 of the Code, it is clear that the Court must have reasons to believe that the person, against whom warrant has been issued, has absconded or concealing himself so that the warrant cannot be executed. In view of the said provision, 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.


Scope of Section 82 of Code of Criminal Procedure, 1973

Constitution of India empowers every person to defend himself of the charges/s levelled against him. Constitution of India does not permit a person to be condemned unheard without affording an opportunity to him. If the accused does not appear in Court even after the issuance of warrant of arrest, then the Magistrate can compel the presence of the accused by issuing proclamation of absconding accused and further order attachment of property of person absconding under Sections 82 & 83 of Code of Criminal Procedure, 1973.

The issuance of a warrant for the arrest of a proclaimed offender under Section 82 (1) or 82 (4) Cr. P. C is for the purpose of ensuring his presence before the Court. The warrant issued in a pending case is aimed at apprehending the accused and bringing him before the Court so that he can be tried for the commission of offence accused/charged.

The Scheme provided by Section 82 of the Code denotes a mandate, if Section 82 is analysed, it is necessary that;

  1. The Court should have reason to believe that the person against whom a warrant has been issued by its has absconded;
  2. After recoding such satisfaction, the Court should require the concerned person to appear at a specified place and at a specified time, not less than 30 days. [Savita Ben Govind Bhai Patel Vs State of Gujarat, 2004 Cri. L. L 3651].

Though the process under Sections 82 & 83 of the Code of Criminal Procedure, 1973 can be issued in a summons case and against a witness. But to lay a foundation for the issuance of a proclamation under Section 82 with an accompanying in the order for attachment under Section 83 Cr. P. C, it is necessary strictly to comply with the provisions of law relating to the issuance of warrant of arrest, in a case where summons is the ordinary mode of enforcing attendance, as held in [Sanjay Sarin Vs State of Punjab, 2013 Cri. L. J 408 (P&H)].

Issuance of Non-bailable Warrant of Arrest is a Pre-requisite for issuance of Proclamation

In terms of Section 73 of Cr. P. C, the Magistrate has jurisdiction and power to issue warrant of arrest, which can be directed against any:

  1. escaped convict,
  2. proclaimed offender, or
  3. 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.

Process under Sections 82 & 83 of Cr. P. C cannot be issued unless it is established that a warrant had already been issued against the person wanted and that person was absconding. Prior to the issuance of proclamation, issuance of warrant of arrest by the Magistrate is sine qua non. In the absence of any material to show that the Court has on any earlier occasion issued warrants of arrest order directing issuance of proclamation cannot be sustained. [Sunil Kumar Vs State, 2002 Cri. L. J 1284].

Simultaneous issuance of a warrant of arrest and a proclamation under Section 82 (1) of Code of Criminal Procedure, is illegal and improper vitiating the consequential order of attachment and ancillary order passed. The Magistrate, before the issuance of process under Section 82 of Code of Criminal Procedure is statutorily under obligation to consider that there may be more than one reason for non-execution of warrant under consideration.

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 be 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.

The Hon'ble Supreme Court in the case of [Raghuvansh Dewanchand Bhasin Versus State of Maharashtra reported in (2012) 9 SCC 791] held that issuing non-bailable warrant of arrest directly involves curtailment of liberty of a person. The Hon'ble Supreme Court took note of the earlier Judgment in the case of [Inder Mohan Goswami Versus State of Uttaranchal reported in (2007) 12 SCC 1. Paragraph 12 of the Judgment rendered in the case of Raghuvansh Dewanchand Bhasin (supra) is quoted hereunder:
12. In Inder Mohan Goswami Vs State of Uttaranchal, a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the Courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the Court should bear in mind while issuing non-bailable warrant, it was observed (SCC PP. 17-18, Paras 53-55) 53.

Non-bailable warrant should be issued to bring a person to Court when summons or bailable warrants would be unlikely to have the desired result.
This could be when:

  • It is reasonable to believe that the person will not voluntarily appear in court; or
  • The police authorities are unable to find the person to serve him with a summon; or
  • It is considered that the person could harm someone if not placed into custody immediately.

54. As far as possible if the Court is of the opinion that a summon will suffice in getting the appearance of the accused in the Court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The Court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution Courts at the first and second instance to refrain from issuing non-bailable warrants.

If liberty of a person is to be curtailed, the same has to be done strictly in accordance with the law so provided for. 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 non-bailable 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

Sub section (2) of Section 82 of the Code provides how the proclamation has to be published. Section 82(2)(i)(a)(b)(c) provides that the same has to be publicly read in some conspicuous place of the town or village where the person ordinarily resides. The proclamation should also be affixed to some conspicuous part of the house of homestead where the person ordinarily resides.

There is a requirement of fixing a copy of the proclamation at some conspicuous part of the court-house also. Over and above the said procedure, a provision has been made in 82 (2)(ii) of the Code for a direction to publish the same in a newspaper. This part relating to publication in newspaper is not mandatory, but the previous procedures are.

Sub section (3) of Section 82 of the Code is a very important provision, which requires the Court to record that the requirements of sub section (2)(i) of Section 82 of the Code has duly been complied with. This provision is also mandatory in nature.

Sub section (4) of Section 82 of the Code provides that if a person is accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 186), and such person fails to appear, complying with the proclamation, he will be declared as a proclaimed offender.

The Criminal Law (Amendment) Act of 2005 inserted Section 174-A in the Indian Panel Code, 1860. It states that when a person fails to abide by the terms of the proclamation under Section 82 (1) of the Code of Criminal Procedure, 1973, he/she shall be punished with imprisonment for a period of maximum three years.

In case of non-abidance to the proclamation issued under offences laid down under Section 82 (4) of the Code of Criminal Procedure, 1973 and the person has been announced as a proclaimed offender, the punishment shall be imprisonment for a term that may extend to seven years and a fine could also be imposed on same.

The Section 82 is a penal clause, making the accused susceptible to punishment under Section 174-A of Indian Panel Code, 1860. In this backdrop 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. This penal provision makes compliance of Section 82 (3) of the Code mandatory in nature.

In this regard it is necessary to refer a Judgment of Hon'ble Supreme Court in the case of [Securities and Exchange Board of India Versus Gaurav Varshney & Another reported in (2016) 14 SCC 430] (Para 32.5) holding as under:
32.5 And filthy because, contravention of Section 12(1-B) entails penal consequences, and therefore, cannot be construed as directory. We therefore hereby accept the submission advanced on behalf of the learned counsel for the Board and hold that the bar created for new operators, of a collective investment initiative, was absolute and mandatory. The bar under Section 12(1-B) restrained persons (who were not engaged in any collective investment venture up to 25.01.1995) from commencing activities concerning collective investment, till they had obtained a certificate of registration, in consonance with the Collective Investment Regulations.

Thus, from the reading of Section 82 of the Code, it is clear that at first the Court has to have sufficient materials before it to reach to a conclusion to believe that a person, against whom warrant of arrest has been issued, is absconding or is concealing himself, and it is not possible for the authorities to execute the warrant of arrest.

This satisfaction has to be recorded in the order while issuing processes under Section 82 of the Code. In this situation also, from the records of the case, the Court has to derive the aforesaid satisfaction. 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 be in the eyes of law.

The provisions of Section 82 of the Code of Criminal Procedure, 1973 are to be strictly construed and to be followed as it affects the personal liberty of a citizen. Section 82 Cr. P. C consists of three sub-sections. Sub-section (1) provides for issuance of proclamation, whereas, sub-sections (2) & (3) deal with the procedure to be adopted for publication of proclamation directed to be issued in consequences of an order passed under sub-section (1).

The provisions of sub-section (2) as to publishing of proclamation are to be strictly complied with. All the three modes prescribed by this sub-section must be adopted. The provisions of sub-section (2) of Section 82 Cr. P. C are imperative. The non-conformance of Section 82 (1) and (2) of Criminal Procedure Code established by law within the meaning of Article 2 of the Constitution of India, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. [Pawan Kumar Gupta Vs State of West Bengal, 1973 Cri. L. J 1368 (Cal.); Sunil Kumar Vs State, 2002 Cri. L. J 1284 (Delhi)].

Further, sub-section (1) of Section 82 of the Code provides that the Court has to publish the written proclamation requiring the person to appear on a specified date and specified place not less than 30 days from the date of such publication. Thus, it is the duty of the Court to mention the specific place and the date where the person needs to present himself in compliance of the proclamation order. This date and place should be mentioned in the order itself.

Form IV, which is part of Second Schedule of Code is the form in which proclamation is required to be issued. The said form provides for mentioning the place and date, for the person to appear in compliance of the order. This is a statutory form. This form is filled by the Office of the Court. Thus, the date and place, which is mentioned in the said form must also be reflected in the order-sheet. This will mean that the Court has fixed the place, time and the date and not the Bench Clerks or the Office Clerks, as it is the mandate of the law that the Court has to fix the place, time and the date of appearance. The Form IV, which is a statutory form, must be scrupulously followed and filled up as per the date, time, place fixed by the Court, which should be reflected in the order-sheet.

The Supreme Court, in the context of service of summons under the Civil Procedure Code, 1908, in the case of [Auto Cars Vs. Trimurti Cargo Movers Pvt. Ltd. & Ors., (2018) 15 SCC 166], 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 and consequently cannot be held to be duly served.

The Supreme Court, while taking note of the statutory form as mentioned in the Appendix - B to the Code of Civil Procedure, as also the provisions of Section 27 and Order V of the Code of Civil Procedure, 1908 held that the requirements specified in law by the statute are not an empty formality. The Supreme Court, while interpreting the provisions of the Code of Civil Procedure, held that the provisions relating to service of summons are mandatory in nature and relied upon a well settled principle of interpretation that when the legislature provides a particular thing to be done in a particular manner, then such thing has to be done in the same prescribed manner and in no other manner.

Another aspect which has to be taken note of, is that the Hon'ble Supreme Court in the case of [State of Madhya Pradesh Vs. Pradeep Sharma, (2014) 2 SCC 171], after relying on other Judgments, has held that 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, 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

Here it is necessary to quote the provisions of Section 83 (1) of the Code, which reads as under:
83. Attachment of property of person absconding – (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable, or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued:

  1. is about to dispose of the whole or any part of his property, or
  2. is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.

Section 83 (1) of the Code clearly 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. 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.

Further, from the aforesaid provision of law, it is clear that attachment order under Section 83 of the Code can be issued to attach the property belonging to the proclaimed person. Statement to the effect that the proclamation was duly published has to be made in terms of Section 82 (3) of the Code, which provides that the Court has to record a statement in writing to the effect that the proclamation was duly published on the specified date in the specified manner as provided in Clause (i) of sub section (2) to Section 82 of the Code.

This statement of the Court, which is to be recorded as per the statute, is a conclusive evidence that the requirement of law has been complied with, which is a pre-requisite for declaring a person a proclaimed offender/person absconding. Without recording the aforesaid statement in writing to the effect that the requirement of Section 82 of the Code has been complied with, a person cannot be declared to be a proclaimed offender/absconder, an attachment order in terms of Section 83 of the Code cannot be issued.

Thus, before issuing any attachment order under Section 83 of the Code against a person absconding, the statement, as envisaged in terms of Section 82 (3) of the Code has to be on record. This is all the more necessary, as mentioned earlier, the said person can be tried and punished for a separate offence punishable under Section 174-A of the Indian Penal Code.

The Court Has Reason To Believe - Meaning
Section 26 of the Indian Penal Code, 1860 defines the meaning of reason to believe. The words reason to believe contemplate subjective satisfaction of the Court on the basis of the materials before the Magistrate acting under Section 82 of the Code.

According to the provisions of the Section which has been held by the Hon'ble Jharkhand High Court, through several cases, to be mandatory, a proclamation can be issued only when the Court is clearly satisfied by examining the Serving Officer or in any other manner that a warrant has already been issued and that the accused is absconding or concealing and warrant cannot be executed for that reason, whatever be the intention. There should be a Judicial finding as to the abscondance or concealment on sufficient materials.

Where materials on record show that the accused having knowledge of the Court proceedings avoids process of the Court, he can be declared as proclaimed offender under Section 82 of the Code.
An accused will be declared absconder when the court is satisfied that the accused had left his permanent residence or he is avoiding service or there is no chance of his arrest in near future. As held by the Hon'ble Jharkhand High Court in the case of [Mahendra Kumar Ruiya Vs The State of Jharkhand & Another, 2013 (3) JLJR 407 (Jhar)] and in other cases that non-submission of execution/report in the Court is not the only sole criterion to adjudge that the person against whom warrant has been issued is concealing himself or absconding so that the warrant may not be executed.

The Court, in such cases, may rely on other materials available on record or may take evidences which may lead the Court to reasonably believe that the person is absconding or concealing himself. But, under no circumstances, an Order under Section 82 of the Code must be passed mechanically. The Order must reflect that the Court has applied its Judicial mind and only after its subjective satisfaction, the Court has reason to believe that the person has absconded and a proclamation under Section 82 of the Code is essential.

There is an exception to this rule when 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. The first proviso to Section 83 (1) of the Code provides for the circumstance and the situation where it is necessary to issue both the proclamation and attachment order simultaneously and how the same can be issued and the requirements thereof.

Since this is not the subject matter before this Court, I am not dealing with the said proviso. The fact remains that in a case where processes in terms of Section 82 and 83 of the Code are issued separately, then 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 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.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected] 

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