Vivekanand Dobriyal vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 5344 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

											AFR
 
Court No. - 10
 

 
Case :- APPLICATION U/S 482 No. - 3899 of 2022
 

 
Applicant :- Vivekanand Dobriyal
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko.
 
Counsel for Applicant :- Arun Sinha,Ram Chandra Singh,Siddhartha Sinha,Umang Agarwal
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Pankaj Bhatia,J.

1. Heard Sri Siddhartha Sinha, learned Counsel for the applicant as well as Sri S.N. Tilhari, learned Counsel appearing on behalf of the State and perused the record.

2. The present application under Section 482 of Cr.P.C. has been filed challenging the order dated 14.06.2022 issued in exercise of powers under Section 82 of the Code of Criminal Procedure (in short "the Cr.P.C."). Although other prayers have been made in the application, however, the Counsel for the applicant confines his submission to the challenge to the order dated 14.06.2022 alone.

3. The facts in brief are that an FIR No.82 of 2022, under Sections 120-B, 384, 389, 405, 420, 465, 471, 504 IPC read with Section 7/13(1)(b) of the Prevention of Corruption Act, 1988 at Police Station Kaiserbagh, District Lucknow was registered against the applicant. It is also on record that subsequently, Sections 467 and 468 IPC were added.

4. It is argued by the Counsel for the applicant that on 09.05.2022, a non-bailable warrant was issued by the court concerned at the instance of the investigating authorities who had alleged that the applicant is not co-operating with the investigation. Subsequently, an application was moved on 24.05.2022 stating therein that despite efforts for arresting the accused in terms of the non-bailable warrant issued on 09.05.2022, the applicant has concealed himself, as a result whereof, non-bailable warrant could not be executed, as such, it was prayed that a proclamation under Section 82 of Cr.P.C. be issued and published against the applicant. An affidavit was also filed on 24.05.2022 in support of the application, wherein the averments similar to the one made in the said application were made. Subsequently, on 25.05.2022, an application was moved by the Investigating Officer stating that in pursuance to the non-bailable warrant issued on 09.05.2022, efforts were made for arresting the accused which has resulted in vain and as an application had already been filed on 24.05.2022 for passing orders against the accused under Section 82 of Cr.P.C., and prayed that the orders be passed. It was also recorded in the said application that during the investigation, it was revealed that the applicant is in the process of selling of valuable assets and may leave the country and as such, it was essential that process be issued against the applicant under Section 82 of the Cr.P.C. On the said applications, an order came to be passed on 14.06.2022 wherein after recording the contents of the application and the submissions made by the Public Prosecutor, the court recorded that prima facie, there was no reason to disbelieve the contents of the application or the affidavit in its support and thus, proceeded to pass an order for issuance of process under Section 82 of the Cr.P.C. The said order is under challenge in the present proceedings.

5. The Counsel for the applicant argues that the application filed for issuance of process under Section 82 of the Cr.P.C. clearly fell short of the requirements prescribed for issuance of process under Section 82 of the Cr.P.C., inasmuch as, in the application, it was only stated that the non-bailable warrant issued by the court could not be executed. He thus argues that based upon the application and the affidavit, the court could not have formed an opinion which is sine qua non for exercise of powers under Section 82 of the Cr.P.C.

6. The Counsel for the applicant further argues that in pursuance to the order passed by this Court, the process issued under Section 82 of the Cr.P.C. is also defective, inasmuch as, neither any specified time nor any specified place has been recorded in the proclamation and thus, the proclamation falls short of the requirements as specified under Section 82(1) of the Cr.P.C. He lastly submits that in the present case, in which the investigating authority has approached the court for issuance of the process under Section 82 of the Cr.P.C. was malafide and only with a view to deny the benefit of anticipatory bail to the applicant in the light of observations made in the judgment of the Hon'ble Supreme Court in the case of Lavesh vs State (NCT of Delhi); 2012 LawSuit (SC) 562) [Equivalent Citation (2012) 8 SCC 730] wherein the Hon'ble Supreme Court observed in para 10 as under:

"(10) From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail."

7. In the light of the said submission, he argues that the proceedings under Section 82 of the Cr.P.C. has been initiated by the impugned order are liable to be set aside.

8. Sri Tilhari, learned A.G.A. appearing on behalf of the State opposes the application and argues that only process have been issued against the applicant as he was not co-operating with the investigation and despite efforts being made, the non-bailable warrant could not be executed against him which is exactly the intent and purpose of Section 82 of Cr.P.C. He further argues that para 10 of the judgment in the case of Lavesh vs State (NCT of Delhi) (supra) is confined to the cases where a person is declared a proclaimed offender or absconder under Section 82(4) of the Cr.P.C. and thus, the apprehension of the applicant is misfounded.

9. Sri Tilhari further argues that in terms of the mandate of Section 82 (2) of the Cr.P.C., a publication was also made in the newspaper. He has drawn my attention to the publication by passing a copy of the same newspaper which is taken on record. Curiously enough, the said publication in the newspaper also does not specify time and place for appearance of the applicant. He lastly submits that the directions be issued to the applicant to co-operate with the investigation.

10. In rejoinder, the Counsel for the applicant argues that his anticipatory bail was rejected by the court below and the applicant has approached this Court by filing an application which is likely to come up tomorrow i.e. 24.05.2022 before the appropriate Court. He also places reliance on the judgment of the Hon'ble Supreme Court in the case of State through CBI vs Dawood Ibrahim Kaskar and others; (2000) 10 SCC 438 and places emphasis on paragraph 24 which is quoted below:

"24. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Court solely for the production of the accused before the police in aid of investigation."

11. The Counsel for the applicant has also drawn attention to the orders passed by this Court in the cases of Kunwar Mahendra Pratap Singh @ Chandan Singh (Application u/s 482 No.2261 of 2021) decided on 18.08.2021, Pankaj Singh @ Ajay Singh vs State of Uttar Pradesh and others (Application u/s 482 NO.175 of 2022) decided on 25.01.2022, Kalbe Raza Abidi vs State of U.P. (Application U/S 482 No.102 of 2022) decided on 11.01.2022 and Vinod Kumar Singh @ Vinod Singh vs State of U.P. (Application U/S 482 No.5195 of 2021) decided on 10.12.2021.

12. Considering the submissions made at the bar, this court is to consider whether the steps for issuance of the process under Section 82 of the Cr.P.C. could be resorted to in the facts of the case and whether the process issued under Section 82 of the Cr.P.C. is in accordance with the scope of Section 82 (1) of the Cr.P.C.?

13. To appreciate the controversy as raised at the bar, it is essential to look at Section 82 of the Cr.P.C., which is quoted below:

"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:--

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) 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;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) 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).]"

14. On a plain reading, the intent and purpose of Section 82 is to secure the presence of the accused who does not participate in the proceedings despite issuance of warrants. To exercise the said powers, the court is to form 'reasons to believe' based upon material before him that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed. The second requirement is that the court shall issue a written proclamation requiring the accused to appear at a specified place and at a specified time which could not be less than 30 days from the date of publication of such proclamation. In the absence of the court forming the 'reasons to believe' the power clearly cannot be exercised and in terms of the powers so conferred, it is also essential that the written proclamation should specify the place and the time for appearance which could not be less than 30 days from the date of application.

15. The reason recorded in the impugned order by the court below while issuing the process under Section 82 of the Cr.P.C. are to the effect that there is no reason to disbelieve the version as contained in the application and the affidavit filed in support thereof. There is no averment or mention of the Magistrate having perused any martial, nor is there any consideration to any other material relating to the execution of the non-bailable warrant. The reasoning recorded clearly falls short of the requirements to pass an order which cannot be done only after having 'reasons to believe'. It is well established that 'reasons to believe' as contained in various statutes, both fiscal and penal, have been interpreted by the Hon'ble Supreme Court to hold that the 'reasons to believe' should be based upon the material as exists and should demonstrate application of mind, as the steps proposed to be taken are harsh and stringent in nature and have the effect of infringing the rights of the citizen guaranteed under Articles 21 and 300-A of the Constitution of India.

16. The expression 'reasons to believe' has come for interpretation on various occasions before the Hon'ble Supreme Court wherein it was categorically held in the case of N. Nagendra Rao & Co vs State Of A.P.; (1994) 6 SCC 205 that expression 'reasons to believe' means formation of an opinion which may be subjective but it must be based on material on record. It cannot be arbitrary, capricious or whimsical. In the case of Dr. Partap Singh and another vs Director Of Enforcement; (1985) 3 SCC 72, it has been held that 'reasons to believe' is not synonymous with subjective satisfaction of the Officer. The belief must be held in good faith; it cannot be merely be a pretence. In the case of Dr. Jai Shanker vs State of Himachal Pradesh; (1973) 3 SCC 83, the Hon'ble Supreme Court has held that expression 'reasons to believe' mean a belief which a reasonable person would entertain on the facts before him.

17. The reasons recorded in the impugned order clearly do not show any application of mind, or reference to any material before the Magistrate to demonstrate as to how the Magistrate formed 'reasons to believe' and thus on that ground alone, the order is liable to be set aside.

18. Coming to the second part of the requirement as specified under Section 82(1), the process so issued should indicate specific date, time and place for appearance, as the sole purpose of Section 82 of the Cr.P.C is to secure the presence of the accused and without there being any specific time and place mentioned in the order, the same would not satisfy the requirements which is contemplated under Section 82 (1) of the Cr.P.C. In the present case, the process issued or even the publication does not indicate any specified time and place and thus on this ground also, the process issued under Section 82 cannot be sustained.

19. As regards the third submission of the Counsel for the applicant that the whole action was done to deny the benefit of anticipatory bail by the State, I do not find any material on record to substantiate the said submission. Furthermore, the State would not benefit by getting the issuance of proclamation under Section 82(1) as in terms of the mandate of the Hon'ble Supreme Court in the case of Lavesh vs State (supra), the benefit of anticipatory bail are not available only when the person is declared proclaimed offender under Section 82(4) of the Cr.P.C. or abscond and not prior thereto.

20. It is interesting to note that in terms of the prescription of Section 82(4) of the Cr.P.C., in the cases where the proclamation prescribed and published under sub-section (1) is in respect of a person 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 IPC, the court can declare the person, who fails to appear at the specified place and time required under proclamation, as a proclaimed offender and make declaration to that effect.

21. In the present case, none of the sections as mentioned in Section 82(4) are the part of the FIR of which the applicant is allegedly accused of, as such, the applicant, prima facie cannot be declared as proclaimed offender in exercise of powers under Section 82(4) of the Cr.P.C., thus on that count also, the apprehension of the applicant is not justified.

22. In view of the reasonings recorded above, the application is allowed and the order dated 14.06.2022 is set aside.

23. It is informed at the bar by the Counsel for the applicant that the passport of the applicant has already been seized by the police authority, however, in case the passport has not been seized by the police authority, the applicant shall surrender the passport before the court concerned.

24. It is further clarified that investigating authority shall be at liberty to carry out the investigation in accordance with law in respect of the offence in question and the applicant shall also be at liberty to avail such remedy as may be available to him under law.

Order Date :- 23.06.2022

akverma

(Pankaj Bhatia,J)