Parvez Alam Ansari vs State Of U.P. Thru. Its Prin. Secy. ...
2023 Latest Caselaw 22328 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:54960
 
Court No. - 28
 

 
Case :- APPLICATION U/S 482 No. - 8114 of 2023
 

 
Applicant :- Parvez Alam Ansari
 
Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Home, Civil Secrett. Lko. And Another
 
Counsel for Applicant :- Saubhagya Mishra,Shikhar Chaube
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

Since, the pure legal question is involved in the instant matter, therefore, the notice to opposite party no. 2 , is hereby dispensed with.

Heard Sri Saubhagya Mishra and Sri Shikhar Chaube, learned counsels for the applicants, Sri Girijesh Dwivedi, learned A.G.A. for the State and perused the material placed on record.

The instant application under section 482 Cr.P.C. has been filed with the prayer to quash the entire criminal proceedings bearing Case No. 2285 of 2022, arising out of Case Crime No. 603 of 2020, under sections 406 & 420 of I.P.C., Police Station-Kotwali Nagar, District-Sultanpur as well as the Chargesheet No. 01 dated 19-09-2021 and the non-bailable warrant as well as the proceedings of section 82 & 83 of Cr.P.C., wherein the cognizance has been taken upon the chargesheet dated 19-09-2021 and the applicant has been summoned vide order dated 07-03-2022 followed by the bailable warrant dated 13-03-2023 & 10-05-2023, thereafter, non bailable warrant as well as proceedings of section 82 of Cr.P.C. and thereafter, the proceeding under section 83 of Cr.P.C.(Process of Attachment of Property) has been initiated on 02-08-2023 by learned Chief Judicial Magistrate, Court No. 16, Sultanpur.

Contention of learned counsel for the applicant is that the first information report was lodged on 02-07-2020, on an application moved by the opposite party no. 2 under section 156(3) of Cr.P.C. and thereafter, the chargesheet was filed on 19-09-2021 and the trial court took the cognizance and issued summons on 07-03-2022. He submits that on 13-03-2023, the learned trial court has issued bailable warrant to the applicant, which was also not served. Further submission is that the summons were never served upon the present applicant and straightway, bailable warrant, non-bailable warrant and the proclamation under sections 82 & 83, has been issued.

He next added that from bare perusal of the ordersheet, it transpires that the order of proclamation under section 82 of Cr.P.C. has been passed on 06-06-2023, but, there is no reason recorded so as to believe that the applicant will abscond.

He submits that it is settled law that while issuing the proclamation under section 82 of Cr.P.C., reasons must be recorded. In support of his contentions, he has placed reliance on the Judgment and order dated 23-06-2022 passed by this court, in application under section 482 Cr.P.C. bearing no. 3899 of 2022, Vivekanand Dobriyal Versus State of U.P. and Others, and has referred paragraph nos. 14 & 16 of the Judgment, which are quoted hereinunder :-

"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.

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. "

Referring the aforesaid, he submits that the case of the present applicant is squarely covered with the ratio of Judgment abovesaid.

He has also drawn attention of this court towards Annexure No. 3 at page no. 41 of the instant application, which is the proclamation issued under section 82 of Cr.P.C. and has pointed out that no date and place has been mentioned therein, though there is mandate of proclamation issued under section 82 of Cr.P.C. that the date and place must be mentioned in such proclamation. Thus, submission is that the order dated 06-06-2023 as well as the subsequent orders thereof, are against the settled proposition of law, as well as against the mandate of section 82 of Cr.P.C. and thus, same are liable to be set aside.

On the other hand,learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that from a bare perusal of the ordersheet, which has been annexed by the applicant, it transpires that the summons have been issued in the month of March,2022 and the present applicant has deliberately avoided the proceedings before the trial court and thus, he has not come with clean hands. He added that the present applicant is absconding and he is avoiding the trial court proceedings and thus, the applicant is not entitled for any relief.

Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it transpires that the present matter is arising out of an application moved under section 156(3) of Cr.P.C.,whereby an order was passed for lodging the first information report and thereafter, the first information report was lodged and the chargesheet was filed and the present applicant was summoned vide order dated 07-03-2022 and later on NBW and proceedings under section 82 and 83 of Cr.P.C. was also set into motion.

It has specifically been stated in paragraph no. 6 of the affidavit filed in support of the instant applicant that no summon has ever been served upon the present applicant.

This court has further noticed the fact that vide order dated 06-06-2023, the order of non bailable warrant and the proclamation under section 82 of Cr.P.C. has been issued.

From bare perusal of the ordersheet, it transpires that no reason has been recorded while issuing the proclamation under section 82 of Cr.P.C. though, it is settled proposition of law that once the proclamation is issued, the court must record 'reasons to believe' that the proclamation is being issued because there is an apprehension that such accused shall abscond.

It has further been considered by this court that the proclamation, which has been issued, does not contain, date and place as is evident from the form of the proclamation itself, though, there is mandate of section 82 of Cr.P.C. that while issuing such proclamation under section 82 of Cr.P.C., the date and place must be mentioned in such proclamation, which also shows erroneousness, in issuing the proclamation under section 82 of Cr.P.C.

In view of the aforesaid submissions and discussions, the order dated 06-06-2023 and the subsequent orders thereof, are erroneousness and against the settled proposition of law.

Resultantly, the order dated 06-06-2023 and the consequential orders are hereby set aside.

The matter is remitted back to the learned trial court concerned to pass fresh orders in accordance with law in the light of the observations made hereinabove.

It shall be open for trial court concerned to consider all the questions so far as the merit of the case, is concerned.

It is further directed that the present applicant shall appear before the trial court concerned on 28-08-2023 and he will keep on appearing before the trial court concerned, on each and every date, unless for unavoidable circumstances.

With the aforesaid observations and directions, the present application is allowed.

Order Date :- 18.8.2023

AKS