Pawan Singh vs State Of U.P. Thru. Prin. Secy. Home U.P. ...
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Allahabad High Court

Pawan Singh vs State Of U.P. Thru. Prin. Secy. Home U.P. ... on 8 May, 2024

Author: Karunesh Singh Pawar

Bench: Karunesh Singh Pawar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:35812
 
Court No. - 15
 

 
Case :- APPLICATION U/S 482 No. - 3416 of 2024
 

 
Applicant :- Pawan Singh
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Lko. And Another
 
Counsel for Applicant :- Mithila Bakhsh Tiwari,Ramesh Chander Pandey
 
Counsel for Opposite Party :- G.A.,Santosh Srivastava
 

 
Hon'ble Karunesh Singh Pawar,J.
 

1. Sri Anil Kumar, the Investigating Officer is present before this Court along with the record.

2. Heard learned counsel for the petitioner, learned A.G.A. for the State-respondent No.1 as well as learned counsel for private respondent No.2.

3. By this petition, the petitioner has prayed for the following relief:-

"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned orders dated 05.02.2024, 06.03.2024 as well as 19.03.2024, in Case No. 433/ 2023, under section 147/323/420/467/468/ 471/504/506 IPC, Police Station - BKT, District- Lucknow passed by learned Additional Chief Judicial Magistrate -5TH Lucknow by which learned Additional Chief Judicial Magistrate Lucknow has issued NBW on 05.02.2024 and proclamation under section 82 Cr.P.C. on 06.03.2024 and proclamation under section 83 Cr.P.C. on 19.03.2024 against the petitioner and 2 others, contained in Annexure No.1, 2 & 3 to this petition."

4. Learned counsel for the petitioner has submitted that on coming to know of the present F.I.R., the petitioner filed Criminal Misc. Writ Petition No.9198 of 2023 : Raghvendra Pratap Singh @ Chhedu & Ors. vs. State of U.P. & Ors. which was dismissed by a Division Bench of this Court. Thereafter, the petitioner filed anticipatory bail application before the District Judge, Lucknow which was also rejected vide order dated 16.01.2024. Then the petitioner has filed anticipatory bail application before this Court on 07.02.2024 which is pending adjudication.

He submits that the Investigating Officer malafidely in order to frustrate the purpose of anticipatory bail application moved an application before the learned Additional Chief Judicial Magistrate-V, Lucknow for obtaining Non-bailable Warrants against the petitioner and thereafter on 26.02.2024, the Investigating Officer of the case has moved an application before the trial court for obtaining the proclamation under Section 82 Cr.P.C., however, the petitioner had no knowledge about the Non-bailable Warrants issued on 05.02.2024 and the proclamation under Section 82 Cr.P.C.

He further submits that the petitioner is not avoiding to appear before the trial court but without serving the Non-bailable Warrants, proclamation under Section 82 Cr.P.C. has been issued against the petitioner and that too without any affidavit of the Investigating Officer.

5. Learned A.G.A. has opposed the contention and submitted that proclamation under Section 82 Cr.P.C. has been issued on the affidavit of the Investigating Officer. The proclamation was issued on 06.03.2024 and it was served at the address of the petitioner on 16.03.2024, however, he admitted that while publishing the written proclamation, specified place and time has not been mentioned therein. He has produced a copy of the written proclamation published by the court under Section 82 Cr.P.C.

He further submits that after an affidavit has been given by the Investigating Officer on 19.03.2024 before the concerned court for issuing process under Section 83 Cr.P.C., the order was passed.

6. Heard learned counsel for the parties and perused the record.

7. A perusal of the proclamation shows that it is on a typed format wherein the gaps have been filled. There is no mention of any date or time for the accused petitioner to appear before the court of Additional Chief Judicial Magistrate-V, Lucknow. The proclamation issued by the court under Section 82 Cr.P.C. appears to have been issued very casually and without application of mind and it is de hors the provisions of Section 82 Cr.P.C. and consequently, after this proclamation, the Investigating Officer appears to have given an affidavit dated 19.03.2024 i.e. at the time of issuing order under Section 83 Cr.P.C.

A bare reading of the provisions of Section 82 Cr.P.C. shows that the magistrate has to wait until the expiry of thirty days to enable the accused to appear in the court.

Likewise, proclamation under Section 83 Cr.P.C. also appears to have been issued in ignorance of these facts and the 30 days mandatory period provided under Section 82(1) Cr.P.C. prima facie seems to have been violated. Further, it is significant to note that the Non-bailable Warrant was issued on 05.02.2024 and the proclamation under Section 82 Cr.P.C. was published on 06.03.2024, however, the record does not show that any affidavit explaining non-execution of the warrant on the applicant has been moved by the Investigating Officer along with the application dated 21.02.2024 seeking an order of proclamation under Section 82 Cr.P.C. As narrated above, the proclamation under Section 82 Cr.P.C. was published on 06.03.2024 and the order of attachment under Section 83 Cr.P.C. was passed on 19.03.2024 i.e. within thirty days of publication under Section 82 Cr.P.C. which is apparently in violation of mandatory provisions under Sections 82 & 83 Cr.P.C. The learned magistrate without going through the legal proposition, in a casual manner and without application of judicious mind passed the impugned order.

A Co-ordinate Bench of this Court in Vinod Kumar Singh @ Vinod Singh vs. State of U.P. ; U/S 482/378/407 No.5195 of 2021 decided on 10.12.2021 has held as under:-

"..............Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that if the accused person does not co-operate with the investigation, the coercive process are the only way out to be issued against him. But, at the same time, it is incumbent upon the Investigating Agency to follow the process of law step by step. The I.O. shall have to ensure that despite his all possible efforts, the accused person is not co-operating with the investigation so the bailable and non-bailable warrant should be issued. The efforts to serve such process upon the applicant should have been indicated in the application before seeking proclamation order under Section 82 Cr.P.C. and the Magistrate concerned must have subjective satisfaction, after verifying the relevant fact that despite all possible efforts and service of process of warrants, the accused person is not co-operating with the investigation, the Magistrate may very well issue the N.B.W. or/and the proclamation under Section 82 Cr.P.C............."

In view of what has been stated herein above and keeping in view the judgment above extracted, this Court is of the opinion that the court while issuing the proclamation has violated the provisions of Section 82(1) Cr.P.C. as no place and time to appear has been specified nor it has been taken note of that the warrant issued against the accused petitioner has been served or not and therefore, such proclamation issued on 06.03.2024 is de hors the provisions of Section 82 Cr.P.C. and as such, is liable to be set aside. Consequently, the order passed under Section 83 Cr.P.C. dated 19.03.2024 is also liable to be set aside, considering the fact that charge-sheet has been filed and the anticipatory bail application of the applicant is pending adjudication before this Court.

8. Accordingly, the petition stands allowed. The impugned orders dated 06.03.2024 as well as 19.03.2024 (supra) are hereby set aside. It shall be open for the trial court to proceed in accordance with law.

Order Date :- 8.5.2024

Saurabh Yadav/-