Babun Midder vs The State Of West Bengal
2021 Latest Caselaw 1256 Cal

Form No. J(2)

                 IN THE HIGH COURT AT CALCUTTA
                        Criminal Revisional Jurisdiction

Present:
The Hon'ble Justice Jay Sengupta
                                 CRR 1537 of 2020
                                     with
                                 CRAN 1 of 2020

                             BABUN MIDDER
                                     VS
                       THE STATE OF WEST BENGAL

For the Petitioner               :     Mr. Satadru Lahiri
                                       Mr. Safdar Azam
For the State                    :      Mr. Madhusudan Sur
                                        Mr. Dipankar Paramanick

Heard on                         :      9th February 2021

Judgment on                      :      9th February 2021


The Court:
                                     CRAN 1 of 2020

       Learned counsel appearing on behalf of the petitioner submits that

there is a delay of thirty-three days in preferring the revision and an

application under Section 5 of the Limitation Act seeking condonation of delay

has been filed in this regard.

       After hearing the learned advocates for the petitioner and the State and

upon going through the explanation provided at paragraphs 3 to 5 of the

application for condonation of delay, I am satisfied with the explanation given.

       In view of the above, the delay is condoned and the application under

Section 5 of the Limitation Act is allowed.
                                         2




       Accordingly, CRAN 1 of 2020 is disposed of.

                                    CRR 1537 of 2020


       This is an application challenging the orders dated 15.06.2020 issuing

warrant, proclamation and attachment against the petitioner.

       Learned counsel appearing on behalf of the petitioner submits as

follows. The petitioner was not named in the F.I.R. Subsequently, a charge

sheet was submitted against the petitioner and other co-accused on

27.07.2020

. On 22.05.2020 upon a prayer made by the prosecution, a warrant

of arrest was issued against the present petitioner fixing 01.06.2020 as the

next date. On 01.06.2020 a non-execution report was filed and the next date

was fixed as 15.06.2020. On 15.06.2020 the investigating officer prayed for

issuance of proclamation and attachment. On the same day, the prayer of the

investigating officer was allowed and an order of proclamation and attachment

was issued against the petitioner. First, no report for non-execution of the

warrant of arrest was filed on 15.06.2020. Secondly, no period of thirty days

was indicated as required under Section 82 of the Code. The impugned

orders cannot be sustained in the eye of law. Moreover, an attachment could

be issued against an accused under Section 83 of the Code only after the

issuance of an order of proclamation. The same cannot be done

simultaneously on the first date.

Learned counsel appearing on behalf of the State submits as follows.

From the records it is clear that a non-execution report was submitted by the

prosecution on 01.06.2020. However, it is true that on 15.06.2020 no non-

execution was filed before the learned Magistrate. The records cannot be

disputed that the order of proclamation and attachment was issued together

and no period of 30 days was mentioned.

I have heard the submissions of the learned advocates appearing on

behalf of the parties and have perused the revision petition and the certified

copy of the order sheet annexed with the petition.

Section 82 of the Code requires that if a Court has reason to believe

that any person against whom 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.

Even if one does not go into the question whether filing of a non

execution report in respect of warrant of arrest could serve the purpose if an

order of proclamation and attachment issued at a subsequent stage, it is

apparent from the records that the order of issuance of proclamation and

attachment suffers from serious irregularities.

First, there is no mention of the period of not less than 30 days in the

order passed under Section 82 of the Code.

Secondly, it is settled law that an order of attachment as contemplated

under Section 83 of the Code cannot be passed without first issuing a

proclamation.

In view of the above, the order dated 15.06.2020 issuing proclamation

and attachment against the present petitioner is set aside. However, no

interference is made with the order of warrant of arrest issued against the

petitioner. It shall also be open to the learned Court below to consider the

question of issuance of proclamation afresh. The learned Magistrate shall

continue the proceeding from the stage of issuance of warrant of arrest and

shall take appropriate steps to secure attendance of the present petitioner.

With these observations, the revisional application is disposed of.

Urgent photostat certified copy of this order may be supplied to the

parties expeditiously, if applied for.

(Jay Sengupta,J.) SB