Calcutta High Court (Appellete Side)
Shishir Ghosh & Ors vs The State Of West Bengal & Anr on 9 December, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 2984 of 2022
Shishir Ghosh & Ors.
-Vs-
The State of West Bengal & Anr.
For the Petitioner: Mr. Kallol Mondal, Adv.,
Mr. Krishan Ray, Adv.,
Mr. Souvik Das, Adv.
For the State: Mr. Rudradipta Nandy, Adv.,
Mrs. Sonali Das, Adv.
For the Opposite Party No.2:
Mr. Soumyajit Das Mahapatra, Adv.,
Mr. Shamik Chatterjee, Adv.,
Mr. Aditya Bikram Mahata, Adv.,
Ms. Pushpita Bhowmick, Adv.,
Ms. Rima Biswas, Adv.
Heard on: 16 November, 2022.
Judgment on: 09 December, 2022.
BIBEK CHAUDHURI, J. : -
1.
Petitioners are the charge-sheeted accused persons in connection
with Mangalkote Police Station Case No.34 of 2021 dated 27th January,
2021 for offences punishable under Sections 341 /326 /307
/302/120B/212/34 of the Indian Penal Code corresponding to GR Case
No.89 of 2021 pending before the learned Additional Chief Judicial
Magistrate, Katwa in the District of Purba Bardhaman.
2. The petitioners have challenged order dated 9th April, 2021 and all
other subsequent orders passed by the learned Magistrate in connection
with aforesaid case.
3. It is submitted by the petitioners that after registration of the
aforesaid FIR case on 27th January, 2021 the learned Additional Chief
Judicial Magistrate, Katwa issued warrant of arrest against the petitioners
vide order dated 18th March, 2021. In execution of warrant of arrest, some
accused persons were arrested. On 9th April, 2021 the Investigating
Officer made an application before the learned Magistrate for issuance of
proclamation and attachment against the petitioners. The learned
Magistrate allowed the prayer for issuance of proclamation. On 14th April,
2021 charge-sheet was filed against 44 accused persons including the
petitioners before the said court of the learned Magistrate. On 24th June,
2021 the Investigating Officer submitted a report of proclamation issued
against the accused persons/petitioners. On 16th February, 2022 the
learned Magistrate issued order of attachment against the petitioners. The
Investigating Officer submitted a report on 5th April, 2022 after executing
the writ of attachment with 'Nil' seizure list.
4. It is submitted by Mr. Kallol Mondal, learned Advocate for the
petitioners that an order of proclamation for person absconding can only
be passed by the learned Magistrate under the provision of Section 82(1)
of the Code of Criminal Procedure if the court has reason to believe that
the person against whom warrant of arrest has been issued has
absconded or is concealing himself so that such warrant cannot be
executed. The order dated 9th April, 2021 does not contain subjective
satisfaction of the learned Magistrate on the point that the petitioners
have been absconding or concealing themselves so that warrant issued
against them could not be executed.
5. The learned Advocate for the petitioners then takes me to the order
dated 24th June, 2021 passed by the learned Magistrate regarding non-
execution of warrant of proclamation and attachment against the
petitioners. On the same date the Investigating Officer submitted
execution report of proclamation after service against the petitioners.
Finally on 16th February, 2022, the learned Magistrate issued order of
attachment of property, movable or immovable belonging to the
proclaimed offenders.
6. It is ascertained from the submission made by the learned Advocate
for the petitioners that they are aggrieved against the order dated 9th
April, 2021 on the ground that the order of proclamation was issued
without subjective satisfaction which is contrary to the provision of
Section 82 of the Cr.P.C.
7. The learned P.P-in-Charge, on the other hand has supported the
impugned orders passed by the learned Magistrate. He specifically refers
to the order dated 9th April, 2021 where it is recorded by the Magistrate
that he has perused the prayer of the Investigating Officer. He also heard
the learned Counsels and prayer of the Investigating Officer for
proclamation which was allowed. Therefore, it is not the case as pointed
out by Mr. Mondal that Investigating Officer did not make any prayer for
issuance of proclamation against the accused persons.
8. Indisputably, the petitioners are accused in a case under Section
302 of the IPC. In Vimalben Ajitbhai Patel vs Vatslabeen Ashokbhai
Patel & Ors reported in (2008) 4 SCC 649 it was held by the Hon'ble
Supreme Court that Section 82 of the Cr.P.C was enacted to secure
presence of the accused before the court. On the achievement of the said
purpose, the order of force of the attachment does not exist. Section 82 of
the Code has laid down the conditions when a person against whom an
order of proclamation is issued may be declared to be an absconding
offender. Where a court has issued warrant of arrest against a person and
the court has presumed to believe that such person has either absconded
or is concealing himself so as to ditch the court, the court may issue an
order of proclamation against such person, ordering them to appear
before the court on a certain date at a certain time. If in terms of the order
of proclamation the accused fails to appear he is declared as proclaimed
offender. It is at that stage, the court can issue an order of attachment of
that property of the absconding accused.
9. Coming to the instant case, it is found from the order dated 9th
April, 2021 that the learned Magistrate issued order of proclamation
against the accused persons on the prayer of the Investigating Officer who
failed to execute the warrant of arrest and prayed for issuance of order of
proclamation.
10. I do not find any illegality or material irregularity in the impugned
order.
11. Accordingly, the instant revision being devoid of any merit is
dismissed on contest.
12. The records of CRM (A) 461 of 2022, CRM 6018 of 2021 and CRM
(DB) 3295 of 2022 be returned to the Criminal Section.
(Bibek Chaudhuri, J.)
