Calcutta High Court (Appellete Side)
Chiranjit Barui @ Chranjit Barai vs State Of West Bengal on 25 March, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Jay Sengupta
C.R.R. 569 of 2022
Chiranjit Barui @ Chranjit Barai
Versus
State of West Bengal
For the petitioner : Mr. Sumanta Chakraborty
For the State : Mr. Imran Ali
Mrs. Sutapa Banerjee
Heard on : 25.03.2022
Judgment on : 25.03.2022
Jay Sengupta, J.:
This is an application challenging an order dated 16.12.2021 issuing
warrant of arrest against the petitioner as also an order dated 07.01.2022
issuing proclamation and attachment against the petitioner as passed by
the learned Chief Judicial Magistrate, Barasat, North 24 parganas in G.R.
Case No. 4117 of 2021.
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Mr. Chakraborty, learned counsel appearing on behalf of the
petitioner submits as follows. The petitioner is a permanent employee of the
Railways and he is posted at Tiruchirapalli in Tamil Nadu. Possibly that is
the reason why the investigating officer could not get in touch with the
petitioner. The FIR in the present case was lodged on 21.11.2021. At the
stage of investigation, on 16.12.2021 the investigating officer prayed for
issuance of warrant of arrest against the petitioner. The same was issued
fixing the next date as 21.01.2022 for execution return. However, before
such time, on 07.01.2022 the investigating officer made a prayer for
issuance of orders of proclamation and attachment against the petitioner
and on such prayer the learned Magistrate was pleased to issue warrant of
proclamation and attachment against the present petitioner. This cannot be
sustained in the eye of law. There has to be a report regarding non-
execution of warrant of arrest and the concerned Magistrate has to be
satisfied about the same before he can proceed to issue a proclamation.
That apart, an order of attachment can be issued only after exhausting the
procedure for issuance of proclamation. Due to such illegal order of
issuance of proclamation and attachment, the petitioner's anticipatory bail
prayer before the learned Sessions Court was turned down as the same was
held not maintainable. The orders issuance of warrant of arrest of
proclamation and attachment against the petitioner cannot be sustained in
the eye of law.
Learned counsel appearing on behalf of the State submits as follows.
The prayer of the investigating officer for issuance of proclamation and
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attachment can be treated as a substitute for submission of non-execution
report for the warrant of arrest. Even if the issuance of proclamation and
attachment is held to be illegal, there is no illegality whatsoever in the
issuance of warrant of arrest against the petitioner as he was found
absconding.
I have heard the submissions of the learned counsels appearing on
behalf of the petitioner and the State and have perused the revision petition.
It is open to an investigating officer of the case to pray for issuance of
warrant of arrest against an accused if the accused could not be found or
apprehended by him.
As such, there is no illegality in such prayer and after due
consideration of such prayer, a warrant of arrest was issued in this case.
However, although a date was fixed for filing of the execution report on
21.01.2022
, the investigating officer filed an application at a prior date, i.e.,
on 07.01.2022 and without filing any non-execution report, simply prayed
for issuance of proclamation and attachment.
Learned Magistrate also did not insist upon filing of a non-execution
report and simply went on to issue of a proclamation and attachment on
such application. This cannot be sustained in the eye of law.
Besides, proclamation and attachment cannot be issued
simultaneously on the first date. Sections 82 and 83 of the Code give a
detailed procedure in respect of issuance of proclamation and attachment.
An order of attachment can be issued only after exhausting the whole
process.
Therefore, the order issuing proclamation and attachment in the
present case cannot be sustained.
Therefore, although the challenge to the order dated 16.12.2021 is
rejected, the order dated 07.01.2022 is partly set aside to the extent of
issuance of proclamation and attachment against the petitioner.
With these observations, the revisional application is disposed of.
Urgent photostat certified copy of this judgment may be supplied to
the parties expeditiously, if applied for.
(Jay Sengupta, J)
tbsr
