Calcutta High Court (Appellete Side)

Niranjan Mahato & Ors vs The State Of West Bengal & Anr on 3 May, 2023

            IN THE HIGH COURT AT CALCUTTA
           CRIMINAL REVISIONAL JURISDICTION
                         Appellate Side


Present:

The Hon'ble Justice Ajay Kumar Gupta




                      C.R.R. 2375 of 2022



                     Niranjan Mahato & Ors.
                               Versus
                The State of West Bengal & Anr.




For the Petitioner         :      Mr. Aritra Bhattacharya, Adv.




For the State              :      Mr. Madhusudan Sur, Adv.
                                  Mr. Dipankar Paramanick, Adv.




Heard on                   :      21.04.2023



Judgment on                :      03.05.2023
                              2




Ajay Kumar Gupta, J:

1.

This revisional application has been filed by the Petitioners

under Sections 397/401 read with Section 482 of the Code of

Criminal Procedure, 1973 feeling aggrieved and dissatisfied with the

impugned order dated 17.06.2022 passed by the learned Chief

Judicial Magistrate, Purulia in connection with G.R. Case No.

384/2022 arising out of Balarampur Police Station Case No. 32/2022

dated 19.02.2022 under Sections 498A/302/34 of the Indian Penal

Code, whereby the learned Magistrate issued order of proclamation

and attachment simultaneously against the present petitioners.

2. Petitioners' case, in brief, is that Balarampur Police Station

Case No. 32/2022 dated 19.02.2022 was registered under Sections

498A/302/34 on the basis of complaint lodged by one Ajit Mahato to

the effect that his daughter, namely, Tusu Mahato was married to

one Bimal Mahato on 5th Day of Baisakh last year. He received a

telephonic intimation from his son-in-law that his daughter has no

more. Immediately he and others rushed to the matrimonial house of

his daughter where they were informed that dead body of his

daughter has been sent for post mortem examination at Purulia. It

was his firm belief that son-in-law along with others including the

present petitioners strangulated his daughter resulting her death.

3. After completion of investigation charge-sheet was submitted

under Sections 498A/306/34 of the Indian Penal Code against the

petitioners and two others, namely, Bimal Mahato and Arjun @

Puintu Mahato. In course of investigation, two accused persons,

namely, Bimal Mahato and Arjun @ Puintu Mahato were arrested on

19.02.2022 and subsequently they were enlarged on bail after

incarceration for some times. It is further contended that in view of

the prayer made by the investigating officer warrant of arrest was

issued on 07.05.2022 against the present petitioners. But without

receiving execution report of W/A, the learned Court below further

issued warrant of arrest, proclamation and attachment

simultaneously on 17.06.2022 against the present petitioners is not

sustainable in law. Therefore, the impugned order is perverse and

bad in law. Warrant of arrest, proclamation and attachment against

the present petitioners could not be issued simultaneously.

Therefore, order dated 17.06.2022 is liable to be set aside.

4. Learned counsel appearing on behalf of the petitioners

further relied on a judgment reported in Inder Mohan Goswami &

Anr. Vs. State of Uttaranchal & Ors.1 to support his contention that

warrant of arrest cannot be issued without satisfaction that the

accused are abondance and evading arrest and further submitted

that the Court should be extremely careful before issuing non-

bailable warrant as issuance of warrant of arrest involves interference

of personal liberty of individuals.

5. In reply, learned counsel appearing on behalf of the State

submitted that the petitioners were evaded their arrest, absconded

and concealed themselves as such the learned Court had no option

when prayer was made by the I.O. to issue warrant of arrest.

Accordingly, the learned Court below rightly issued warrant of arrest

against the petitioners on 07.05.2022. Warrant of arrest could not be

executed as the petitioners were evaded their arrest, absconded and

concealed themselves. After receiving such non-execution report of

warrant of arrest, the learned Magistrate rightly issued proclamation

and attachment order under Sections 82 and 83 of the CrPC

simultaneously after being satisfied. Finally, he submitted I.O. fails to

(2008) 1 SCC (Cri) 259

arrest them, warrant could not be executed, the Court has to procure

their attendance, took all processes to bring them before the Court.

Coercive steps have been taken as there was no alternative before the

Court below. Therefore, the Court below rightly issued proclamation

and attachment after receiving non-execution report in respect of

warrant of arrest as such revisional application has devoid of merit

and liable to be dismissed.

6. Heard rival submissions of the parties and on perusal of

record, at the very outset, it is necessary to quote the said impugned

order dated 17.06.2022 passed by the learned Magistrate is as

follows: -

"N.E.R. in respect of W/A against 3 accuseds have been received from O/C Balarampur P.S., Dist.- Purulia of accd. (1) Chamaklata Mahato, (2) Niranjan Mahato, (3) Namani Mahato. Perused the same. Issue W/A and P.A.

Accd. (4) Bimal Mahato is produced before this Court today from D.C.H. Purulia and remanded to J/C till 30.06.2022.

Accd. (5) Pintu Mahato @ Arjun is not produced before this Court today from D.C.H. Purulia.

Supdt. Of D.C.H Purulia is directed to produce the accd before this court on 30.06.2022 at 10.30 A.M.

To 30.06.2022 for production and E/R of W/A and P/A."

7. From the perusal of the aforesaid order and materials

available on record, it reveals after completion of investigation charge

sheet was submitted against the present petitioners and two others,

namely, Bimal Mahato and Arjun @ Puintu Mahato under Sections

498A/306/34 IPC. During investigation, only two accused persons,

namely, Arjun @ Puintu Mahato and Bimal Mahato were arrested and

subsequently both of them were released on bail on 10.05.2022 and

18.06.2022 respectively. Other three accused persons, who are the

present petitioners, were not arrested during investigation.

Furthermore, the de facto complainant alleged that the accused

persons were threatening him. He appeared before the Learned Chief

Judicial Magistrate on 25.03.2022 and made a prayer for necessary

order. On such prayer, the learned Magistrate directed the O/C,

Balarampur P.S. as well as the investigating officer of this case to see

whether the allegations are true or not and they are further directed

to see that no threat is caused by the accused persons upon the de

facto complainant.

8. On 07.05.2022 investigating officer prayed before the learned

Magistrate for issuance of warrant of arrest against the petitioners as

they were absconding and concealing themselves from arrest.

Accordingly, the learned Magistrate issued a warrant of arrest on

07.05.2022 but despite of such issuance of warrant of arrest, the

Court could not procure their attendance as the present petitioners

were neither arrested nor they had been surrendered voluntarily

before the learned Magistrate or obtained any anticipatory bail from

any competent Court.

9. It further reveals from the order dated 07.05.2022 warrant of

arrest was issued against the present petitioners under Section 73 (1)

of the Code of Criminal Procedure which reads as follows: -

"Section 73 (1). Warrant may be directed to any

person. -

(1) The Chief Judicial Magistrate or a Magistrate of the first

class may direct a warrant to any person within his local

jurisdiction for the arrest of any escaped convict,

proclaimed offender or of any person who is accused of a

non-bailable offence and is evading arrest."

From reading of the aforesaid provision, this Court finds the Learned

Magistrate has jurisdiction and power to issue warrant of arrest

under Section 73 (1) when any convict escaped, proclaimed offender

or any person who is accused of a non-bailable offence and is evading

arrest. In the present case conditions as stipulated under section 73

(1) of the CrPC were fulfilled as the offence as alleged are non-bailable

and accused persons were evading arrest. Accordingly, the I.O. of the

case was prayed for issuing warrant of arrest. Accordingly, the

learned Court below issued warrant of arrest.

10. It is true that the Hon'ble Supreme Court in the case of

Raghuvansh Dewanchand Bhasin versus State of Maharashtra

reported in (2012) 9 SCC 791 has held that issuing non-bailable

warrant of arrest directly involves curtailment of liberty of a person. It

is also true the Hon'ble Supreme Court took note of the earlier

judgment in the case of Inder Mohan Goswami versus State of

Uttaranchal reported in (2007) 12 SCC 1. Paragraph 10 of the

judgment rendered in the case of Raghuvansh Dewanchand Bhasin

(supra) is quoted hereunder: -

"10. In Inder Mohan Goswami & Anr. v. State of

Uttaranchal & Ors, a Bench of three learned Judges of this

Court cautioned that before issuing non-bailable warrants,

the courts should strike a balance between societal

interests and personal liberty and exercise its discretion

cautiously. Enumerating some of the circumstances which

the court should bear in mind while issuing non-bailable

warrant, it was observed :

53. Non-bailable warrant should be issued to bring a

person to court when summons or bailable warrants would

be unlikely to have the desired result. This could be when:

It is reasonable to believe that the person will not

voluntarily appear in court; or the police authorities are

unable to find the person to serve him with a summon; or it

is considered that the person could harm someone if not

placed into custody immediately.

54. As far as possible if the court is of the opinion that a

summon will suffice in getting the appearance of the

accused in the court, the summon or the bailable warrants

should be preferred. The warrants either bailable or non-

bailable should never be issued without proper scrutiny of

facts and complete application of mind, due to the

extremely serious consequences and ramifications which

ensue on issuance of warrants. The court must very

carefully examine whether the criminal complaint or FIR

has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court

should direct serving of the summons along with the copy

of the complaint. If the accused seem to be avoiding the

summons, the court, in the second instance should issue

bailable warrant. In the third instance, when the court is

fully satisfied that the accused is avoiding the court's

proceeding intentionally, the process of issuance of the

non-bailable warrant should be resorted to. Personal

liberty is paramount, therefore, we caution courts at the

first and second instance to refrain from issuing non-

bailable warrants."

11. In the instance case petitioners are also the accused persons

in Balarampur Police Station Case No. 32/2022 dated 19.02.2022

under Sections 498A/302/34 were not arrested. I.O. prayed for issue

of warrant of arrest against them when accused persons were evading

arrest and the offence as alleged are non-bailable. So, it needs to be

presumed that they were absconder and evading arrest. The learned

Magistrate issued warrant of arrest on the ground that it was the

allegation that the accused persons were threatening the de facto

complainant and evading arrest. Furthermore, offence as alleged is

non-bailable. Hence, petitioners are unable to get benefits from

aforesaid referred judgments. Accordingly, warrant of arrest issued by

the learned Magistrate appears correct and in accordance with law

which requires no interference.

12. Non-execution report of warrant of arrest was received by the

learned Magistrate on 17.06.2022 as such Learned Magistrate issued

proclamation and attachment under Sections 82 and 83 of the

Cr.P.C. simultaneously. Feeling aggrieved and dissatisfied, petitioners

rushed to this Court with their grievances for set aside the said

impugned order otherwise indefeasible right of the present petitioners

as provided under Section 438 of the Code of Criminal procedure has

been endangered and, in such circumstances, the interference of this

Court is highly solicited.

13. The order has already been quoted above. From the aforesaid

order it can be easily ascertained that no reason whatsoever was

assigned by the learned Magistrate while issuing proclamation and

attachment simultaneously.

14. Now two law points emerge before this Court are as follows:-

1. Whether proclamation and attachment can be

issued simultaneously without assigning

reasons or satisfaction of the Court?

2. Whether impugned order dated 17.06.2022

passed by the learned Magistrate is sustainable

in law as provided in the relevant Sections of

the Code?

Before deciding these issues, this Court would like to refer

Sections 82 and 83 of the Cr.P.C. for ready reference and

discussion:

Section 82. Proclamation for person absconding:

(1) If any Court has reason to believe (whether after taking

evidence or not) that any person against whom a 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.

(2) The proclamation shall be published as follows: --

(i) (a) it shall be publicly read in some conspicuous place

of the town or village in which such person ordinarily

resides;

(b) it shall be affixed to some conspicuous part of the house

or homestead in which such person ordinarily resides or to

some conspicuous place of such town or village;

of the Court-house;

(ii) the Court may also, if it thinks fit, direct a copy of the

proclamation to be published in a daily newspaper

circulating in the place in which such person ordinarily

resides.

(3) A statement in writing by the Court issuing the

proclamation to the effect that the proclamation was duly

published on a specified day, in the manner specified in

clause (i) of sub-section (2), shall be conclusive evidence

that the requirements of this section have been complied

with, and that the proclamation was published on such

day.

(4) Where a proclamation published under sub-section (1)

is in respect of a person accused of an offence punishable

under section 302, 304, 364, 367, 382, 392, 393, 394,

395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460

of the Indian Penal Code (45 of 1860), and such person

fails to appear at the specified place and time required by

the proclamation, the Court may, after making such inquiry

as it thinks fit, pronounce him a proclaimed offender and

make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to

a declaration made by the Court under sub-section (4) as

they apply to the proclamation published under sub-

section (1).]

Section 83: Attachment of property of person

absconding:

(1) The Court issuing a proclamation under section 82 may,

for reasons to be recorded in writing, at any time after the

issue of the proclamation, order the attachment of any

property, movable or immovable, or both, belonging to the

proclaimed person:

Provided that where at the time of the issue of the

proclamation the Court is satisfied, by affidavit or

otherwise, that the person in relation to whom the

proclamation is to be issued,--

(a) is about to dispose of the whole or any part of his

property, or

(b) is about to remove the whole or any part of his property

from the local jurisdiction of the Court,

it may order the attachment simultaneously with the issue

of the proclamation.

(2) Such order shall authorise the attachment of any

property belonging to such person within the district in

which it is made; and it shall authorise the attachment of

any property belonging to such person without such

district when endorsed by the District Magistrate within

whose district such property is situate.

(3) If the property ordered to be attached is a debt or other

movable property, the attachment under this section shall

be made--

(a) by seizure; or

(b) by the appointment of a receiver; or

property to the proclaimed person or to any one on his

behalf; or

(d) by all or any two of such methods, as the Court thinks

fit.

(4) If the property ordered to be attached is immovable, the

attachment under this section shall, in the case of land

paying revenue to the State Government, be made through

the Collector of the district in which the land is situate, and

in all other cases--

(a) by taking possession; or

(b) by the appointment of a receiver; or

delivery of property to the proclaimed person or to any one

on his behalf; or

(d) by all or any two of such methods, as the Court thinks

fit.

(5) If the property ordered to be attached consists of live-

stock or is of a perishable nature, the Court may, if it

thinks it expedient, order immediate sale thereof, and in

such case the proceeds of the sale shall abide the order of

the Court.

(6) The powers, duties and liabilities of a receiver

appointed under this section shall be the same as those of

a receiver appointed under the Code of Civil Procedure,

1908 (5 of 1908)."

15. It is clear from the provision mentioned in Sub-section (1) of

Section 82 of the Code that the Court must have reasons to believe

that the person, against whom warrant has been issued, has

absconded or concealing himself so that the warrant cannot be

executed. In view of the said provision, only after the Court is

satisfied that the person is absconding, or is concealing, and it is not

possible to arrest him, the Court should issue proclamation requiring

the accused to appear on a specified date on specified time not less

than 30 days from the date of publication of such proclamation.

16. Thus, satisfaction of the Court has to be recorded in the

order while issuing processes under Section 82 of the Code but order

does not indicate the same. Sub-section (1) of Section 82 of the Code

provides that the Court has to publish the written proclamation

requiring the person to appear on a specified date and specified place

not less than 30 days from the date of such publication. Thus, it is

the duty of the Court to mention the specific place and the date

where the person needs to be present him in compliance of the

proclamation order. This date and place should be mentioned in the

order itself. Form IV, which is part of Second Schedule of Code is the

Form in which proclamation is required to be issued. This is a

statutory Form. This Form is required to be filled up by the Office of

the Court. Thus, the date and place, which is mentioned in the said

Form, must also be reflected in the order sheet. This will mean that

the Court has fixed the place, time and the date and not the Bench

Clerks or the Office Clerks, as it is the mandate of the law that the

Court has to fix the place, time and the date of appearance. The Form

IV, must be filled up as per the date, time, place fixed by the Court,

which should be reflected in the order sheet.

17. The Hon'ble Supreme Court after relying on other

judgments, has held in the case of State of Madhya Pradesh versus

Pradeep Sharma reported in (2014) 2 SCC 171, that :-

"if a person is declared as proclaimed offender/absconder

in terms of Section 82 of the Code, he is not entitled for

relief of anticipatory bail."

Thus, when the relief of anticipatory bail is curtailed, as a

consequence of an order passed under Section 82 of the Code,

declaring a person absconder/proclaimed offender, the said order

cannot be passed in mechanical manner without recording

satisfaction and reasons nor can be passed without following the

procedure as laid down in the Code. In view of the aforesaid

circumstances and the consequence one has to face, the Court has to

be very cautious while issuing an order under Section 82 of the Code.

18. While going through the order under challenge, this Court

finds that simply after receiving non-execution report of warrant of

arrest, the Court had issued order of proclamation and attachment

under Sections 82 and 83 of the Code simultaneously in a most

mechanical manner without recording subjective satisfaction as to

why it is necessary to issue the proclamation and attachment.

19. The petitioners challenged the said order before this Court

as the Magistrate issued proclamation and attachment order in terms

of Sections 82 and 83 of the Code simultaneously. There is an

exception to this rule when both the processes, i.e. proclamation

under Section 82 of the Code and attachment order in terms of

Section 83 of the Code are issued simultaneously. The first proviso to

Section 83 (1) of the Code provides for the circumstance and the

situation where it is necessary to issue both the proclamation and

attachment order simultaneously and how the same can be issued

and the requirements thereof. Court can issue Proclamation and

Attachment simultaneously provided the Court should satisfy, by

affidavit or otherwise, that the person in relation to whom the

proclamation is to be issued : -

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the

proclamation. Then only Court may order the attachment simultaneously with the issue of the proclamation.

20. Section 83(1) of the Code clearly provides the Court, which is

issuing proclamation under Section 82 of the Code, for the reasons to

be recorded in writing, may issue order for attachment of movable or

immovable properties. It is, thus, the mandate of the law that the

reasons for issuing attachment order simultaneously have to be

recorded in the order itself. Non recording of the reasons will make

the order absolutely bad and unsustainable in the eyes of law.

21. In the case in hand, no reasons, as necessitated in terms of

Section 83(1) of the Code is mentioned in the impugned order.

Furthermore, there is no statement in compliance of Section 82(1) of

the Code available on record. These lapses make the impugned order

under Sections 82 and Section 83 of the Code bad in law, which