The Rajasthan High Court has cautioned Courts that they should not rush to issue standing warrant and initiating proceedings under Sections 82 and 83 of the Code, unless they are satisfied that the accused is intentionally evading or circumventing the warrants in order to avoid the prosecution.
The single-judge bench of Justice Dinesh Mehta opined that endeavor of a Court should be to ensure proper compliance of the statutory provisions and service of the summons as mandated by law.
The Court stressed that Service of Summons being a bed-rock of 'Principles of Natural Justice', the Trial Courts before issuing standing warrant and initiating proceedings under Sections 82 and 83 CrPC, are required to record a categorical finding/ satisfaction that in spite of knowledge of the warrant, the accused has avoided appearance in the Court or has evaded the warrant.
In the present petition, Magistrate via the impugned order declared the petitioner 'absconder' and initiated proceedings under Sections 82 and 83 CrPC.
The Counsel for the petitioner contended that his client never received any summons and that Trial Court proceeded on conjectures, without recording any finding as to when the petitioner was served with the summons.
It was argued that without recording its satisfaction about petitioner’s intention to avoid the proceedings or to abscond, the trial Court has initiated proceedings under Sections 82 and 83 of the Code and issued standing warrant against the petitioner, ignoring the facts and law involved in the present case.
The Court after analysing in detail stated that the Trial Court passed the impugned order simply because it observed/found that the petitioner has not appeared on the dates fixed by it, without even examining or recording as to whether bailable warrant has been served or not.
It further reflected on the diligence required of the courts before proceeding under Sections 82 and 83 CrPC and observed that mere non-appearance on dates fixed by court isn't sufficient to amount to a ‘reason to believe’ that a person has absconded or concealed himself such that warrant can’t be executed.
It cited Rohit Kumar vs. State of NCT Delhi, in which it was held:
"The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation.”
Noting that declaration of a ‘proclaimed offender’ under Section 82 CrPC entails severe consequences and hence, the Courts must exercise caution before proceeding against the accused under Section 82 of the Code, the Court cited SC Ruling in Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others, 2007 Latest Caselaw 807 SC.
In the present matter, the Court opined that the Trial Court nitiated action under Sections 82 and 83 CrPC in the absence of any cogent reason to show that the accused is absconding such that warrant cannot be served.
It examined the impugned order and opined that mere recording a ‘it appears that accused has absconded' is insufficient to proceed under Section 82 of the Code because of the expression “such warrant cannot be executed”.
"The alleged absconding or concealment must be for the purpose of avoiding the warrant. The expression “such warrant cannot be executed” is extremely important because what is required to be ascertained is, that the accused is absconding despite being aware of the warrant. In the absence of such finding, it cannot be said that the accused is dodging or evading the warrant."
The Court listed Trial Court's ignorance and stated that it lost the sight of the fact that on most of the occasions even the summons were not issued due to the fault of the office. Second ignorance was with the 'period in question', as the Court pointed out, it was the time of Covid-19, I and II wave which practically brought everything to standstill.
Stating that there was no material to infer let alone conclude that the petitioner has absconded, the Court said thirdly, the trial Court has not shown the basis on which it has concluded that the alleged absconding/concealment by the present petitioner was to avoid execution of the warrant.
The petition was thus allowed and the impugned order was set aside.
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