HC to Trial Judges: You can't pass Mechanical Nonspeaking Orders for issuance of NBW or Sec.82-83 CrPC. [Read Judgement]

The Jharkhand High Court, in one of its recent judgement has reiterated that non-bailable warrant of arrest and processes and order of attachment under the CrPC can't be issued in a mechanical manner.

The bench led by Justice Anands Sen has clarified that the Court has to record its satisfaction with regard to the pre-requisites before passing such an order.

He quoted saying:

"Non-recording of subjective satisfaction in the order will make the order bad and a non-speaking one. A non-speaking order involving a procedure, which attracts a penal offence (if the order is not complied with), cannot sustain in the eyes of law."

CASE TITLE: Md. Rustum Alam @ Rustam & Ors. v. State of Jharkhand

CASE FACTS:

The petitioners has filed an application under Section 482 of CrPC for quashing the orders pertaining which non-bailable warrant of arrest and process and order of attachment had been issued against the him by the Magistrate Court.

He contended that the Court had issued non-bailable warrant of arrest in their names, without receipt of the service report of bailable warrant of arrest.

It was submitted that there was no any service report of non-bailable warrant of arrest, even though the process under Section 82 of CrPC had been issued for declaring them as proclaimed offenders.

The petitioners stated that without any service of the process under Section 82 CrPC, attachment order in terms of Sec 83 had been issued.

The High Court on listening the arguements, found merits on the grounds laid in the application so filed. It thus quashed impugned order and regarded that they had been passed without due application of mind.

HIGH COURT JUDGEMENT

The High Court in its judgement delivered set precedendant on the following facts:

Issuance of Non-bailable Warrant of Arrest

The Bench stated that in terms of Sec 73 of CrPC, the Magistrate has jurisdiction and power to issue warrant of arrest, which can be directed against any

(i) escaped convict, (ii) proclaimed offender, or (iii) against any person who is an accused of a non-bailable offence and is evading arrest.

The rule of law is that any person against whom warrant of arrest can be issued, must fall in either of the aforesaid three categories.

Concerning to the case in hand, the Court thus held that when warrant of arrest was issued the Petitioners were neither escaped convicts nor proclaimed offenders. They had failed to appear before the Court and therefore the only category they nearly fall in is the third category, i.e., "an accused of a non-bailable offence and is evading arrest."

The Court clarified that only being an accused of a non-bailable offence is not a ground to issue warrant of arrest. It put stress on the conjunction "and", the held that the accused must also be evading arrest.

The Court thus observed:

"Only being an accused of a non-bailable offence is not a ground to issue warrant of arrest, as per the provisions of Section 73 of the Code. The said accused, who is wanted in a case involving a non-bailable offence, must also be evading his arrest. The word 'and' used in Section 73(1) of the Code is a conjunctive clause. Thus, both the conditions should simultaneously exist to enable the Court to issue warrant of arrest. This position of law should have been considered by the Court while issuing a warrant of arrest. This means that a person not only should be an accused of an offence, non-bailable in nature, but also should be found evading his arrest. There is nothing in the impugned orders to suggest that the petitioners were evading arrest."

It further added that execution of non-bailable warrant amounts to "curtailment of liberty" and whenever liberty of a person is to be curtailed it is to be done strictly in accordance with the law so provided for.

The HC cited Supreme Court's ruling in Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791, in view of it and therefore held:

"In this case, it [liberty] is being curtailed by issuance of non-bailable warrant of arrest. Thus, the Court has to record his satisfaction that the conditions laid down in the law for issuing warrant of arrest has been fulfilled and the procedure has been complied with. This satisfaction of the Court should be reflected in the order itself, to be gathered from the record, then only warrant of arrest can be issued. The Court has to prima-facie be satisfied that the person accused of committing a nonbailable offence is also evading his arrest. There has to be material before the Court to reach at the aforesaid conclusion. Without recording such subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the materials placed before the Court, warrant of arrest cannot be issued. This satisfaction can be derived from the police paper/ case diary. Mere absence of the accused cannot give rise to a presumption that he is evading arrest, which in turn cannot be the sole ground to issue warrant of arrest."

Issuance of Proclamation for Person Absconding

In CrPC, Sec 82 prescribes the procedure for declaring a person as a 'proclaimed offender' and prescribes that 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.

The High Court thus held that Sec 82 is a penal clause, which makes the accused susceptible to punishment under Sec 174A of IPC. In this backdrop the Court has held that the procedure enacted under Sec 82 has to be followed strict complaince.

It held:

"When violation of any procedure of law attracts a penal provision (herein declaration as proclaimed offender), the procedure, which seeks to declare him an offender, has to be strictly followed and cannot be relaxed."

However in the case at hand, it was noted that no material suggested that the Court had reasons to believe that the Petitioners had absconded or were concealing themselves so that warrant cannot be executed. The Court discovered that neither the place nor the date of appearance of the accused was mentioned in the ordersheet, recording of which is mandatory in terms of Section 82(1) of the Code.

Reliance was placed on Auto Cars v. Trimurti Cargo Movers Pvt. Ltd. & Ors., (2018) 15 SCC 166, in which the Top Court had held that any non-compliance with the statutory requirements regarding mentioning of the specific "day, date, year and time" would amount to material infirmity rendering summons as well as their service bad in law.

The Court also clarified that if a person is declared as proclaimed offender / absconder in terms of Section 82 of the Code, he isn't entitled for relief of anticipatory bail.

Thus in terms of the Supreme Court's verdict in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, the court held,

"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, the said order cannot be passed in mechanical manner without recording satisfaction and reasons nor can the same 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."

Issuance of Order of Attachment

Sec 83 of CrPC provides that the Court, which is issuing proclamation under Sec 82 of the Code, "for the reasons to be recorded in writing", may order for attachment of moveable or immovable properties. A statement of reasons is however exempted in case both the processes, i.e., proclamation under Sec 82 of the Code and attachment order in terms of Section 83 of the Code are issued simultaneously.

The Court found that the orders in the present case were issued "subsequently" and not simultaneously. Thus, the High Court held that without recording a statement, as envisaged under Sec 82(3) of the Code, attachment order under Section 83 of the Code cannot be issued.

It further noted

"It is, thus, the mandate of the law that the reasons for issuing attachment order has to be recorded in the order itself. Non recording of the reasons will make the order invalid and unsustainable.

…The absence of the said statement will lead to a conclusion that there was nothing before the Court to suggest that the proclamation under Section 82 of the Code so issued, was properly served. Until and unless proclamation under Section 82 of the Code is properly served, attachment order under Section 83 of the Code cannot be issued."

The Court noted that the prescribed precedandants have been ignored in the Magistrate's ruling. It so stated:

"I find that none of the provisions, as envisaged in Sections 73, 82 and 83 of the Code has been complied with by the Court below. Non-compliance of the mandatory provisions of law renders the impugned orders, by which order issuing nonbailable warrant of arrest, proclamation under Section 82 of the Code and attachment order, in terms of Section 83 of the Code have been passed in this case, are bad and, thus, are quashed and set aside."

Observing the above, the Court then remitted the matter to the Court concerned to proceed afresh and pass new orders in accordance with law, and would comply with the provisions as provided in the relevant Sections of CrCP.

Quorum: Justice Ananda Sen

Advocates: Advocate Kumar Amit (for Petitioner); Advocate APP Sardhu Mahto (for State)

The judgement has been delivered on 27-04-2019.

Read Judgement Here:

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Tags : Jharkhand High Court Criminal Procedure Code Bail Order

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