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2005 DIGILAW 1361 (RAJ)

Chokha alias Pukhraj v. State of Rajasthan

2005-05-09

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal miscellaneous petition under Section 482, CrPC, accused-petitioner has challenged the impugned order dated 27.07.2002 passed by the Additional Chief Judicial Magistrate, Barmer (for short, the "trial Court") in Criminal Case No. 28/2002, by which the trial Court issued standing warrant against the petitioner. 2. The facts of the case, relevant and necessary for the decision of this miscellaneous petition, are that on 21.04.2002, prosecutrix Smt. Dammi lodged an FIR with Police Station, Ramsar (district Barmer) alleging therein that on 18.04.2002 when she was at her Dhani, the accused-petitioner came and committed rape on her. On this information, the investigation ensued. During investigation, the petitioner could not be apprehended by police and, therefore, on completion of investigation, challan was filed against the petitioner under Section 299, CrPC for the offences under Sections 450, 354, 376, IPC and the trial Court took cognizance of the aforesaid offences. Since, the petitioner was declared absconder, despite issuance of arrest warrant, he could not be traced out and, therefore, the arrest warrant was not executed and ultimately the standing warrant has been issued by the trial Court vide impugned order dated 27.07.2002. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State assisted by the Counsel for the complainant. Perused the order impugned and the record of the case. .4. It has been contended by the learned Counsel for the petitioner that the petitioner is serving in Indian Army and regularly discharging his duties at his place of posting at Jodhpur and as such the trial Court has seriously erred in law in declaring him absconder and issuing standing warrant. It has further been contended that even while issuing the standing warrant, the mandatory provisions of Section 82, CrPC have not been complied with. 5. Section 8, CrPC reads as under:-"82. Proclamation for person absconding. 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. 6. 6. The proclamation shall be published as follows: .(a) it shall be publicly read in some conspicuous place of the town of 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; .(c) a copy thereof shall be affixed to some conspicuous part of the Court-house. 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. 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." 7. In the instant case, the incident took place on 18.04.2002 and the FIR was lodged on 21.04.2002. On 22.07.2002 the SHO, Police Station, Ramsar submitted a report before the trial Court to the effect that despite search made at various military areas, railway station, bus stand etc., the whereabouts of the accused could not be known. It was further mentioned in the report that petitioners batch number and the military company/battalion could not be ascertained and as such petitioner could not be arrested. On this report, warrant of arrest Exhibit P-1 was issued by the trial Court, which could not be executed. On this, the trial Court recorded the statement of process server police constable Babu Lal, FC No. 113. In his statement, Babu Lal, FC, has stated that he went to the address of the accused-petitioner given in the warrant of arrest and also the nearby villages but the accused-petitioner was not found there. On being asked, the brother of the petitioner told that the petitioner, after the incident, had absconded and he is serving in Army. On the reverse-side of the warrant of arrest, there are endorsement of the Ward Panch and the Patwari of the area to the effect that after the incident, the petitioner, who is serving in Army, has not come to the village and there is no immovable property in his own name. On the reverse-side of the warrant of arrest, there are endorsement of the Ward Panch and the Patwari of the area to the effect that after the incident, the petitioner, who is serving in Army, has not come to the village and there is no immovable property in his own name. The trial Court, on recording the statement of Babu Lal, FC, declared the petitioner as an absconder and issued standing warrant. .8. In Devendra Singh Negi alias Debu vs. State of U.P. & Anr., 1994 CrLJ 1783 , the Allahabad High Court has observed that person not immediately available cannot be characterised as absconder and the Court must record satisfaction that the accused was absconding or concealing to avoid execution of warrant. The Court held as under:- ."The words has absconded or is concealing himself so that such warrant cannot be executed in Section 82 of the Code are significant. Every person whom is not immediately available cannot be characterised as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions of Section 82 are mandatory and are to be construed strictly. Section 82 requires that the Court must, in the first instance, issue a warrant and it must put down its reasons for believing that the accused is absconding or concealing himself ." 9. The Court further observed that in every case where the warrant is not executed, resort cannot be had to Section 82 and it may be necessary to examine the officer concerned who had gone to execute the warrant and to the measures adopted by him to get the same served. 10. The Court further observed that in every case where the warrant is not executed, resort cannot be had to Section 82 and it may be necessary to examine the officer concerned who had gone to execute the warrant and to the measures adopted by him to get the same served. 10. In Siddangouda vs. State of Mysore, 1972 CrLJ 289 , the Mysore High Court observed that where a proclamation issued under Section 87(1) of the Criminal Procedure Code, 1898 (for short, the Old Code) corresponding to Section 82 of the Criminal Procedure Code, 1973 (for short, "the new Code") requires an absconding person to appear before a Magistrate within less than thirty days from the date of proclamation, the proclamation is in violation of Section 87(1) of the Old Code and if the proclamation itself is illegal, the subsequent order for attachment of property issued under Section 88 of the old Code (corresponding to Section 83 of the New Code) on ground that the absconding person has failed to appear within specified time also becomes illegal. 11. In Dip Narain Singh & Ors. vs. The State of Bihar, 1981 CrLJ 1672 , the Patna High Court observed that proclamation under Sections 82 or 83 of the new Code can only be issued if the Court has reason to believe that the person against whom a warrant has been issued is absconding or is concealing himself to avoid execution of the warrant. 12. In Pawan Kumar Gupta vs. The State of West Bengal, 1973 CrLJ 1368 , the Calcutta High Court observed that simultaneous issue of a warrant of arrest and a proclamation under Section 87(1) of the old Code is illegal and improper vitiating the consequential order of attachment and the ancillary orders passed. While placing reliance on a decision of the Privy Council in Quebec Railway Light, Head & Power Co. Ltd. vs. Vandry, AIR 1920 PC 181, the Calcutta High Court further observed that the factum of a valid publication of the proclamation would depend on the conformance to each of the three clauses of Section 87(2) of the old Code. A non-conformance of any one of them would not be a mere irregularity but would vitiate ultimately the order. The principles of interpretation of Statute rule out any redundancy in the three clauses. A non-conformance of any one of them would not be a mere irregularity but would vitiate ultimately the order. The principles of interpretation of Statute rule out any redundancy in the three clauses. The Court further observed that Section 87(3) of the old Code does not rule out the requirements of the Evidence Act and does not in any event override the provisions of Sections 62, 64 and 65 thereof . The presumption in Section 87(3) of the old Code only arises when the requirements of the section have been complied with. Thus, a statement in the order that the writs of proclamation and attachment have been duly executed cannot give rise to the presumption. 13. The salutory provisions of proclamation under Section 82 of the new Code have been enacted to protect an unaware person and to give notice to him that he is wanted in the crime to enable him to surrender to custody. Section 82(2) of the new Code lays down conditions and the manner in which the proclamation has to be published, which includes, inter alia, affixation of proclamation at some conspicuous place of the house and homestead of accused, publicly reading the same at some conspicuous place of the town or village, as also at the notice-board of the Court-house. 14. In the instant case, the incident took place on 18.04.2002. On 22.07.2002, the SHO concerned submitted a report that despite search and inquiry at Army areas Ratanada, Banad, Shikarpura, Basni, Masuriya, Railway Station and the bus stand etc., the whereabouts of the petitioner could not be known. It was further stated in the report that the accused-petitioner is serving in Army but his badge number and the Company/Battalion number could not be ascertained. On the very day, the trial Court passed an order for issuing warrant of arrest against the petitioner and the case was posted to 27.07.2002. In the Warrant of Arrest Exhibit P-1, the permanent address of the accused-petitioner (village Chadi) has been given. The said Warrant of Arrest was handed-over to Babu Lal, FC, for its execution, who, in his statement recorded by the trial Court on 27.07.2002, has stated that on being searched in the village and the adjoining villages, the petitioner was not found there and on being asked, he was informed that the petitioner is serving in Army and had not returned to the village after the incident. On 27.07.2002, the trial Court declared the petitioner absconder and issued standing warrant of arrest against him. Vide letter dated 30.07.2002, the trial Court, directed the SHO, Police Station, Ramsar for entering the name of the accused-petitioner in the Register of Absconded Persons. 15. While passing the impugned order, it was well within the knowledge of the trial Court that the petitioner is serving in Army. It seems that no sincere efforts were made by the investigating agency for getting the warrant of arrest executed through the Army Authorities. The SHO made a report that efforts were made for searching the petitioner at various Army areas in Jodhpur and nearby places as also the other places like railway station, but stand etc. at Jodhpur, which suggests that the investigating agency might be knowing about petitioners posting in Army at Jodhpur but no efforts were made for getting the warrant of arrest executed through Army Authorities. The petitioners has come with the specific case that he is serving in Army and his place of posting is at Jodhpur and he is regularly attending his duties. Therefore, it cannot be said that the petitioner absconded or concealed himself so that the warrant could not be executed. The legal position culled out from the aforesaid discussion is that the provisions of Section 82 of the new Code can be restored to only if any person against whom a warrant has been issued by the Court has absconded or is concealing himself so that such warrant cannot be executed. 16. There is another aspect of the matter. The provisions of Section 82 of the new Code are mandatory in nature. Vide impugned order dated 27.07.2002, the trial Court passed order for issuing standing warrant and directed the SHO concerned for making entry regarding absconding of the petitioner. However, the mandatory requirements of Section 82 of the new Code have not been complied with. There is nothing on the record of the trial Court to show that there was a written proclamation requiring the accused-petitioner to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. However, the mandatory requirements of Section 82 of the new Code have not been complied with. There is nothing on the record of the trial Court to show that there was a written proclamation requiring the accused-petitioner to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. Likewise, there is no mention in the record that the proclamation was published at the conspicuous place of the town or village of the accused-petitioner or some conspicuous part of his house or homestead or a copy of the same was affixed at the conspicuous part of the Court-house. There was no publication of the proclamation in a newspaper having circulation in the area where accused-petitioner resides. Again, there is no statement in writing by the Court that the proclamation was duly published. Thus, there is complete non-compliance of the mandatory provisions of Section 82 of the new Code and as such the impugned order cannot be sustained in the eye of law. 17. In the instant case, petitioner has deliberately not disclosed his Army-service-number, name of the Unit, its present location and correct address and, therefore, for the purpose of issuance of proclamation, petitioners address as mentioned in the petition, i.e. village Chadi, P.S. Ramsar, district Barmer, is considered to be the address where petitioner ordinarily resides. 18. Consequently, the miscellaneous petition is allowed. The impugned order dated 27.07.2002 passed by the trial Court is set-aside. The matter is remanded to the trial Court for proceeding in the matter afresh by issuing proclamation in accordance with the law. The stay petition stands disposed of accordingly. The record of the trial Court be returned forthwith.