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2006 DIGILAW 452 (AP)

Nirujogi Appala Naidu v. Nirujogi Roja

2006-03-31

G.YETHIRAJULU

body2006
( 1 ) THIS Criminal Revision Case is filed against the orderof the Judicial First Class Magistrate, kothavalsa, Vizlanagaram District, dated 29-12-2005, in Crl. M. P. No. 1260 of 2005 in c. C. No. 52 of 2005. ( 2 ) SUMMONS were issued to all the accused in C. C. No. 52 of 2005, and except a-4, all others were served and present. The summons of A-4 returned un-served by the advocate Commissioner stating that A-4 is not available in the address. A-4 is the daughter of A-5 and A-6 and it is represented that she has purposefully evaded to receive the summons. It is obvious that A-4 is purposefully evading to receive the summons, therefore, the learned Magistrate felt that it is a fit case to proceed against A-4 under section 82 of the Code of Criminal Procedure (for short cr. P. C. ). The complainant filed crl. M. P. No. 1260 of 2005 to take further steps against A-4 under Section 82 Cr. P. C. and it is allowed. Ultimately, the trial Court directed issue of proclamation against A-4 under section 82 Cr. P. C. to appear before the court on or before 31 -1 -2006 and publish the said proclamation in Eenadu Daily, vizianagaram local edition, on payment of process fee. ( 3 ) BEING aggrieved by the said order under Section 82 Cr. P. C. , the petitioners approached this Court contending that unless the warrant is issued, the proclamation under section 82 Cr. P. C. cannot be issued, therefore, the order of the trial Court is illegal and it is liable to be set aside. ( 4 ) SECTION 82 Cr. P. C. reads as follows:"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 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; (c) a copy thereof shall be affixed to some conspicuous part 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. " ( 5 ) FROM the above section, it is clear that any person against whom a warrant has been issued by the Court has absconded or concealing himself so that the warrant cannot be executed, such Court may publish a written proclamation requiring his appearance at a specified place and at a specified time, not less than 30 days from the date of publishing the proclamation. ( 6 ) THE learned counsel for the petitioners submitted that instead of issuing warrant against A-4, the Court issued summons, therefore, the procedure prescribed under section 82 Cr. P. C. is not valid by way of issuing proclamation only after issuing the warrant and hence, the impugned order has to be set aside. ( 7 ) AFTER going through the impugned order, i find sufficient force in the contention of the learned counsel for the petitioners. The Court issued only summons, but when the summons were served, the Court did not issue any warrant to arrest A-4 through concerned police. If the warrant is returned, then only the proclamation has to be issued. ( 8 ) IN view of the above circumstances, the criminal Revision Case is allowed and the order of the learned Magistrate dated 29-12-2005 is set aside. The learned magistrate is directed to follow the procedure under Section 82 Cr. P. C. and issue proclamation only after return of the warrant for arrest of A-4.