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2012 DIGILAW 677 (PAT)

Mani Prasad Singh v. State of Bihar

2012-04-25

ADITYA KUMAR TRIVEDI

body2012
ORDER Petitioner, Mani Prasad Singh has prayed for quashing of an order dated 17.01.2012 whereby and whereunder warrant of arrest non bailable has been issued against him followed with an order dated 13.02.2012 by which order of proclamation has been issued in accordance with under Section 82 of the Cr.P.C. along with an order dated 24.02.2012 whereby attachment of property in accordance with Section 83 has been issued by the learned Chief Judicial Magistrate, Saharsa in connection with Sonbarsa P.S. Case No. 78/2010. 2. Mustafa Ali @ Hikmat gave his Fardbeyan on 13.09.2010 disclosing therein that he along with other labourers were engaged at SBI ((Steel Brick Industries), a brick kiln owned by petitioner, Mani Prasad Singh where they were residing in hutment along with their family members. The Manager of the aforesaid brick kiln namely, Pawan Kumar Yadav and Gullo Shah have shown amorous desire against their wives and were always engaged in molesting which was being protested at their end and on account thereof, times without number they were manhandled. On 09.09.2010, the aforesaid Managers unsuccessfully tried to ravish his wife Bibi Hamida which she saved herself by raising alarm. Then thereafter, they all tried to escape from there but was apprehended by them and then they were brutally assaulted by the aforesaid Managers along with owner as a result of which condition of his wife deteriorated. Seeing the critical condition of his wife, both the Managers lifted his wife. On the other hand, locked them up. After some time, they returned back with dead body of his wife. They (Managers) managed to escape from there on the pretext of calling for their master, the petitioner. 3. On the basis of the aforesaid Fardbeyan, Sonbarsa P.S. Case no. 78/2010 was registered under Sections 376, 511, 304/34 of the IPC followed with investigation and after completing the same, charge-sheet was submitted only against the aforesaid two Managers, Pawan Kumar Singh and Gullo Shah while petitioner was not sent up for trial. 3. On the basis of the aforesaid Fardbeyan, Sonbarsa P.S. Case no. 78/2010 was registered under Sections 376, 511, 304/34 of the IPC followed with investigation and after completing the same, charge-sheet was submitted only against the aforesaid two Managers, Pawan Kumar Singh and Gullo Shah while petitioner was not sent up for trial. Subsequently thereof, on the intervention of DIG, further investigation was taken up which was duly communicated to the learned Chief Judicial Magistrate (Annexure-3) and in accordance thereof, as the petitioner escaped from the clutches of bills, (vide Annexure-4) warrant of arrest has been prayed for followed with subsequent steps (so detailed through annexures) as provided under Sections 82, 83 of the Cr.P.C which gave a cause to the petitioner to challenge the propriety of the successive orders. 4. Contention on behalf of the petitioner is that there is no provision in the eye of law wherein the Chief Judicial Magistrate could issue warrant of arrest under Section 73 of the Cr.P.C followed with subsequent orders governed by Sections 82, 83 of the Cr.P.C. during course of investigation because of the fact that the aforesaid steps are available only for procurement of attendance of the accused before the Court which comes after issuance of process in accordance with Section 204 of the Cr.P.C. Further submitted that the presence of Magistrate is not for aiding the police during course of investigation because of the fact that Chapter-XII of the Cr.P.C. gives exclusive power to the police to investigate the case exclusively without having interference from the end of the Court. Moreover, It has further been submitted that so far cognizable offence is concerned, there happens to be no purpose for issuance of warrant of arrest as the police is itself competent to arrest a culprit without warrant as per definition prescribed under Section 2(c) of the Cr.P.C. Apart from this, It has further been submitted that the learned Magistrate while entertaining the prayer of the Investigating authority should not act as a post office, did not react in mechanical way rather as it happens to be curtailment of right of liberty of a citizen, should consider it judiciously and it is expected that the court should record its reason for obliging the Investigating authority on a prayer so made. 5. 5. Now, coming to the order impugned, it has been submitted that there happens to be utter violation of the mandatory provision at each and every occasion more particularly during course of declaring proclamation and issuance of attachment of property making the period of 30 days, sterile as is evident from the fact that the prayer under Section 82 was made on 13.02.2012 while attachment was issued on 24.02.2012. To support his plea, learned counsel for the petitioner referred following decisions:– 1. AIR 1997 SC 2494 , 2. 2003 (1) PLJR 350 , 3. 2005 (3) PLJR 746 , 4. 2010 (1) PLJR 350 , 5.2008 Cri.L.J. 3374, 3561, 6.1994 Cri.L.J. 1783, 7.1973 Cri.L.J. 137, 8. 2008 AIR SC 251. 6. On the other hand while refuting the submission raised on behalf of the petitioner, learned JC to AAG-2 submitted that the order impugned does not suffer from illegality and arbitrariness. Further submitted that application of Section 73, 82 and 83 of the Cr.P.C. is not confined to the post summoning stage rather it is also available during midst of investigation. The sole purpose is to procure attendance of the accused before the court. There is no question of aiding the Investigating authority. The Investigating authority is not at all competent to retain the accused within its clutches beyond 24 hours and the accused has to be produced before the court followed with judicial custody as per Section 167 of the Cr.P.C. So, even during investigation the presence of an accused before court is the normal and basic feature and that happens to be on account of special privilege attached with police case which is not expected to proceed as complaint case wherein investigation is permissible under Section 202 of the Cr.P.C. but with certain restrain that means to say the accused are not to be arrested and produced before the court. Therefore, the order impugned happens to be legal, just, proper and is fit to be confirmed. 7. The scope of Section 73, 82 and 83 of the Cr.P.C. has come up before three Judges’ Bench of the Hon’ble Apex Court in State Vs. Dawood Ibrahim Kaskar as reported in AIR 1997 SC 2494 wherein the aforesaid issues were thoroughly considered and discussed along with relevant laws, explanation, provisions, scope and then under paragraph-23 it has been concluded as thus:– “23. Dawood Ibrahim Kaskar as reported in AIR 1997 SC 2494 wherein the aforesaid issues were thoroughly considered and discussed along with relevant laws, explanation, provisions, scope and then under paragraph-23 it has been concluded as thus:– “23. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and, is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation. 8. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation. 8. In a decision reported in AIR 2011 SC 3393 , the matter has been thoroughly discussed after taking into account the relevant pronouncement made by the Hon’ble Apex Court and then it has been decided:– 9. “It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual’s rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it “on the one side is the social need that crime shall be re-pressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.” Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from high-handedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also See: State of U.P. Vs. Poosu & Anr.). 10. In Inder Mohan Goswami & Anr. Vs. 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 Curt 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 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. We deferentially concur with these directions, and emphasize that since these directions flow from the right to life and personal liberty, enshrined in Articles 21 and 22(1) of our Constitution, they need to be strictly complied with. However, we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioral patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice. 9. Therefore, exercise of power by the Magistrate on a prayer made by the Investigating authority during course of investigation/further investigation on the score of issuance of warrant of arrest, proclamation followed with issuance of attachment has been recognized consequent thereupon the action of the Magistrate could not be held to be beyond its jurisdictional purview. 10. As per Subsection-1 of Section 82, whenever a proclamation is being published on execution report furnished by the police under Section 73 of the Cr.P.C., a reasonable time of 30 days has to be given. The aforesaid gap of 30 days has been prescribed in favour of accused who could appear before the court after coming to know about the subsequent stage/steps taken by the police over non execution of warrant of arrest against accused on account of his being out of grip of the police. The aforesaid period is found to be relaxed in certain cases as per Subsection-1 of the Section 83 which prescribes two conditions which could justify simultaneous issuance of proclamation as well as attachment. For better appreciation, Subsection-1 of Section 82 as well as Subsection-1 of Section 83 are being incorporated herein below:– 82. The aforesaid period is found to be relaxed in certain cases as per Subsection-1 of the Section 83 which prescribes two conditions which could justify simultaneous issuance of proclamation as well as attachment. For better appreciation, Subsection-1 of Section 82 as well as Subsection-1 of Section 83 are being incorporated herein below:– 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. 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. 11. Thus, neither the step of police nor the order impugned could be said to be in utter violation of provisions of the law. Further, so far factual aspect is concerned, it is admitted fact that petitioner still happens to be successful in dousing the investigating authority. Consequent thereupon, the instant petition is found to be devoid of merit and is accordingly dismissed.