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2020 DIGILAW 141 (UTT)

RAM SINGH v. STATE OF UTTARAKHAND

2020-02-26

RAVINDRA MAITHANI

body2020
JUDGMENT Hon'ble Ravindra Maithani, J.(Oral) The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code') has been filed for quashing the orders dated 01.08.2018, 21.12.2019 and 23.01.2020, passed in Criminal Case No. 1553 of 2015, State vs. Ram Singh, pending in the Court of Additional Chief Judicial Magistrate/Civil Judge (SD), Kashipur, District Udham, Singh Nagar (for short ‘the case'). By the impugned orders, Non Bailable Warrant, process under Section 82 & 83 of the Code and recovery warrants against the sureties have been ordered to be issued. 2. It appears that in the case, cognizance was taken on 06.05.2015 under Section 420 IPC and the petitioner was summoned. On 31st August, 2017, charges were framed against him and the case was fixed for prosecution evidence on 16st August, 2018, when the petitioner did not appear. The petitioner is not appearing in the case since thereafter. On 01.08.2018, the court issued Non Bailable Warrant against the petitioner. This order is also under challenge. If on the dates fixed, the accused does not appear what option the court has except to issue processes against the accused. On 01.08.2018 when the petitioner did not appear court issued Non Bailable Warrant to secure his presence. There is nothing illegal in it. This order is lawful. 3. Subsequent to it, again Non Bailable Warrants were continued to be issued against the petitioner and on 21.12.2019, the court also ordered for issuing proclamation under Section 82 of the Code and on 23.01.2020, the court ordered issuance of recovery warrant against the sureties as well as issuance of the process under Section 83 of the Code. 4. In so far as orders issuing the Non Bailable Warrant against the petitioner are concerned, that order is lawful. It does not require any intervention. The petitioner was aware of the date fixed in the case when he absented himself. Issuance of Non Bailable Warrant against him is legal when repeatedly he did not appear on the dates fixed. 5. The proclamation under Section 82 of the Code was issued against him on 21st December, 2019. Proclamation under Section 82 of the Code cannot be issued in routine and mechanical manner. Issuance of Non Bailable Warrant against him is legal when repeatedly he did not appear on the dates fixed. 5. The proclamation under Section 82 of the Code was issued against him on 21st December, 2019. Proclamation under Section 82 of the Code cannot be issued in routine and mechanical manner. The wordings of Section 82 of the code makes it abundantly clear that 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 concealed himself only in such circumstance the proclamation has to be issued. On 21st December, 2019, the court did not record any reason for issuance of proclamation under Section 82 of the Code. Not only this, on the next date fixed i.e. 23.01.2020, the court took a step ahead and ordered attachment of the property of the petitioner under Section 83 of the Code. Section 83 of the Code requires the Court to record its reason in writing before attachment of any property. Order dated 23.01.2020 of the court further reveals that no such reason has been recorded by the court, therefore, undoubtedly, the process under Section 82 and 83 of the Code in the case have not been issued in accordance with law. 6. Therefore, both the processes need to be quashed and to that extent the petition deserves to be allowed. 7. One more aspect also requires to be considered. On 23.01.2020, the court ordered that recovery warrant be issued against the sureties, but, before that notices have not been sent to the sureties to show cause as to why the amount of bonds may not be realized from them as penalty. Without it the recovery warrant cannot be issued under law. Therefore, the recovery warrant issued against the sureties also deserves to be quashed. 8. The petition is partly allowed. 9. The process under Section 82 and 83 of the Code issued against the petitioner are quashed. Recovery warrant issued against the sureties are also quashed. If processes under Section 82 and 83 of the Code are required to be issued, the learned court below shall follow the procedure as given in the code. 10. The order issuing the Non Bailable Warrant against the petitioner is upheld. It is the petitioner who has to appear before the court.