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2021 DIGILAW 106 (CHH)

Ram Kumar Nayak S/o Shankar Lal Nayak v. Gajanan Agrawal S/o Gigraj Agrawal

2021-03-17

SANJAY K.AGRAWAL

body2021
ORDER : 1. Since common question of fact and law is involved in both of these petitions, therefore, they are heard together and are being disposed of by this common order. 2. In both of these petitions, the petitioner/accused and respondent/complainant are one and the same. The respondent/complainant preferred an application under Section 138 of the Negotiable Instruments Act, 1881 before learned Judicial Magistrate First Class, Basna, District Mahasamund in which the petitioner/accused appeared and ultimately on 23.07.2018, final argument was heard and the matter was reserved for pronouncement of order on 30.07.2018 but unfortunately, on that day, the petitioner/accused became unwell and filed an application under Section 317 of Cr.P.C. for exemption from personal appearance which was granted and the matter was then fixed for the next day i.e. 31.07.2018, but on account of petitioner/accused suffering from paralysis, he again could not appear before the Court on 31.07.2018 and the matter was finally fixed for 06.08.2018. On 06.08.2018, when the petitioner/accused still did not appear before that Court, learned trial Magistrate rejected petitioner's application for exemption from personal appearance and after declaring him as an absentee, straightway issued warrant of arrest against him and thereafter, on 20.08.2018, the warrant of arrest returned un-served. Ultimately, on 07.02.2019, learned trial Magistrate straightway declared the petitioner/accused to be absconded and issued a standing warrant of arrest against him which has been sought to be challenged by the petitioner/accused in both of these petitions. 3. Mr. Vaibhav A. Goverdhan, learned counsel for the petitioner/accused, would submit that the procedure laid down in sub-sections (1) and (2) of Section 82 of Cr.P.C. has not been followed by learned trial Magistrate and straightway permanent warrant of arrest has been issued against the petitioner/accused which is illegal and bad in law as the provisions contained under Section 82(1) and (2) have to be followed mandatorily before declaring any person as a proclaimed absconder, therefore, the standing warrant of arrest issued against the petitioner/accused deserves to be set aside and the trial Court be directed to hear the matter afresh and pronounce the judgment as final arguments have already been heard on 23/07/2018 i.e. more than two years back and since the final argument has already been heard and merely because of the absence of the petitioner/accused, judgment could not be pronounced, petitioner/accused is ready and willing to appear before that Court. 4. 4. I have heard learned counsel for the petitioner/accused, considered his submissions and perused the records. 5. Sub-Sections (1) and (2) of Section 82 of Cr.P.C. provide as under: “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. (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.” 6. A careful perusal of the aforesaid provision would show that sub-section (1) of Section 82 of Cr.P.C. provides that the Court must have reasons to believe that the person, against whom warrant of arrest has been issued, has absconded so that warrant could not be executed and only after the Court is satisfied that the person is absconding, 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. Sub-Section (2) of Section 82 of Cr.P.C. provides the manner of publication of proclamation. 7. The expression “reason to believe” occurring in Section 82 of Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or concealed himself on the materials before him in order to avoid execution of warrant of arrest. [See: K.T.M.S. Abdul Cader vs. Union of India, 1977 Cr. L.J. 1708 and Rohit Kumar vs. State NCT of Delhi, 2008 Cr. L.J. 3561]. [See: K.T.M.S. Abdul Cader vs. Union of India, 1977 Cr. L.J. 1708 and Rohit Kumar vs. State NCT of Delhi, 2008 Cr. L.J. 3561]. Mere issuance of notice to the accused person does not amount to declaration as proclaimed offender, the Court must record reason that the accused person is absconding, as the provisions of Section 82(2) of Cr.P.C. are mandatory [See: Devendra Singh Negi vs. State of U.P. 1994 Cr. L.J. 1783]. Similarly, the proclamation must give clear 30 days for the appearance of the accused, the provision as to 30 days being mandatory, where the period given is less than 30 days, proclamation being invalid would be quashed Rohit Kumar (supra). The three clauses (a), (b) and (c) of sub-section (2)(i) of Section 82 of Cr.P.C. are conjunctive and not disjunctive. The factum of valid proclamation depends on the satisfaction of each of these clauses [See: P.K. Gupta vs. State of West Bengal, 1973 Cr. L.J. 1368]. If a person is declared as an absconder, his right to get anticipatory bail is curtailed, therefore, the action under Section 82 of Cr.P.C. has to be taken with great caution by the concerned Magistrate. 8. L.J. 1368]. If a person is declared as an absconder, his right to get anticipatory bail is curtailed, therefore, the action under Section 82 of Cr.P.C. has to be taken with great caution by the concerned Magistrate. 8. At this stage, it would be appropriate to notice the orders dated 06.08.2018, 06.02.2019 and 07.02.2019 passed by learned trial Magistrate, which state as under: ^^06-08-2018 ifjoknh lfgr Jh lywtk vf/koDrk mifLFkrA vkjksih }kjk Jh dsŒdsŒ ckfjd vf/koDrk mifLFkrA Ádj.k vkt fu.kZ; gsrq fu;r gSA blh Lrj ij Jh ckfjd vf/koDrk us ,d vkosnu ?kkjk 317 naŒÁŒlaŒ dk e; fpfdRlk Áek.ki= lfgr is'k dj fuosnu fd;k fd vkjksih dks LokLF; [kjkc gS og mifLFkr gksus esa vleFkZu gS vkt dh frfFk ds Bhd iwoZ dh frfFk esa Hkh cpko i{k }kjk /kkjk 317 naŒÁŒlaŒ xSjgkftjh ekQ+h vkosnu esfMdy ds lkFk ÁLrqr fd;k x;k gSA cpko i{k dks funsZf'kr fd;k x;k Fkk fd vkjksih dks vfuok;Z :i ls mifLFkr j[ks vU;Fkk xSjgkftjh ekQ+h vkosnu Lohdkj ugha fd;k tk;sxkA mlds i'pkr Hkh ;g xSjgkftjh ekQ+h vkosnu ÁLrqr fd;k x;k gSA Ádj.k fu.kZ; Lrj ij gS vr% crk, x, dkj.k lnHkkfod ugha gksus ls /kkjk 317 naŒÁŒlaŒ dk xSjgkftjh ekQ+h vkosnu fujLr fd;k tkrk gSA vfHk;qDr ds fo:} vfHk;qDr dh vuqifLFkfr esa fu.kZ; ifjr ugha fd;s tk ldsA vfHk;qDr ds fo:} mifLFkfr lqfuf'pr djus gsrq fxjrkjh okjaV tkjh fd;s tkosA vkjksih ds tekur eqpyds fujLrs fd;s tkrs gSA Ádj.k vfHk;qDr dh mifLFkfr gsrq fu;r fd;k tkrk gSA Ádj.k vfHk;qDr dh mifLFkfr gsrq fnukad 20-08-2018A lgh@& ';ke dqekj lkgw U;kf;d eftLVªsV ÁFke Js.kh cluk] egkleqan ¼NŒxŒ½ 06-02-2019 ifjoknh }kjk Jh lywtk vf/koDrk mifLFkrA vfHk;qDr vuqifLFkrA Ádj.k vfHk;qDr dh mifLFkfr gsrq fu;r gSA tkjh fxjrkjh okjaV rkehyA vne rkehy vÁkIrA iqu% vfHk;qDr ds fo:} fxjrkjh okjaV tkjh fd;k tkosA Ádj.k okLrs vfHk;qDr dh mifLFkfr gsrq 07-03-2019A lgh@& ';ke dqekj lkgw U;kf;d eftLVªsV ÁFke Js.kh cluk] egkleqan ¼NŒxŒ½ i'pkr blh Lrj ij vkjksih MkŒ jkedqekj uk;d dks tkjh fxjrkjh okjaV pkSdh Hkaojiqj Fkkuk cluk ds vkj{kd ds }kjk vne rkehy okil Ásf"kr] ftlds vuqlkj fxjrkjh okjaV rkfeyhdrkZ ds }kjk xzke ljd.Mk esa tkdj vkjksih ds ckjs esa iwNrkN fd;k tks irk pyk dh vkjksih ,d o"kZ ds dgk jgrk gS] dgk x;k fd dksbZ tkudkjh ugha gSA vr% mDr% fjiksVZ ds vuqlkj fxjrkjh okjaV dh rkfeyhdrkZ vf/kdkjh deZpkjh dks Qjkjh lk{; gsrq leal tkjh gksA iwoZ esa nh x;h frfFk fujLr dh tkrh gS vc Ádj.k okLrs Qjkjh lk{; gsrq 07-02-2019 lgh@& ';ke dqekj lkgw U;kf;d eftLVªsV ÁFke Js.kh cluk] egkleqan ¼NŒxŒ½ 07-02-2019 ifjoknh lfgr Jh chŒ,lŒ lywtk vf/koDrk vkjksih vuqifLFkrA Ádj.k vkt vkjksih ds Qjkjh lk{; gsrq fu;r gSA vkjksih dks tkjh fxjrkjh okjaV rkfeyhdrkZ Á/kku vkj{kd cStukFk flag Øekad 88 mifLFkr] mudk Qjkjh lk{; vafdr fd;k x;k gSA ;g Ádj.k fnukad 15-06-2015 dks vfHk;qDr ds fo:} ÁLrqr fd;k x;k FkkA vkjksih fnukad 30-07-2018 ls vuqifLFkr gS] vkjksih dh vuqifLFkfr ds dkj.k fnukad 06-08-2018 dks fu.kZ; Lrj ij vkjksih ds fo:} fxjrkjh okjaV tkjh fd;s tkus dk vkns'k fn;k x;k gSA ifjoknh vf/koDrk Jh lywtk ds }kjk Hkh ;g O;Dr fd;k x;k gS fd vfHk;qDr dks tkjh fxjrkjh okjaV dh rkfeyh ugha gks ik jgh gSA mijksDr ifjfLFkfr;ksa esa vfHk;qDr ds fo:} /kkjk 299 naŒÁŒlaŒ dh dk;Zokgh dj mls Qjkj ?kksf"kr fd;k tk ldrk gSA ifjoknh vf/koDrk Jh lywtk us ;g Hkh O;Dr fd;k gS fd Ádj.k fu.kZ; Lrj ij jgk gS] vfHk;qDr dh mifLFkfr mijkar gh vfxze dk;Zokgh fd;k tkuk mfpr gksrk gSA vr% Ádj.k esa vfHk;qDr dh mifLFkfr rd dk;Zokgh jksdh tkosA Ádj.k esa fxjrkjh okjaV dh rkfeyh djrk Á/kku vkj{kd cStukFk flag Qjkjh lk{; gsrq mifLFkr gSA mldk dFku ys[kc} fd;k x;k gS] mlds dFku vuqlkj og vkjksih ds xkao tkdj vkjksih ds lEcU/k esa iwNrkN fd;k rks vkjksih ds lEcU/k esa og dgk x;k gS] bldh tkudkjh ugha gksuk crk;s gS] Á/kku vkj{kd cStukFk flag ds dFku vuqlkj vkjksih dk fudV Hkfo"; esa feyus dh dksbZ lEHkkouk ugha gSA Ádj.k vkjksih dh vuqifLFkfr ds dkj.k vuko';d :i ls yafcr gSA vkjksih MkŒ jkedqekj uk;d dk fudV Hkfo"; esa feyus dh laHkkouk Árhr ugha gksrh gSA vr% vkjksih MkŒ jkedqekj uk;d dks Qjkj ?kksf"kr fd;k tkrk gSA Ádj.k esa vkjksih MkŒ jkedqekj ds fo:} LFkk;h fxjrkjh okjaV tkjh gksA Ádj.k O;ofLFkr dj lqjf{kr j[ks tkus gsrq vfHkys[kkxkj Ásf"kr fd;k tkos ,oa Ádj.k ds eq[; i`"B ij yky L;kgh ls ;g vafdr fd;k tkos fd ^^vfHk;qDr Qjkj gS] vr% Ádj.k lqjf{kr j[kk tkosA** Ádj.k vfHkys[kkxkj Ásf"kr gksA lgh@& ';ke dqekj lkgw U;kf;d eftLVªsV ÁFke Js.kh cluk] egkleqan ¼NŒxŒ½A** 9. A careful perusal of the aforesaid orders would show that on 06.08.2018, learned trial Magistrate issued warrant of arrest against the petitioner/accused and when it returned un-served, on 06.02.2019, he directed for issuance of fresh warrant of arrest against the petitioner/accused and fixed the matter for 07.03.2019 and signed it but thereafter, he again recalled that order and placed the matter for consideration on 07.02.2019. Then, on 07.02.2019, learned trial Magistrate declared the petitioner/accused as an absconder giving complete goby to the provisions contained under sub-sections (1) and (2) of Section 82 of CrPC. It is quite apparent from the aforesaid orders that the Court has not recorded satisfaction that petitioner/accused is absconding or is concealing himself in order to avoid service of warrant of arrest issued against him and moreover, the proclamation has also not been published asking him to appear within 30 days at specified time and place in the manner prescribed under Section 82(2) of Cr.P.C. and straightway, petitioner/accused has been declared as absconder and permanent warrant of arrest has been issued against him. The procedure adopted by learned trial Magistrate is contrary to sub-sections (1) and (2) of Section 82 of Cr.P.C. and without following the procedure which is mandatory in character, the petitioner/accused has been declared as absconder and permanent warrant of arrest has been issued against him, which is absolutely illegal and bad in law, as such, the impugned orders are hereby set aside in both the petitions. Petitioner/accused is accordingly directed to appear before the trial Magistrate on 05.04.2021. The evidence has already been closed and the matter has been heard, but since it has been stated at the Bar that the Judicial Magistrate First Class, Basna, Mahasamund who heard the matter has now been transferred, the trial Magistrate currently posted at Basna, Mahasamund is directed to decide the matter within 30 days from the date of receipt of copy of this order. 10. With the aforesaid observations/directions, both the petitions are disposed of. No costs. 11. A copy of this order be sent to the Judicial Magistrate First Class, Basna Mahasamund as well as to Shri Shyam Kumar Sahu, the then J.M.F.C. at the place of his posting for information.