IMPORTANT POINT
Proclamation and attachment – Essential ingredients for exercise of power is subjective satisfaction of court that warrantee is hiding himself to evade process of law – Mere absence from home cannot be treated as abscondence, because a person may be absent from home for any number of reasons.

ORDER

Sashikanta Mishra, J.—In the present application filed under Section 482 Cr.P.C., the petitioner questions the correctness of the orders dated 10.09.2020 and 21.12.2020 passed by the learned J.M.F.C., Nimapara in G.R. Case No. 458 of 2020, whereby, NBW along with proclamation and attachment under Sections 82 and 83 was issued against him.

2. Briefly stated, the facts of the case are that the petitioner along with eight other persons is facing trial in the aforementioned case for the alleged commission of offence under Sections 147/148/332/294/304/395/ 506/149/120-B IPC read with Sections 25 and 27 of Arms Act. The aforesaid case has been instituted on the basis of an FIR lodged before the Kakatpur Police Station on 25.07.2020. On 10.09.2020, the record was put up before the learned J.M.F.C., Nimapara for consideration of prayer made by the I.O. to issue NBW proclamation and attachment against the present petitioner and another accused by submitting that despite several efforts, the accused persons could not be apprehended as they had absconded from their village to avoid arrest. Learned J.M.F.C. after noting the steps purportedly taken by the I.O. to apprehend the accused persons, allowed the prayer and directed issue of NBW proclamation and attachment against the petitioner and the other accused persons. Subsequently, the I.O. submitted preliminary charge sheet on 19.12.2020 and on such basis, the case record was put up before the learned J.M.F.C. on 21.12.2020 describing the petitioner and other accused persons as absconders with prayer to keep the investigation open. Learned J.M.F.C. observed that the petitioner and his co-accused have been shown as absconder by the I.O. in charge sheet and that NBW was issued by the said court on 10.09.2020 and accordingly directed the CSI to open a split up file. Being aggrieved by the aforementioned orders, the petitioner has approached this court.

3. Heard Mr. D. Panda, learned counsel for the petitioner and Mr. M.K. Mohanty, learned Addl. Standing Counsel through virtual mode.

4. It is submitted by Mr. Panda that the learned Magistrate could not have issued order for proclamation and arrest straightaway without first directing issuance of NBW against the accused persons. Referring to the provisions under Section 82 & 83 of Cr.P.C. it is contended that the power under Section 82 Cr.P.C. can be exercised only if a warrant has already been issued and the Magistrate has reasons to believe that the accused is absconding for the purpose of avoiding arrest. It is further submitted that the petitioner may have been simply absent at his home when he was being searched for by the I.O. but the same cannot be given the colour of abscondance. The learned J.M.F.C., has however, accepted the version of the I.O. in his entirety without applying his judicial mind.

5. Mr. M.K. Mohanty, learned Addl. Standing Counsel has, on the other hand contended that the petitioner has so far avoided arrest by staying away from his home, which amounts to abscondance and therefore, there was nothing wrong on the part of the learned J.M.F.C. to take coercive steps for his apprehension. It is however, fairly submitted that the power under Section 82 of Cr.P.C. can be exercised only after NBW has been issued but not simultaneously.

6. To appreciate the rival contentions, it is felt proper to refer to the relevant provisions which are quoted 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.

(2) The proclamation shall be published as follows:—

(i) (a) it shall be publicly read in some conspicuous plac