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2020 Supreme(Cal) 584
IN THE HIGH COURT OF CALCUTTA
Subhasis Dasgupta, J.
Tahiruddin Mondal & Ors. - Appellant
Versus
State Of West Bengal - Respondent
Criminal Revision No. 1343 of 2020; Interlocutory Application No. 1 of 2020
Decided On : 12-10-2020
Rajdeep Majumdar, Advocate, A. Rathore, Advocate, Saibal Bapuli, Advocate, Arijit Ganguly, Advocate, Sanjib Kumar Dan, Advocate
Adherence to the formalities and procedures prescribed in Sections 82 and 83 of the Code of Criminal Procedure is essential for the issuance of warrant of arrest and proclamation of attachment.
Headnote:
Warrant of Arrest and Proclamation of Attachment - Criminal Procedure Code - Section 302/326/307/34 of IPC, Section 27/35 of Arms Act
Fact of the Case:
The revisional application challenged the order of warrant of arrest and proclamation of attachment issued simultaneously by the lower court. The petitioners argued that the provisions of Section 82 and 83 of the Code of Criminal Procedure were not adhered to, while the state representative emphasized the need for compliance with specific provisions of the Code of Criminal Procedure.
Finding of the Court:
The court found that the lower court had not adhered to the provisions of law as laid down in Section 82 and 83 of the Code of Criminal Procedure while issuing the warrant of arrest and proclamation of attachment simultaneously. It referenced a previous decision to support the finding of gross illegality in passing such orders simultaneously.
Issues: The main issue was whether the lower court adhered to the provisions of law as laid down in Section 82 and 83 of the Code of Criminal Procedure while issuing the warrant of arrest and proclamation of attachment simultaneously.
Ratio Decidendi: The court emphasized the requirement of adherence to the formalities and procedures prescribed in Sections 82 and 83 of the Code of Criminal Procedure. It highlighted the necessity for the satisfaction of the magistrate regarding the accused evading or concealing arrest before issuing a proclamation of attachment.
Final Decision: The revisional application was allowed, and the impugned order was set aside. The court clarified that the order would not preclude the learned Magistrate from issuing any Tagid for execution of the warrant of arrest if issued against the revisionist/accused. The investigating officer was given liberty to make a new prayer in accordance with the law, and the lower court was directed to dispose of any new prayer adhering to the provisions strictly contained in Sections 82 and 83 of the Code of Criminal Procedure.
JUDGMENT
Subhasis Dasgupta, J. - This revisional application is directed against the impugned order dated 03.07.2020, passed by Learned Chief Judicial Magistrate, Murshidabad in connection with Jalangi P.S. Case No. 47/2020, dated 30.1.2020, giving rise to G.R. Case No. 336/2020 under Section 302/326/307/34 of the Indian Penal Code read with Sections 27/35 of the Arms Act issuing warrant of arrest and proclamation of attachment against the petitioners coincidentally and simultaneously.
2. Learned advocate for the petitioners submits that there has been complete infraction of the provision of law laid down in Section 82, 83 of the Code of Criminal Procedure for the issuance of proclamation of person absconding, and attachment of property therefore.
3. It is submitted by the petitioners that the demand of law cannot be bypassed in an ingenious way, and thus issuance of WP&A simultaneously and coincidentally is highly illegal.
4. Mr. Bapuli, learned advocate representing State submits that specific provisions have been laid down in the Code of Criminal Procedure, which should be complied with, unless there are compelling reasons to the contrary.
5. Upon perusal of the materials available in the case record, it appears that warrant of arrest was issued against petitioners on 09.06.2020, while WP&A was issued against them on 03.07.2020 i.e. not after expiration of the period stipulated in Section 82(1) Cr.P.C.
6. The only question to be addressed by this Court is whether the learned Court below duly adhered to the provisions of law, as laid down in Section 82, 83 of the Code of Criminal Procedure, while issuing WP&A coincidentally.
7. The solitary point raised requiring decision is purely of law, which may be decided upon due consideration of Section 82, 83 of the Code of Criminal Procedure.
8. Satisfaction of the Magistrate, that the accused is evading or concealing arrest, is a sine-qua-non to issue a warrant of arrest against any person in a case, where such person has committed a non-bailable offence, whereas the proclamation may be published against an accused in a case, where it is found that such accused person, against whom a warrant of arrest has already been issued, is deliberately absconding arrest or concealing himself, which is patent in nature causing resistance to the execution of warrant of arrest. Section 82(1) and (2) of Cr. P.C. lays down the requirement of law and the formalities to be observed while making order issuing the proclamation by the Magistrate.
9. Section 82(3) enunciates that the statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified date, in the manner specified, in clause (1) of subSection (2), shall be conclusive evidence and that the requirements of the Section have been complied with, and further that the proclamation was published on such day. So a recording of statement of satisfaction of the Magistrate to the effect that the person sought to be arrested is either evading, or concealing arrest is a prerequisite to the issuance of proclamation in terms of Section 82 Cr. P.C., and further a statement in writing by the Court issuing proclamation revealing adherence to the procedure prescribed in Sub-Section 2 of Section 82 is a must prior to passing order of attachment of the property of the person, said to be either absconding or concealing arrest.
10. After adhering to the procedure laid down in Section 82 of the Code of Criminal Procedure, a person evading arrest may be pronounced to be proclaimed offender.
11. As soon as the formalities connected with the proclamation is completed, the Magistrate issuing proclamation, for reasons to be recorded in writing may at any time after the issue of proclamation, order the attachment of any property, movable or immovable, or both belonging to the proclaimed person.
12. Therefore, the demand of the law, while making approach by the Court below to take recourse to Sections 82 and 8
