The issuance of a proclamation under Section 82 Cr.P.C. requires a documented reason to believe the accused is absconding, supported by material evidence, or it is legally unsustainable.

JUDGMENT :

DINESH KUMAR SHARMA, J.

1. Present petition has been filed challenging the order dated 1^st September, 218 and 4^th September, 2018 in Sadar Police Station Case no. 213 of 2017 dated 13^th October, 2017 under Sections 3 5 3 / 120B / 307 / 302 of the IPC read with Sections 25 / 25(1)(A) / 27 / 35 of the ARMS ACT and 3/4 of Explosive Substance Act. Vide the impugned order learned Chief Judicial Magistrate, Darjeeling, issued the proclamation under Section 82 Cr.P.C. against the petitioners.

2. Learned Senior Counsel for the petitioners submits that the impugned orders are liable to be set aside as the same are clearly in violation of Section 82 of the CRIMINAL PROCEDURE CODE , 1973. Learned Senior Counsel further submits that there is nothing on record to suggest that the learned Chief Judicial Magistrate had applied his mind before issuing the warrant of proclamation under Section 82 of the Cr.P.C.

3. Learned counsel for the State has vehemently opposed the petition. Learned counsel submits that the present case is of 2017 and the impugned orders were passed on 1^st September, 2018 and 4^th September, 2018. Learned counsel for the State further submits that the Investigating Officer had conducted several raids to arrest the accused persons but they were absconding. Learned counsel further states that present order was passed after around 1 ‰ years of the registration of the FIR, therefore, the Learned CJM must have considered that the petitioners are intentionally absconding.

4. Learned Chief Judicial Magistrate upon request of the Investigating Officer issued the proclamation under Section 82 Cr.P.C. Learned Counsel submits that the facts and circumstances itself shows that there were enough reasons to believe that the petitioners were absconding for avoiding their arrest. Learned counsel submits that merely on the technicalities the impugned orders may not be set aside.

5. Section 82 of the Cr.P.C. provides 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 conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house………..”

6. Bare perusal of Section 82 Cr.P.C. makes it clear that before issuing the proclamation under Section 82 Cr.P.C., the Court must have reason to belief that the person against whom said proclamation is being issued has absconded or concealing himself on account of which warrant could not be executed. The law provides that only after such reason to believe the Court may publish a written proclamation requiring the person to appear at a specified place and specified time not less than thirty days from the date of publishing such proclamation. The process of issuing the proclamation has been provided under Section 82 (2) of the Cr.P.C.

7. Thus, before issuing the proclamation under Section 82 Cr.P.C. the Court must follow the following procedure.

(i) That there is material on record that the person against whom t