The issuance of non-bailable warrants and proclamations must comply with legal standards, including recorded satisfaction of evasion and specification of time and place for appearance.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to quash the orders dated 27.07.2018, 28.08.2018 and 01.10.2018 passed by the learned S.D.J.M., Hazaribagh; all orders passed in connection with Barkagaon P.S. Case No. 60 of 2013, corresponding to G.R. Case No. 1461 of 2013 whereby and where under respectively, non-bailable warrant of arrest, proclamation under Section 82 Cr.P.C. and the attachment order of property under Section 83 Cr.P.C. has been issued.

3. The brief fact of the case is that the petitioner is accused of the said case and was admitted to bail in that case, before submission of charge sheet. Subsequent to filing of charge sheet, though summons was issued to him and bailable warrant of arrest was also issued against him, the petitioner did not appear before the court concerned hence, vide order dated 27.07.2018 non-bailable warrant of arrest was issued inter alia against the petitioner. On 28.08.2018 even though the execution report of non-bailable warrant of arrest was not received back by the court concerned, the proclamation under Section 82 of Cr.P.C. was issued and on 01.10.2018 even though report of proclamation made under Section 82 of Cr.P.C. was not received back, still the attachment order of the property of the accused persons of the case including the petitioner who is one out of two accused persons was issued under Section 83 of Cr.P.C.

4. Learned counsel for the petitioner submits that issuance of non-bailable warrant of arrest without recording any satisfaction that the petitioner is evading his arrest, is not sustainable in law. It is then submitted by the learned counsel for the petitioner that the proclamation under Section 82 of Cr.P.C. has been issued without following the due process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest that too without fixing any time and place for appearance of the petitioner hence, the same is also not sustainable in law. It is lastly submitted by the learned counsel for the petitioner that without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, passed order for attachment of the property of the petitioner under Section 83 of Cr.P.C. therefore, the same is also not sustainable in law. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

5. Learned Addl. P.P. appearing for the State vehemently opposes the prayer and submits that the very fact that the learned S.D.J.M., Hazaribagh has issued non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned S.D.J.M., Hazaribagh to be satisfied that there is justification for issuance of such non-bailable warrant of arrest, proclamation and attachment order. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that Section 73 of Code of Criminal Procedure vests power upon the Magistrate for directing warrant against accused persons involved in a case of non-bailable offences and evading his arrest.

7. Now coming to the facts of the case, it is crystal clear from the order dated 27.07.2018 that there is no material in the record to suggest that the petitioner was evading his arrest but still the learned S.D.J.M., Hazaribagh having issued non-bailable warrant of arrest against the petitioner without recording any satisfaction that the petitioner is evading his arrest, in the considered opinion of this Court, the said order dated 27.07.2018 is not sustai