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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R.REGUPATHI
V.G.K. Senthilnathan
Versus
The Director General of Police, Tamil Nadu Police Head Quarters & Others
Crl.O.P. Nos.18411, 16414, 13992, 20051 and 20052 of 2009
Decided on: 06-10-2009
(B) Code of Criminal Procedure, 1973, (2 of 1974)-Sec.76, 82, 83-Warrant-Non-bailable warrant-Issuance-Criteria-Failure to execute-Consequence-Non-bailable warrant is not to be issued as a matter of course and only when the other mode of securing the accused fails or in deserving cases it is to be issued- Issuance of non-bailable warrants is the ultimate course adopted by the Courts to secure the presence of the accused so as to conduct the proceedings for deciding the cases and if such mode turns to be a failure, the justice delivery system would be at stake.
Magistrates/Criminal Courts vested with judicial discretion, issue non-bailable warrants not as routine in all matters but only in deserving cases where the accused is charged with the commission of an offence of a heinous crime and it is feared that he may tamper with or destroy the evidence or he is likely to evade the process of law. In general practice, at the first instance, courts direct service of summons along with the copy of the complaint and if the accused is non-compliant and seems to be avoiding the summon, the court, in the second instance would issue bailable-warrant and only thereafter, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant is resorted to. Therefore, issuance of non-bailable warrants is the ultimate course adopted by courts to secure the presence of the accused so as to conduct the proceedings for deciding the cases and if such mode turns to be a failure, undoubtedly, the justice delivery system would be at stake. That is why, to take care of such exigency, the Code provides further modes through Sections-82 and 83 at Section-C of Chapter VI titled ’Proclamation and Attachment’. Para 9
(C) Code of Criminal Procedure, 1973, (2 of 1974)-Sec.76, 82, 83-Proclamation-Publication-Failure to obey-Attachment of property-Procedure-Effect-Limitation-Withdrawal-Proclamation should grant 30 days time to the proclaimed person to appear before the Court or authorities and on his failure, on the expiry of 30 days, his properties can be attached-Properties of the proclaimed offender is to be attached only when the accused is about to dispose of such properties or remove the same out of the jurisdiction of the Court- Ultimate purpose of the provisions regarding proclamation of the accused and attachment of his properties is to secure his presence and once the task is accomplished, the attachment will be withdrawn and the property attached is restored.
Before publishing the "written proclamation" requiring the accused to appear under the said provision, Courts must record the reasons either after taking evidence or without evidence that a person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed. Sub-section (1) provides that the Court shall wait for thirty days after publication of the proclamation for the appearance of the accused and the procedure for publication of the proclamation is prescribed in sub-section (2) of Section 82. It is only after processes involved under Section 82 Cr.P.C are exhausted that the next step under Section 83 is taken. Section-83 is rather prompt in proceeding towards next step, for, the language employed is ’at any time after the issue of the proclamation’, the Court may order attachment of any property movable or immovable or both belonging to the proclaimed person. The ultimate purpose of this Section is to secure the presence of the accused and once the task is accomplished, the attachment will be withdrawn and the property attached is restored. Further, even the order of attachment of property has two pre-requisites viz., (i) the court has to satisfy itself either by affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to dispose of whole or any part of the property and (ii) he is about to remove whole or part of the property from the local jurisdiction of the court. Para 9
(D) Code of Criminal Procedure, 1973, (2 of 1974)-Sec.76, 82, 83-Warrant-Non-bailable warrant-Execution-Time limit-Non-bailable warrants issued by the Courts are to be executed by the police officers within a period of 30 days and the Magistrate issuing such warrant has to mention the time limit in the warrant.
Time frame is absolutely necessary for execution of warrants so as to make the relevant provisions effective and result-oriented. For such purpose, the time factor provided in Section 82 viz., 30 days respite for appearance of the accused person from the date of publication of proclamation to appear before court, may be imported for the purpose of execution of warrants also so that the enforcement agency would act with a sense of responsibility and urgency. ………. By taking into consideration the workload on the police officers and the various tasks required to be performed by them including investigation of countless cases being lodged day by day, I am of the view that the Station House Officers must be granted sufficient and reasonable time to execute the warrant as they have to conduct search at various places to reach the person against whom warrant is issued and in that perspective, the learned Magistrates may fix a time limit of 30 days for the enforcing agency to come forward either with execution or a status report. Para 10
Common Judgment:
The petitioner in Crl.O.P. No.18411 of 2009 is the son of one Kaliyamoorthy, who was murdered on 011. 1990 and the accused-trio faced trial before the Sessions Court, East Thanjavur (Nagapattinam) in S.C. No.110 of 1991 and ultimately, A1 was found guilty under Section 302 IPC and sentenced to undergo life imprisonment while A2 and A3 were convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for 5 and 3 years respectively. On Appeal before this Court in C.A. No.735 of 1992, though the sentence imposed by the trial court was suspended by ordering the miscellaneous petitions, by Judgment dated 27.03.2001, the appeal was dismissed, whereupon, A-3 surrendered and served the sentence while A-1 and A-2 did not surrender and they remain to be at large in spite of the Non-Bailable Warrants issued; therefore, the petitioner seeks to direct the respondents to secure A-1 and A-2 for serving the remaining period of sentence.
2. In Crl.O.P. Nos.13992, 16414, 20051 and 20052 of 2009, the petitioners/complainants in C.C. No.381 of 2006 on the file of JM-V, Salem, C.C. No.36 of 2007 on the file of JM, Tiruttani and C.C. Nos.652 and 130 of 2006 on the file of JM-I, Tiruppur, seek to execute the Non-Bailable Warrants issued against the accused concerned.
3. All the above Criminal Original Petitions pertain to prayer for execution of NBWs of course in variant proceedings pending before different criminal courts, hence, they are disposed of by this Common Judgment.
4. Learned counsel for the petitioner in Crl.O.P.18411 of 2008 submits that A-1 and A-2, who are brothers, are attending public functions along with political leaders and though they are apparently visible in the society, because of their high political influence, the respondent police never turned towards them to perform the legal obligation as a law enforcing agency. Several representations sent repeatedly with the final one on 06.08.2009 did not yield any outcome; hence, the petitioner has been constrained to prefer the present petition for a direction to secure them so that they are sent to Prison for undergoing the remaining period of sentence.
4-A. To begin with, learned Additional Public Prosecutor, by assuring this Court that such unwanted instances would not recur in future, submits that the present officer of the 4th respondent-police station has taken charge only on 13.08.2009 and, on coming to know that the accused persons in the murder case are still absconding, he approached Judicial Magistrate-I, Mayiladuthurai, who issued a Non-bailable Warrant dated 09.09.2009, whereupon, A2 was arrested on 28.09.2009 while A1 surrendered before the Sessions Court, Nagapattinam, on 010. 2009. He states that in between 2001 and 2009, several Officers were sequentially in charge of the 4th respondent-police station and that the Officer, who is now serving in the said Station, soon after issuance of notice by this Court, received NBW from the court of the Magistrate and duly executed the same. He further states that because of transfer of officers and hectic pressure and workload, sometimes pendency of NBWs escape their notice and as a consequence thereof, enquiry, trial and further proceeding of criminal cases are unfortunately getting delayed. He submits that necessary instructions would be given to the first respondent, Director General of Police, Tamil Nadu, for suitably directing the Station House Officers relating to execution of pending NBWs without any delay so that the absconding accused could be secured and made available in future for the enquiry/trial/further proceedings before court.
Focussing on the prevalent situation in the Criminal Justice Administration, learned Additional Public Prosecutor states that in some cases where accused is absconding and final report is ready to be filed, the committal courts decline to accept the final report and insists for production of the accused and there are instances where, for th
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