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HIGH COURT OF ALLAHABAD
I.M. Quddusi, J.
Udai Bhan Karwaria - Appellants
Versus
State Of U P - Respondents
Decided on : Sep 26, 1996
CRIMINAL PROCEDURE CODE - SECTIONS 82 AND 83 - ATTACHMENT OF PROPERTY - PROCLAMATION - ABSENTEE - INTERPRETATION - APPLICABILITY.
Fact of the Case:
The applicants were involved in a criminal case and non-bailable warrants were issued against them. The Chief Judicial Magistrate issued a proclamation under Section 82/83 of the Code of Criminal Procedure (CrPC) against two of the applicants and under Section 82 CrPC against the third applicant. The applicants challenged the order, arguing that the process under Section 82/83 CrPC cannot be ordered together by one and the same order and that they could not be termed as 'absconders'.
Finding of the Court:
The court held that the process under Section 82/83 CrPC cannot be ordered by one and the same order and that the applicants could not be termed as absconders in the facts and circumstances of the case. The court also held that the learned Sessions Judge had not exercised his jurisdiction properly conferred on him under Section 397/399 CrPC and that the purposes of circulation of the judgment of this Court in the case of Devendra Singh Negi alias Debu (supra) to all Magistrates to follow the same had been defeated.
Issues: 1. Whether the process under Section 82/83 CrPC can be ordered by one and the same order? 2. Whether the applicants could be termed as 'absconders' in the facts and circumstances of the case?
Ratio Decidendi: 1. The court held that the provisions of Sections 82 and 83 CrPC are mandatory and are to be construed strictly. Section 82 requires that the court must, in the first instance, issue a warrant and it must put down its reasons for believing that the accused is absconding or concealing himself. Thus, in every case where the warrant is not executed, resort cannot be had to Section 82 and it may be necessary to examine the officer concerned who had gone to execute the warrant and to the measures adopted by him to serve the same. 2. The court held that the applicants could not be termed as absconders or were concealing themselves within the meaning of Section 82 CrPC in the facts and circumstances of the case.
Final Decision: The court allowed the petitions and quashed the orders of the learned Sessions Judge and the Chief Judicial Magistrate. It further ordered that in case the property of the applicants has been attached, the same shall be released forthwith.
Key Points: - The provisions of Sections 82 and 83 CrPC are mandatory and must be construed strictly, requiring the court to issue a warrant first and record reasons for believing the accused is absconding or concealing themselves (!) (!) (!) . - The process under Section 82 and Section 83 CrPC cannot be ordered together by one and the same order; normally, attachment can only occur after the expiry of 30 days from the proclamation (!) (!) (!) . - An accused cannot be termed as an absconder merely for not being immediately available; the court must record specific satisfaction that the warrant cannot be executed due to absconding or concealment (!) (!) . - The court held that the applicants in this case could not be termed as absconders because the warrant was issued and the proclamation passed immediately without proper examination of execution measures (!) (!) . - The High Court quashed the orders of the Sessions Judge and Chief Judicial Magistrate for violating the mandatory procedural requirements of the CrPC (!) (!) . - If property has been attached in violation of these provisions, it must be released forthwith (!) . - The learned Sessions Judge failed to exercise jurisdiction properly by upholding an order that contradicted the precedent set in Devendra Singh Negi alias Debu (!) (!) . - The court exercised its inherent powers under Section 482 CrPC to correct the legal errors made by the lower courts (!) (!) . - Attachment of property under Section 83 can only be made if the court is satisfied by affidavit or otherwise that the person is about to dispose of or remove property from local jurisdiction (!) (!) . - The judgment emphasizes that the principles of equality and non-arbitrariness under Article 14 of the Constitution prevent arbitrary issuance of attachment orders (!) .
I. M. Quddusi, J.
1. Heard the learned counsel for the applicants and the learned Additional Government Advocate.
2. CRIMINAL Misc. Application No. 3670 of 1996 has been filed on behalf of Udaibhan and Suraj Bhan Karwaria while CRIMINAL Misc. Application No. 3760 of 1996 has been filed on behalf of Kapil Muni Karwaria.
These applications have been filed against the order dated 16.8.1996 passed by the Chief Judicial Magistrate, Allahabad and 17. 8. 1996 passed by the learned Sessions Judge, Allahabad.
3. THE learned Chief Judicial Magistrate has issued Proclamation under Section 82/83 Code of Criminal Procedure by one and the same order against Udai Bhan Karwaria and Suraj Bhan Kar waria and only under Section 82 Cr. P. C. against Kapil Muni Karwaria.
4. LEARNED Counsel for the applicants has contended that process under Section 82, Cr. P. C. and order of attachment of property under Section 83 Cr. P. C. cannot be ordered together by one and the same order, but the learned Magistrate vide his order dated 16th August, 1996 issued process under Section 82, Cr. P. C. and passed order under Section 83, Cr. P. C. together against the first two applicants, viz. Udai Bhan Kar waria and Suraj Bhan Karwaria and that the applicants cannot be termed as 'absconders.
Brief facts of the case are that the applicants are involved in Case Crime No. 515 of 1996 under Section 147, 148, 149, 302, 307/34 I.P.C. and Section 7 of Criminal Laws Amendment Act, Police Station Civil Lines, Allahabad regarding an incident which had taken place on 13.8.1996. On 14.8.1996 an application was moved by the Officer-in-Charge of the Police Station Civil Lines, before the Chief Judicial Magistrate, Allahabad to issue process against the applicants under Sections 82/83 Cr. P. C. A copy of that application and af fidavit has been filed as Annexure "1" to the affidavit filed in support of the present application. Non-bailable warrants were is sued on 14.8.1996 On the same day wife of Kapil Muni Karwaria, namely, Shrimati Kalpana Karwaria moved an application before the Chief Judicial Magistrate, refer ring the case law laid down by this Court in the matter of Devendra Singh Negi alias Debu v. State of U. P., 1993 U. P. Cr. R. 260 : 1993 JIC 434 (All) and prayed for not issuing order under Section 83, Cr. P. C. On 16-8-1996 again the officer-in-charge of police station Civil Lines, submitted a report before the Chief Judicial Magistrate for issuing process against the applicants under Sections 82/83 Cr. P. C. He had also filed an affidavit along with the report, a copy of which has been filed as Annexure "3 to the affidavit filed in support of the application. The learned Chief Judicial Magistrate, Allahabad passed an order issuing process against the first two applicants under Section 82/83, Cr. P. C. for proclammation and attachment of property. Considering the report submitted on the non-bailable warrant already issued, the same day. Against the said order the applicants preferred Criminal Revision No. 889 of 1996 before the Sessions Judge, Allahabad which was dismissed on 17-8-19%. There after the applicants have filed these petitions under Section 482, Cr. P. C. for interference by this Court.
5. THE two points involved in these petitions are whether the process under Section 82/83, Cr. P. C. can be ordered by one and the same order mentioning therein specifically that the process under Section 82 / 83, Cr. P. C. shall be issued against the first two applicants together, and whether in the facts and circumstances of the case the applicants could be termed as absconders.
6. LEARNED counsel for the applicants submitted that in one similar matter this Court issued contempt notice against the Judicial Magistrate, Lucknow on the ground that the order under Section 82/83 Cr. P. C. was passed by him contrary to the law laid down by this Court in the case of Devendra Singh Negi alias Debu (supra) which was circulated to all the concerned Magistrates. This is a
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