The main legal point established in the judgment is that the issuance of a proclamation and declaration of a person as an absconder is contingent upon the prior issuance of a warrant for the arrest of the said person, and the court must be satisfied that the accused is avoiding the execution of the warrants or has hidden himself before issuing a proclamation.

JUDGMENT

1. Both the petitions can be disposed of by a common Judgment since similar questions are involved and both the petitions and have been filed by the same person.

2. Briefly stated the prosecution case is that a police officer received secret information that one criminal gang which included the present petitioner as one of its members had assembled near Shanitala, old Motor Stand area. According to the prosecution, these persons had assembled and made preparation to commit dacoity in some house in that area. Thereafter, the police conducted a raid and cordoned off the area. Only one person, Amitabha Ghosh could be arrested on the spot and rest of the alleged offenders including the present petitioner fled away from the spot. Thereafter, FIR was presented before the concerned Magistrate and proceedings continued before him. An application for bail was filed and finally on 17th January, 2014 the charge sheet was filed wherein the present petitioner Rajendra Das was shown to be an absconder. Thereafter, on 10th February, 2014, the committing Magistrate i.e. the Chief Judicial Magistrate passed a detailed order, relevant portion of which reads as follows:--

"It appears from the Charge sheet that the investigating Police officer SI Rana Chaterjee submitted charge sheet against five accused persons including the present four accused persons showing accused Rajendra Das S/o. Lt. Lakhen Charan Das of Durjoynagar, PS. Airport showing him absconder.

Accordingly, office is directed to split up this case record for accused Rajendra Das and to issue Warrant of Proclamation and attachment against accused Rajendra Das."

3. This order is the subject matter of challenge in Criminal Petition No. 41 of 2014.

4. It appears that in the mean time, some of the co-accused applied for bail and the record was sent to the High Court and a shadow file was created by the trial Court. On 27th March, 2014, the records were sent back from the High Court and on this date, an order has been passed most of which is not relevant for the purpose of decision of this case, but in hand, it is mentioned "Issue W/A against accused Rajendra Das". This order is the subject matter of challenge in Criminal Petition No. 42 of 2014.

5. Mr. D.C. Kabir, learned counsel for the petitioner submits that in terms of Section 82 of the Code of Criminal Procedure, the petitioner could not have been declared to be an absconder nor any order of proclamation could be issued against him without first having issued a warrant and without the Court being satisfied that the accused is avoiding service. He also submits that the second order issuing warrants against the accused Rajendra Das is totally contrary to the previous order and therefore, is illegal and liable to be set aside. In support of his contention, Sri Kabir has relied upon the Judgment of the Gauhati High Court in : 2008 CRI. L. J. 3374 (Md. Nazrul Islam v. State of Assam) and of the Delhi High Court in : 2008 CRI. L.J. 3561 (Rohit Kumar alias Raju v. State of NCT Delhi & Anr.).

6. Section 82(1) of the Code of Criminal Procedure reads as follows:--

"82(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."

7. A bare perusal of this Section clearly shows that after a Court has reason to believe 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, the Court may publish a written proclamation. In this case, this Court is not required to go into the question of how and in what manner a proclamation is to be issued. The only issue is when can an accused be declared to be an absconder