Should the investigating officer make the application on affidavit to court to issue a proclamation order against the accused?

  As far as the legal position is concerned, if

the accused evades the arrest during the

investigation, no doubt the Investigating Officer

has power to arrest the accused without warrant,

if the offence is cognizable one, but for issuance

of proceeding under Section 82 Cr.P.C., the

investigating officer has to seek help of the

Court and only under the orders of the Court,

proclamation under Section 482 Cr.P.C. can be

issued.

Section 82(1) Cr.P.C. runs as under:-

"82(1). Proclamation for person absconding--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."

10. Section 82(1) Cr.P.C. clearly shows that

before issuance of proclamation under Section 82

Cr.P.C. issuance of NBW is necessary because

Section 82 Cr.P.C. itself says that "if the Court

has reason to believe that any person against

whom a warrant has been issued by it has

absconded or is concealing himself", hence the

issuance of NBW before proclamation under

Section 82 Cr.P.C is necessary. In the present

matter, the investigation is going on, wherein a

person died by consuming toxic liquor and the

petitioner is wanted for the investigation. But it

is also important that Magistrate should not pass

such order in a routine manner, on the simple

application of the Investigating Officer. The

application should be supported by an affidavit

of the Investigating Officer stating the reasons

why NBW and proclamation under Section 82

Cr.P.C. is required, as the issue relates to the

personal liberty of a person guaranteed under

Article 21 of the Constitution of India.

ALLAHABAD HIGH COURT

Case :- U/S 482/378/407 No. - 2261 of 2021

Kunwar Mahendra Pratap Singh @ Chandan Singh Vs State Of U.P. & Ors.

Coram: Hon'ble Mrs. Saroj Yadav,J.

Dated: 18.8.2021

1. This petition under Section 482 of The Code

of Criminal Procedure, 1973 (in short "Cr.P.C.)

has been filed by the petitioner to quash the

non-bailable warrant (in short "NBW") dated

08.06.2021 issued by the Chief Judicial

Magistrate, Ayodhya as well as the order dated

02.07.2021 issued under Section 82 Cr.P.C.

against the petitioner in Case Crime No. 107 of

2021, under Section 60-A, 60 of Excise Act and

Sections 302, 307, 120B, 419, 420, 467, 468,

471, 472 and 34 of the Indian Penal Code, 1860

(in short "I.P.C.", Police Station Gosaiganj,

District Ayodhya. A further prayer has been

made to direct the opposite parties no. 2 & 3

not to arrest the petitioner in pursuance of the

aforesaid orders.

2. Heard Sri S.P. Singh Somvanshi, learned

counsel for the petitioner and Sri Vipul Gupta,

learned Additional Government Advocate

appearing on behalf of the State.

3. Learned counsel for the petitioner submitted

that the Chief Judicial Magistrate has no power

to issue NBW as well as proclamation under

Section 82 Cr.P.C. against the petitioner in a

routine manner. The case is under investigation,

so the Court has no ground to issue NBW as the

Investigating Officer himself has power to arrest

without warrant. The Magistrate concerned has

issued NBW and proceeding under Section 82

Cr.P.C. in a routine manner without applying its

legal mind. In support of his contentions, he has

relied upon the following case laws:-

(i) Raghuvansh Dewanchand Bhasin Versus State Of

Maharashtra & Anr, AIR 2011 SC 3393,

(ii) Piyush Verma Versus The State of Jharkhand,

Cr. M.P. No. 435 of 2019,

(iii) Gurjeet Singh Johar Versus State of Punjab &

another, 2019 SCC On-line P&H 2606.

4. On the other hand, learned A.G.A. opposed

the submissions advanced by the learned counsel

for the petitioner and submitted that if the

person wanted in a crime evades arrest, then the

Investigating Officer seeks the help of the Court

to arrest the accused and complete the

investigation. Hence, there is no illegality in the

order issuing NBW and proclamation under

Section 82 Cr.P.C. Hence, this petition should be

rejected.

5. The record shows that the First Information

Report (in short "F.I.R.") No. 107/2021 was

registered at Police Station Gosaiganj, District

Ayodhya. It has been stated in the F.I.R. that

Dharmendra Kumar Verma, the son of the

complainant died on 01.04.2021 while on the

way to Lucknow for his treatment. The deceased

become ill as he consumed toxicated liquor on

30.03.2021 at the place of Rajnath Verma. He

was sent to Hospital at Gosaiganj from where he

was sent to District Hospital, thereafter he was

referred to Lucknow for better treatment but he

died while on the way. The extract of case

diary, which has been filed along with this

petition shows that the case is being investigated

under Section 60-A, 60 of Excise Act and

Sections 302, 307, 120B, 419, 420, 467, 468,

471, 472 and 34 IPC.

6. During investigation, the Investigating Officer

moved an application before the concerned

Magistrate for issuance of NBW against the

accused person and proceeding under Section 82

Cr.P.C. as the accused is evading the arrest. The

Magistrate passed the order accordingly.

7. Submission of the learned counsel for the

petitioner is that the Magistrate is not

empowered to issue such warrant and proceeding

under Section 82 Cr.P.C. In support of his

argument, he relied upon the above quoted case

laws.

8. The case law Raghuvansh Dewanchand

Bhasin Versus State of Maharashtra and

Another (Supra) is a case where the petitioner

an Advocate, was arrested despite of the fact

that his NBW was cancelled by the competent

Magistrate but the erring Officer did not get the

order of cancellation of warrant and he arrested

him. In the present case, the situation is entirely

different. In other case, Piyush Verma Versus

The State of Jharkhand (Supra) also is of no

help to the petitioner as that relates to a case in

which the trial is going on before the Court.

Here in the present matter, investigation is being

carried out. Next case i.e. Gurjeet Singh Johar

Versus State of Punjab & another (Supra) is

also of no help to the petitioner.

9. As far as the legal position is concerned, if

the accused evades the arrest during the

investigation, no doubt the Investigating Officer

has power to arrest the accused without warrant,

if the offence is cognizable one, but for issuance

of proceeding under Section 82 Cr.P.C., the

investigating officer has to seek help of the

Court and only under the orders of the Court,

proclamation under Section 482 Cr.P.C. can be

issued.

Section 82(1) Cr.P.C. runs as under:-

"82(1). Proclamation for person absconding--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."

10. Section 82(1) Cr.P.C. clearly shows that

before issuance of proclamation under Section 82

Cr.P.C. issuance of NBW is necessary because

Section 82 Cr.P.C. itself says that "if the Court

has reason to believe that any person against

whom a warrant has been issued by it has

absconded or is concealing himself", hence the

issuance of NBW before proclamation under

Section 82 Cr.P.C is necessary. In the present

matter, the investigation is going on, wherein a

person died by consuming toxic liquor and the

petitioner is wanted for the investigation. But it

is also important that Magistrate should not pass

such order in a routine manner, on the simple

application of the Investigating Officer. The

application should be supported by an affidavit

of the Investigating Officer stating the reasons

why NBW and proclamation under Section 82

Cr.P.C. is required, as the issue relates to the

personal liberty of a person guaranteed under

Article 21 of the Constitution of India.

11. Considering all these facts, the petitioner is

directed to appear before the Investigating

Officer for investigation purposes or surrender

before the Court concerned, if wanted in the

concerned case, within seven days from today, if

not already arrested or surrendered. For a period

of seven days from today, the implementation of

impugned order shall remain stayed.

12. In view of the aforesaid observation and

direction, the present petition is disposed of.

Order Date :- 18.8.2021

Arun (Saroj Yadav, J.)

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