” 82 Proclamation for person absconding.- (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.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous part of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also,if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Section 302,304,364,367,382,392,393,394,395,396,397,398,399,400,402,436,449,4 59 or 460 of the Indian Penal Code ( 45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1). ]”
11. Sub-section (4) of Section 82 of the Cr.P.C. appears to be applicable in respect of a person accused of an offence punishable under specific Sections of the Indian Penal Code indicated and the word proclaimed offender appears in the said Sub- Section (4) of Section 82 of the Cr.P.C. Some discretion has been given to court to hold inquiry before pronouncing any accused as proclaimed offender under sub-section (4) of Section 82 of the Code. Sub-Section (5) of Section 82 Cr.P.C. indicates that sub- section (2) and sub-section (3) shall apply to declaration made by the Court under sub- section (4) as they applied to the proclamation published under sub-section (1). In the present case we are not concerned with sub-section (4) because the petitioner is not an accused of the offence indicated under said sub-section (4) of Section 82 of the Code.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A.No. 4674 of 2012
Mahendra Kumar Ruiya. … … … … …Petitioner
-Versus-
- State of Jharkhand through.
- Gautam Kumar Dubey. … … …Opp. Parties
———-
CORAM: THE HON’BLE MR. JUSTICE D.N.UPADHYAY
For the Petitioner: Mr. Prashant Pallav, Advocate.
For the State A.P.P.
For the O.P.No.2: Onkar Nath Tiwary, Advocate.
———-
C.A.V. on 14.06.2013: Pronounced on 27.06.2013
———-
D.N.Upadhyay,J. The present application for grant of anticipatory bail has been filed on
behalf of Mahendra Kumar Ruiya in connection with P.C.R. No.416 of 2006,
corresponding to T.R.No.991 of 2012 under Sections 406/420 of the Indian Penal Code,
pending in the Court of the Chief Judicial Magistrate, Deoghar.
- The prosecution case as it appears from the complaint in brief is that the
petitioner and co-accused Shiv Kumar Ruiya have been appointed as receiver by the
Calcutta High Court under the A.P.O.T. No. 11/1997 ( Suit No.70/1966) in respect of
trust property of Ruiya Dharamsala Building appertaining to vacant land of Mouza
Jasidih No. 118 and Jasidih Bazar plot no. 28,29, 662/716 and 665 District Deoghar. An
advertisement for sale of Ruia Dharamsala’s vacant land was published whereafter the
complainant expressed his willingness to purchase the said property for a valuable
consideration of Rs. 1,05,00,000/- and out of said consideration amount, a sum of
Rs.7,00,000/- was paid as earnest money to the accused persons and after that they
entered into an agreement dated 18.10.2003. The accused persons had promised to
obtain permission from Calcutta High Court within three months but they did not do so
and retained the earnest money with them. The complainant made several approach to
the accused persons but they postponed the execution of sale-deed on one ground or the
other. Lastly the complainant made approach to Calcutta High Court and he could learn
that the accused persons had not taken step for seeking permission to sell the aforesaid
property in favour of the complainant. Since the complainant felt himself cheated by the
accused persons, he lodged a complaint in which cognizance was taken on 17.9.2008
and the accused persons including the petitioner were directed to face trial under
Sections 406/420 of the Indian Penal Code. Thereafter summons were issued but the
accused persons did not appear. They preferred Cr. Revision No. 154 of 2008 before
the Sessions Court which stood dismissed on 20.8.2010. When the accused persons did
not appear, warrant of arrest non-bailable was issued against them on 13.12.2010. Even
after issuance of warrant of arrest, they did not appear and then proclamation under
Section 82 Cr.P.C. was ordered to be issued. The present petitioner then preferred an
application for grant of anticipatory bail vide A.B.P.No. 628 2012 before the learned
Sessions Judge which was dismissed with certain observation on 16.10.2012 and the
petitioner was directed to surrender before the court-below within a period of three
weeks from the date of said order for seeking regular bail. When the petitioner did not
2.
appear in person before the court-below, process under Section 83 Cr.P.C. was directed
to be issued on 22.10.2012 thereafter the petitioner has preferred present application for
grant of anticipatory bail before this Court on 17.12.2012.
- It is submitted that the petitioner had not signed any document or
agreement in favour of the complainant nor he has received a single farthing from him.
The details of payment as stated in the agreement is Rs. 5,04000/- in cash and Rs.
1,96,000/- through bank draft in the account of receiver of which Shiv Kumar Ruiya
and Mahendra Kumar Ruiya are joint signatory. It is stated that no such demand draft
was ever credited in the account of receiver and therefore, the petitioner could not be
fastened with any liability. So far as cash amount is concerned, he had not given any
receipt against the said amount. It is also pointed out by referring Annexure-8 of
supplementary affidavit dated 9.4.2013 that the Hon’ble Calcutta High Court vide order
dated 20th February, 2003 had made it clear that filing of account by Mahendra Kumar
Ruiya (petitioner) is hereby dispensed with.
- Learned Counsel has submitted that alleged agreement was executed on
18.2.2003
but the Complainant never approached the Calcutta High Court for seeking suitable direction for transfer of the land nor he has filed any suit for specific performance of contract rather he has filed a criminal case in the year 2006 vide P.C.R.No.416 of 2000.
- On the other hand learned Counsel for the complainant has vehemently opposed the prayer for bail and referred the judgment reported in (2012) 8 Supreme Court Case 730 “Lavesh Vrs. State (NCT of Delhi”. It was submitted that the petitioner is not entitled for anticipatory bail since he has been declared proclaimed absconder in terms of Section 82 of the Cr.P.C. Since the accused persons were concealing themselves and evading their appearance, process under Section 83 Cr.P.C. was also issued against them. Furthermore, the petitioner had acknowledged the execution of agreement for sale of the property of Ruiya Dharamsala and the demand draft for Rs.1,96,000/- was issued in the joint name of both the receiver appointed by the Calcutta High Court.
- In reply to the argument advanced on behalf of the complainant, learned Counsel appearing for the petitioner has submitted that the petitioner was never declared proclaimed offender as required under sub-section (4) of Section 82 of the Cr.P.C. The provisions contained under sub-section (2) & (3) of Section 82 of the Cr.P.C. have not been complied with. The petitioner had never been concealing himself nor evading his appearance rather he had preferred Cr. Revision against the order of cognizance dated 17.9.2008 and after disposal of said revision application, he preferred application for grant of anticipatory bail and thereafter present application before this Court. Under such circumstances it could not be said that he had been concealing himself or evading his appearance. He has also referred a judgment of Madrash High Court dated 8.12.2010 vide CRL O.P.No.18861/2010 ” Anandan @ Duglas Devananda Vrs. The State by Inspector of Police.
- The rival submission has raised a question whether a person, accused of an offence against whom process under Section 82 Cr.P.C. has been issued, shall be debarred from getting benefit of Section 438 Cr.P.C.?
- Before adverting any opinion, I would like to quote Section 438(1) of the Cr.P.C. which reads as under:-
” Direction for grant of bail to person apprehending arrest.-(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.”
It makes it clear that in a non-bailable offence if a person has reason to believe that he may be arrested, he is free to apply to the High Court or the Court of Session praying that in the event of such arrest, he shall be released on bail.”
- In the given facts and circumstances, the grounds for consideration of anticipatory bail enumerated under clause (iii) of Section 438 (1) ‘the possibility of the applicant to flee from justice’ appears to have been attracted. The petitioner has filed entire order-sheet passed in connection with Complaint Case being P.C.R. No. 416 of 2006. As per order dated 21.08.2012, direction to issue processes under Sections 82 & 83 Cr.P.C. was passed when the petitioner could not be arrested even after issuance of warrant of arrest non-bailable. In view of the order dated 21.8.2012 only process under Section 82 Cr.P.C. against the petitioner was issued on 28.8.2012. When the anticipatory bail application preferred by the petitioner vide A.B.P.No. 628 of 2012 was disposed of by the learned Sessions Judge, the learned Magistrate has directed to issue process under Section 83 Cr.P.C. as against the accused persons including the petitioner on 22.11.2012.
- Since the liberty given to an accused under Section 438 Cr.P.C. is going to be curtailed, if process under Section 82 Cr.P.C. against him has been issued, I would like to discuss the provisions and requirement contained under Section 82 of the Cr.P.C. which reads as under:-
” 82 Proclamation for person absconding.- (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.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous part of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also,if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Section 302,304,364,367,382,392,393,394,395,396,397,398,399,400,402,436,449,4 59 or 460 of the Indian Penal Code ( 45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1). ]”
- Sub-section (4) of Section 82 of the Cr.P.C. appears to be applicable in respect of a person accused of an offence punishable under specific Sections of the Indian Penal Code indicated and the word proclaimed offender appears in the said Sub- Section (4) of Section 82 of the Cr.P.C. Some discretion has been given to court to hold inquiry before pronouncing any accused as proclaimed offender under sub-section (4) of Section 82 of the Code. Sub-Section (5) of Section 82 Cr.P.C. indicates that sub- section (2) and sub-section (3) shall apply to declaration made by the Court under sub- section (4) as they applied to the proclamation published under sub-section (1). In the present case we are not concerned with sub-section (4) because the petitioner is not an accused of the offence indicated under said sub-section (4) of Section 82 of the Code.
Therefore, I have to see whether provisions against issuance of proclamation u/s 82 sub-section (1) (2) & (3) have properly been complied with or not. Sub-section (1) empowers the Court to issue written proclamation with certain direction to appear at a specified place and a specified time against a person who is either absconded or concealing himself so that the warrant issued against him could not be executed. Sub-section (2) of Section 82 of the Code indicates the manner in which a proclamation shall be published or executed. In this connection compliance of Sub- Section (3) of Section 82 of the Code is very much important. This sub-section speaks about the subjective satisfaction of the Court and such subjective satisfaction of the Court must be reduced into writing to the effect that the proclamation was duly published on a specific date in the manner specified in clause (i) of sub-section (2) and that shall be the conclusive evidence that requirement of this section had been complied with and the proclamation was duly published. Such statement recorded in writing shall be the consequence for the next step for issuance of process under Section 83 of the Cr.P.C., therefore, before proceeding with provision contained under Section 83 of the Cr.P.C. the Court issuing a proclamation under Section 82 must record a reason in writing that even after issuance of proclamation the accused did not comply the direction and remained absconding or concealing himself or evading his appearance. The primary meaning of the word abscond is to hide and when a person is hiding from the place of his residence he is said to be absconder. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. In that view of the matter, I feel that strict compliance of sub-section (3) of Section 82 Cr.P.C. is very much required for declaring any accused as absconder. I would further like to explain that Section 82 Cr.P.C. has mainly three parts. As per first part of the Section it is well settled that issuance of warrant is condition precedent for issuance of process of proclamation under Section 82 of the Code. The Court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself so that such warrant cannot be executed. Second part suggest as to how proclamation has to be given effect or published to make the accused acquaint that his appearance is required in connection with particular case before a particular Court. The third part as indicated under sub-section (4) of Section 82 of the Cr.P.C. gives more discretion to make inquiry against an accused who has committed offence indicated under sub-section (4). After recording reasons the Court can declare an accused of such offence as proclaimed offender. To make the view more clear, I would like to refer Section 174 (A) I.P.C. under which disobedience of proclamation has been made punishable, which reads as follows:-
” 174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure, 1973 ( 2 of 1974) shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”
- This inserted Section 174A of the I.P.C. has two parts ‘the first part of the Section relates for the punishment against a person against whom proclamation has been issued and published under sub-section (1) & (2) of Section 82 of the Code and the punishment is up-to three years or with fine or with both whereas ‘the second part of the offence relates to a declaration made under sub-section (4) of Section 82 under which a person has been pronounced as proclaimed offender and the punishment is severe than the first part which may extend to 7 years and shall also be liable to fine’. Now I feel it desirable to refer paragraph 11 & 12 of the judgment “Lavesh Vrs. State (NCT of Delhi” ( supra).
- In view of the observation made in para 12 of the said judgment it appears that a person against whom proclamation under Section 82 Cr.P.C. has been issued is not entitled to the relief of anticipatory bail but then proper compliance of Section 82 as discussed above is very much essential.
- Now coming to the facts of this case and the orders passed in P.C.R. No. 416 of 2006 I find that proclamation as required under Section 82 Cr.P.C. has properly not been done and no statement as required under sub-section (3) of Section 82 Cr.P.C. has been recorded. The issuance of process under Section 83 Cr.P.C. vide order dated 22.11.2012 also do not appear to be in accordance with law because the requirement of Section 82 Cr.P.C. has not properly been complied with.
- Let us come to the facts of the case from which it is clear that the complainant instead of filing any application before the Hon’ble Calcutta High Court informing about the agreement executed between the complainant and the accused persons for seeking any relief, lodged the present criminal case. The complainant has failed to bring on record that the petitioner had received earnest money in cash from him. So far as demand draft is concerned it was submitted that the petitioner had not deposited the same for its encashment.
- In the aforesaid circumstances, the petitioner is directed to surrender before the court-below within three weeks from today and if he does so he shall be released on bail on furnishing bail bond of Rs. 10,000/- ( Ten thousand) with two sureties of like amount each to the satisfaction of the Chief Judicial Magistrate, Deoghar in connection with P.C.R. Case No. 416 of 2006, corresponding to T.R. No. 991 of 2012, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.
[D.N.Upadhyay,J.] P.K.S./N.A.F.R.