Anil Kumar Rai and Ors. vs State of U.P.& Anr.

K.N. Sinha, J.—Heard learned Counsel for the revisionists, learned A.G.A. and perused the order passed by the trial Court. It appears that during trial on 582004 the accused/ revisionists moved application for their exemption from attendance through Counsel. No order was passed on that application.

The facts of this case are peculiar in nature. They show the ignorance of law on the part of the Court. The trial was under Section 308/325 IPC. The accused on 582004 did not appear in the Court. However, an application for exemption from attendance on this date was moved through Counsel. It seems that the trial Court did not pay any attention to this application. Since no order was passed on the said application before passing the order of cancellation of bail, the impugned order was uncalled for. The order is unreasonably harsh on the applicant. It prima facie is unwarranted. Not only the bail was cancelled, sureties were noticed and nonbailable warrants issued but the step next to it was also taken. The wrath of the Court is evident so much so that he also directed for drawing proceedings under Section 82/83 Cr. P.C. This is exceeding of the authority clearly.

Normally order under Section 82/83 Cr. P.C. should have been passed only if the accused persons had evaded the execution of nonbailable grant and could not be arrested and produced by the police before the Court. Simultaneous passage of two orders, non bailable warrant notice to sureties, forfeiture of bail bonds alongside issuance of proceeding under Section 82/83 Cr. P.C., therefore, are exclusively harsh upon an accused especially when their application for exemption from attendance was already pending consideration before the same judicial officer. The pendency of the application for exemption from attendance is clear from the certified copy of the application appended to the revision by the Counsel. There cannot be any doubt therefore, about is existence. Thus the power of the Court without rejecting that application in drawing the proceedings under Section 82/83 Cr. P.C. cannot be claimed to be sound and tantamounts to abuse of the authority. The order of cancellation of bail and drawing of the proceedings under Section 82/83 Cr. P.C. ought to have been passed only after deciding that application.

It is unfortunate that the trial Judge do not know what language is to be used. Instead of stating that bail is cancelled, he has said that ''liberty of bail is withdrawn''. It is not withdrawn but cancelled. There are principles on which alone such an order can be passed. The law only recognize either grant of bail or cancellation of bail. Nothing is in between. The officer must know that before the proceedings under Section 83 Cr. P.C. can be drawn a proceeding ought to be drawn under Section 82 Cr. P.C. and if the accused doe not respond to the notice only then the police officer use to move the Court for initiation of proceeding under Section 83 Cr. P.C.

Simultaneously both the proceedings cannot be drawn normally. It can be drawn only if the above situation is clearly available to the Court. Therefore, I am in agreement with the learned Counsel''s submission that proceedings under Section 82/83 Cr. P.C. cannot be drawn unless the nonbailable warrant remains unexecuted for the mischief of the accused. Thirty days later the proceedings under Section 82 Cr. P.C. proceeding under Section 83 Cr. P.C. can be drawn in law. These are the distinctions which are to be borne in mind by the Additional Sessions Judge, who passed the impugned order. The officer is the first Additional Sessions Judge, meaning thereby that he has sufficient experience. An experienced officer is not expected to commit such mistakes of law, which processes his ignorance of the same. It appears that office has forgotten to revise the laws. This is not a healthy state of affair. If the Court will not adhere the laws how can it be expected from the others.

The proper procedure for drawing the proceedings under Section 82/83 Cr. P.C. read as under.

Section 82 Cr. P.C. lays down that the process under Section 82 can be issued only if the Court (whether after taking evidence or not) comes to the conclusion 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.

Thus it is clear that issue of nonbailable warrant is a condition precedent before the issue of process under Section 82 Cr. P.C.

Section 83 Cr. P.C. further lays down that the Court issuing a proclamation under Section 82 Cr. P.C. may, for reasons to be recorded in writing, at any time after the issue of proclamation, order the attachment of any property, moveable or immovable or both, belonging to the proclaimed person. Thus the proceedings under Section 83 Cr. P.C. can be drawn only after the Court has come to the conclusion that the accused even after proclamation''s publication warranting him to appear is deliberately not doing so. This is a condition for drawing proceeding under Section 83 Cr. P.C. Thus clearly a bar therein is to be read for issuance of a proclamation under Section 82 Cr. P.C. and consequent attachment of his property under Section 83 Cr. P.C. In the proceeding, as has been earlier discussed, nonbailable warrant on cancellation of bail was already issued. What the Court was required to do is to wait for the execution of nonbailable warrant, which he has directed to be issued. Unless a reason is recorded that the accused is evading execution of warrant and is adhering to some other devices for its no execution only then the steps under Section 82 Cr. P.C. ought to have been adhered to. Section 83 Cr. P.C. comes in play thirty days later. Simultaneously order for both the proceedings, therefore is beyond reckoning. There is a proviso to Section 83 Cr. P.C. which speaks about issuance of simultaneous direction for attachment of property but his is subject to fulfillment of understated conditions :

(a) The accused is about to dispose of the whole or any part of his property, or

(b) The accused is about to remove the whole or any part of his property from the local jurisdiction of the Court.

None of these two conditions was discernible in the present set of facts.

The application for exemption remains undetermined. No orders were passed on the said application before issuing the nonbailable warrant and also directing for initiating proceeding under Section 82/83 Cr. P.C. The act, therefore was post haste. The Courts are not expected to act in such manner. I therefore, find it expedient to allow the revision and to quash the entire order.

The revision is allowed and the order dated 582004 is set aside. As the bonds have not been forfeited hence the accused revisionists shall remain on the same bail bonds and appear before the concerned Court on the date fixed.

The registry of this Court shall place a copy of this order alongwith records before the Administrative Judge of Ghazipur for his consideration and administrative action against the concerned Additional District and Sessions Judge.

Revision allowed.