SANJAY DAS vs THE STATE OF ASSAM AND ANR.

1.By this petition under Section 482 read with Sections 401/397 of the Code of Criminal Procedure, the petitioner/accused, who is arrayed as accused

in G.R. Case No.11520/2012 (Corresponding to Guwahati G.R.P. Case No.129/2012), pending in the Court of learned Chief Judicial Magistrate,

Kamrup (M) at Guwahati, has prayed for setting aside and quashing of the impugned orders, dated 21.09.2017 and 12.03.2018 passed therein,

whereby Proclamation and Attachment along with Non-bailable Warrant of Arrest have been issued against him.

Heard Mr. F. Hoque, learned counsel for the petitioner and Mr. B. Gogoi, learned Addl. P.P for the State/respondent No.1.

Mr. Hoque submits that the learned Court below without service of summon and execution of the bailable warrant of arrest on the

petitioner/accused, has issued proclamation and attachment order along with warrant of arrest. According to Mr. Hoque, the process aforementioned

issued against the petitioner/accused is apparently in contravention of requirement of Sections 82 and 87 Cr.P.C. and without recording any reason for

doing so.

Mr. Gogoi submits that in the backdrop of the facts averred in the petition, which is supported by an affidavit, the petitioner/accused may be

directed to appear before the learned Court below on the date fixed on 25.04.2018 and apply for regular bail. Mr. Gogoi further submits that he has no

objection against the prayer for quashing and setting aside the impugned orders.

On perusal of the order-sheet of G.R Case No. 11520/2012, it appears that on completion of investigation in Guwahati G.R.P. Case No. 129/2012,

charge-sheet under Sections 120 B/420/468/471 IPC read with Sections 25(1-B)(a)/29/30 Arms Act is submitted against the petitioner/accused and

three others, who were on bail. It is also noticed that although initially summon and thereafter, bailable warrant of arrest were issued to the

petitioner/accused, without completing the aforesaid process, the proclamation and attachment with non-bailable warrant of arrest has been issued

against him.

It is worthwhile to mention that Chapters VII and VIII Cr.P.C. provide for processes to compel appearance of the accused for facing trial. Section

87 lays down that a Court may in its discretion issue a warrant, with or without bail, in lieu of or in addition to a summon against an accused or a

witness, when there is reason to believe that he has absconded and/or will not obey the summons. So long as there is no cause for such an

apprehension, the Court is not justified to issue a non-bailable warrant of arrest as it affects deprivation of liberty. On the other hand, Sections 82 to 85

Cr.P.C. deal with persons who try to avoid the execution of warrant and thus, evade the process of law. The condition precedent for the applicability

of Section 82 Cr.P.C. is that any person against whom a warrant has been issued by the Court has absconded or concealing himself so that the

warrant cannot be executed. Then such Court may publish a proclamation requiring the appearance of that person. Conditions specified in Section 82

Cr.P.C. for issue of proclamation are mandatory and a contravention of any of these conditions render the proclamation and the proceedings

subsequent thereto illegal. Sub-Section(3) of Section 83 raises a conclusive presumption as to the compliance of Section 82 regarding publication of the

proclamation. However, the Court has to record the reason of satisfaction that the proclamation was duly published. The purpose behind issuing the

order of attachment is to compel the appearance of the accused against whom proclamation has been issued. It is a kind of penalty for his non-

appearance, notwithstanding the proclamation. The order of attachment should not be passed in haste, without application of mind by the Court and it

must be satisfied that the orders, both under Sections 82 and 83 are validly made order.

In the instant case, what it appears is that the learned Court below neither served summons nor executed the bailable warrant of arrest, before

issuing the proclamation and attachment with Non-bailable warrant of arrest and no reason has been recorded showing that unless coercive measures

were taken against the petitioner/accused, his appearance could not be assured who was on bail or that he intentionally avoided the process of Court.

Be that as it may, considering the serious nature of the case, this Court is not inclined to set aside and quash the impugned orders.

The petitioner/accused is directed to appear before the learned Court below, on or before 25.04.2018, and apply for regular bail, if so advised,

whereupon the learned Court below shall consider and dispose of the application, in accordance with law.

Till appearance before the learned Court, as directed above, the execution of the proclamation and attachment with warrant of arrest against the

petitioner/accused shall remain stayed. This disposes of the petition.