Udai Bhan Karwaria and Others vs State of U.P.

I.M. Quddusi, J.—Heard the learned Counsel for the applicants and the learned Additional Government Advocate.

Criminal Misc. Application No. 3670 of 1996 has been filed on behalf of Udai Bhan and Suraj Bhan Karwaria while Criminal Misc. Application No. 3760 of 1996 has been filed on behalf of Kapil Muni Karwaria.

These applications have been filed against the order dated 16.8.1996 passed by the Chief Judicial Magistrate, Allahabad and 17.8.1996 passed by the learned Sessions Judge. Allahabad.

The learned Chief Judicial Magistrate has issued proclamation u/s 82/83, Code of Criminal Procedure by one and the same order against Udai Bhan Karwaria and Suraj Bhan Karwaria and only u/s 82, Code of Criminal Procedure against Kapil Muni Karwaria.

Learned Counsel for the applicants has contended that process u/s 82, Code of Criminal Procedure and order of attachment of property u/s 83, Code of Criminal Procedure cannot be ordered together by one and the same order but the learned Magistrate vide his order dated 16th August, 1996 issued process u/s 82, Code of Criminal Procedure and passed order u/s 83, Code of Criminal Procedure together against the first two applicants, viz., Udai Bhan Karwaria and Suraj Bhan Karwaria and that the applicants cannot be termed as ''absconders''.

Brief facts of the case are that the applicants are involved in case Crime No. 515 of 1996 under Sections 147, 148, 149, 302 and 307/34, I.P.C. and Section 7 of Criminal Laws Amendment Act, Police Station Civil Lines, Allahabad regarding an incident which had taken place on 13.8.1996. On 14.8.1996 an application was moved by the Officer-in-charge of the Police Station Civil Lines, before the Chief Judicial Magistrate, Allahabad to issue process against the applicants u/s 82/83, Code of Criminal Procedure. A copy of that application and affidavit has been filed as Annexure "1" to the affidavit filed in support of the present application. Non-bailable warrants were obtained on 14.8.1996. On the same day wife of Kapil Muni Karwaria, namely Shrimati Kalpana Karwaria moved an application before the Chief Judicial Magistrate, referring the case law laid down by this Court in the matter of Devendra Singh Negi alias Debu v. State of U.P. and Anr. 1993 Crl R 260, and prayed for not issuing order Section 83, Code of Criminal Procedure. On 16.8.1996, again the Officer-in-charge of Police Station Civil Lines, submitted a report before the Chief Judicial Magistrate for issuing process against the applicants u/s 82/83, Code of Criminal Procedure. He had also filed an affidavit along with the report, a copy of which has been filed as Annexure "3" to the affidavit filed in support of the application. The learned Chief Judicial Magistrate, Allahabad passed an order issuing process against the first two applicants u/s 82/83, Code of Criminal Procedure for proclamation and attachment of property, considering the report submitted on the non-bailable warrant already issued, the same day. Against the said order the applicants preferred Criminal Revision No. 889 of 1996 before the Sessions Judge, Allahabad which was dismissed on 17.8.1996. Thereafter, the applicants have filed these petitions u/s 482, Code of Criminal Procedure for interference by this Court.

The two points involved in these petitions are whether the process u/s 82/83, Code of Criminal Procedure can be ordered by one and the same order mentioning therein specifically that the process u/s 82/83, Code of Criminal Procedure shall be issued against the first two applicants together, and whether in the facts and circumstances of the case, the applicants could be termed as absconders.

Learned Counsel for the applicants submitted that in one similar matter this Court issued contempt notice against the Judicial Magistrate I, Lucknow on the ground that the order u/s 82/83, Code of Criminal Procedure was passed by him contrary to the law laid down by this Court in the case of Devendra Singh Negi alias Debu (supra) which was circulated to all the concerned Magistrates. This is also reported in the case of Lakshman Singh v. State of U.P. 1994 UP CrR 8. It has also been contended that not only that the law laid down in the case of Devendra Singh Negi was circulated to all the Magistrates, the wife of applicant Kapil Muni Karwaria moved an application and specifically brought the law laid down by this Court to the notice of the Chief Judicial Magistrate, and yet the learned Chief Judicial Magistrate did not pay heed to this and passed the impugned order. The learned Counsel submits that in the situation which is identical to that case, this Court not only exercises its inherent jurisdiction u/s 482, Code of Criminal Procedure but the powers u/s 483, Code of Criminal Procedure are also liable to be exercised as the disposal of the application by the learned Magistrate is not proper which is itself clear from the law laid down in the case of Devendra Singh Negi alias Debu (supra) as well as the case of Lakshman Singh (supra).

The next question which falls for consideration is whether in the peculiar circumstances of the case, this Court should exercise its powers and Jurisdiction u/s 482, Code of Criminal Procedure while in fact the Criminal Revision preferred by the applicants has been dismissed by the learned Sessions Judge.

In the matter of Ganesh Narayan Hegde Vs. S. Bangarappa and Others, , the Hon''ble Supreme Court has held that while it is true that availing of the remedy of the revision to the Sessions Judge u/s 399 does not debar a person from invoking the powers of the High Court u/s 482, Code of Criminal Procedure, it is equally true that the High Court should not act as second revisional court in the garb of exercise of inherent power. While exercising its inherent powers in such a matter, it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisional power in the matter.

I have perused the order of the learned Sessions Judge in revision and I find that the learned Sessions Judge has not correctly dealt with the case law laid down in Devendra Singh Negi''s case (supra) which was circulated to all the concerned Magistrates in the State for the purpose that they may follow the same. This is not the case that the learned Sessions Judge was not aware of this case as this case law was specifically referred by the counsel appearing on behalf of the wife of Kapil Muni Karwaria before the Magistrate and the Magistrate did not pass order issuing process u/s 83, Code of Criminal Procedure and 82, Code of Criminal Procedure together in the case of Kapil Muni Karwaria and there was no reason to pass such order in respect of other accused-applicants. The learned Sessions Judge has not dealt with the said case law with regard to the issue of process u/s 82/83, Code of Criminal Procedure together by the Magistrate but the learned Sessions Judge has observed as follows:

Learned Counsel for the applicant urged that it is well-settled law that the process u/s 83, Code of Criminal Procedure can be issued only after the expiry of 30 days reckoned from the date of the order passed u/s 82, Code of Criminal Procedure and, therefore, the impugned order passed by the Court below is illegal. This contention has been repelled by the learned Counsel for the State. Proviso to Sub-section (1) of Section 83, Code of Criminal Procedure makes it clear that the order of attachment may be issued simultaneously with the issue of the proclamation u/s 82, Code of Criminal Procedure if the Court is satisfied "by affidavit or otherwise" that the person in relation to whom proclamation is to be issued is about to dispose of the whole or any part of the property, or is about to remove the whole or any part of his property from the local Jurisdiction of the Court. It cannot, therefore, be said that the learned Chief Judicial Magistrate had no power to issue the process simultaneously under Sections 82 and 83, Code of Criminal Procedure ''Undoubtedly this power of issuing the process simultaneously has to be exercised in most sparing and rare cases. The learned Magistrate felt satisfied after perusing the material on record that there exist circumstances to issue the processes simultaneously.

The satisfaction of the learned Magistrate cannot be interfered with by the revisional court. No illegality or irregularity has been committed by the learned Magistrate in passing the impugned order.

Before proceeding further with this order, it is necessary to indicate here that the learned Magistrate has not issued orders u/s 82/83, Code of Criminal Procedure simultaneously but he has specifically ordered in his order dated 16.8.1996 that process u/s 82/83, Code of Criminal Procedure shall be issued together against Udai Bhan Karwaria and Suraj Bhan Karwaria.

The provisions of Sections 82 and 83, Code of Criminal Procedure are necessary for perusal which are reproduced below:

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 30 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 place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or home stead 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, it 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) or 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.

Attachment of property of person absconding.--(1) The Court issuing a proclamation u/s 82, may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued:

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

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

it may order the attachment simultaneouly with the issue of the proclamation.

(2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made:

(a) by seizure; or

(b) by the appointment of a receiver, or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases:

(a) by taking possession; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

(6) The powers, duties and liabilities of a Receiver appointed under this section shall be the same as these of a Receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

A perusal of Section 83, Code of Criminal Procedure shows that it is open for the Magistrate to issue order of attachment of property of the person absconding but it may be open only when a proclamation has been issued against such person and only after issuing such proclamation, the process u/s 83, Code of Criminal Procedure may be issued for which specific reasons have to be recorded by the Magistrate for doing so, otherwise he has to follow the provisions of Section 82, Code of Criminal Procedure which provides that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, the Court may issue a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of such proclamation.

In the matter of Devendra Singh Negi alias Debu (supra), this Court has held as under:

The procedure laid down u/s 83 has to be followed strictly, jurisdiction to pass an attachment order cannot be assumed unless a proclamation u/s 82 of the Code has been issued. The normal rule is that the Magistrate has to wait until the expiry of 30 days to enable the accused to appear in terms of the proclamation. The words "at any time after the issue of proclamation" are not to be interpreted in isolation. The key for gathering the intention of the law-makers is to be found in Section 82 of the Code. Sections 82 and 83 of the Code do not spell out dichotomoos procedures, they are to be read in harmony. Thus except in cases covered by the proviso to Section 83(1), the attachment order has to maintain a distance of not less than 30 days from the date of the publication, u/s 82. These 30 days are to be computed from the date of the publication of the proclamation and the revisions in this respect are mandatory. See Gurappa Gugal and Others Vs. State of Mysore, . The words ''at any time'' in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence an order of attachment may be made without waiting for 30 days to expire. Even in such a case, the Magistrate has to record his reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso have come into existence. If Section 83(1) is interpreted to mean that it confers arbitrary powers on the Magistrate to order an attachment at their sweet-will or in a whimsical manner Section 83(1) of the Code might have to be struck down as violative of Articles 11 and 21 of the Constitution. In the case of Maneka Gandhi v. Union of India AIR 1978 SC 591, it was held that equality and arbitrariness are sworn enemies. In para 56, the Supreme Court observed:

The principle of reasonableness, which legally as well as philosophically is an essential "element of equality or non-arbitrariness pervades Article 14 like a preceding omnipresence...

In view of the above facts and circumstances, this Court has no hesitation to observe that the learned Sessions Judge has not exercised his jurisdiction properly conferred on him u/s 397/399, Code of Criminal Procedure and the purpose of circulating the judgment of this Court in the case of Devendra Singh Negi alias Debu (supra) to all Magistrates to follow the same has been defeated and, as such, it is a fit case for interference by this Court while exercising the jurisdiction u/s 482, Code of Criminal Procedure.

Further in Devendra Singh Negi''s case (supra), it has been laid down that the words "has absconded or is concealing himself so that such warrant cannot be executed" in Section 82 of the Code are significant. Every person who is not immediately available cannot be characterised as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions of Section 82 are mandatory and are to be construed strictly. Section 82 requires that the court must, in the first instance, issue a warrant and it must put down its reasons for believing that the accused is absconding or concealing himself.

Thus in every case where the warrant is not executed, resort cannot be had to Section 82 and it may be necessary to examine the officer concerned who had gone to execute the warrant and to the measures adopted by him to serve the same.

In the instant matter, the first information report was lodged on 13th August, 1996. Application for issuing process u/s 82/83, Code of Criminal Procedure was moved by the concerned police on next day, i.e.. 14th August, 1996. The non-bailable warrants were issued on the same day, i.e., 14th August, 1996. The next day 15th August, 1996 was a holiday and on 16th August, 1996, the Court issued the process u/s 82, Code of Criminal Procedure which is not in accordance with the terms laid down in Devendra Singh Negi''s case (supra) and in these facts and circumstances of the case, it could not be said that the applicants were absconder or were concealing themselves within the meaning of Section 82, Code of Criminal Procedure.

In the result, the petitions succeed and are allowed. The orders of the learned Sessions Judge dated 17.8.1996 and that of the Chief Judicial Magistrate dated 16.8.1996 are hereby quashed. It is further ordered that in case the property of the applicants has been attached, the same shall be released forthwith. It will, however, be open for the learned Magistrate to pass fresh orders regarding proclamation u/s 82 and attachment u/s 83, Code of Criminal Procedure in accordance with law, if the same is so required to be passed.