Tuesday, 16 May 2017

Enquiry under Section 202 of Cr.P.C mandatory even after Magistrate has taken cognizance.

Section 202 in The Code Of Criminal Procedure, 1973


202. Postponement of issue of process.


(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
Punjab-Haryana High Court
S.K. Bhowmik vs S.K. Arora And Anr. on 19 September, 2007
Author: R Singh
Bench: R Singh
JUDGMENT Ranjit Singh, J.

1. Invoking the amended provisions of Section 202 Cr.P.C., this petition for quashing the complaint and summoning order is filed by the petitioner with the submission that it is obligatory upon the Magistrate to enquire into the case before summoning an accused residing beyond his jurisdiction. Noticing the contentions raised on behalf of the petitioner that no enquiry, as envisaged under Section 202 Cr.P.C., was held before summoning the petitioner, notice of motion in this case was issued.

2. During the course of hearing, submissions are made by the counsel representing the parties. There does not appear to be much differences on the basic issue arising for consideration due to this amendment incorporated in Section 202 Cr.P.C. Mostly concerned with the debate on the legal issue so raised, the counsel did not make any submission before the court if the impugned order is revisable or the fact that the enquiry in this case was held by the Magistrate before summoning the petitioner or not. There was otherwise a consensus between the counsel appearing for the petitioner and contesting respondent that enquiry would now be mandatory in a case where an accused person is found to be residing beyond the jurisdiction of a Magistrate dealing with the case. There was some debate about the nature of this enquiry. There may not have been any requirement to go into the scope of the amendment introduced and the effect thereof in view of the consensus between the counsel, yet it may be appropriate to go into this aspect as the issue was indeed debated before the court.

3. To appreciate the submissions made, it would be essential to have a peep into the history of this provision. Section 202 Cr.P.C. makes a provision for postponement of an issue on process and has undergone modifications from time to time. Before its amendment, which came into force on 23.6.2006, Section 202 Cr.P.C. was a substantial reproduction of old Section 202 with certain modifications. Under the old Section, the Magistrate was required to record reasons in writing if he wanted to postpone the issue of process, which requirement, was done away with on the basis of recommendation made by the Law Commission. While recommending the deletion of this requirement, the Law Commission felt that no real purpose would be served by any expression of judicial opinion at that stage. Accordingly, words "for reason to be recorded in writing" occurring in Sub-section (1) of Section 202 were deleted. Originally, this section permitted a Magistrate to direct an enquiry or investigation by any Magistrate subordinate to him when he received any complaint. This again was deleted on the recommendation of the Law Commission, which observed that case was ultimately to be decided by the Magistrate himself and if the evidence is to be finally weighed by a particular Magistrate, it is proper that it should be heard by the same Magistrate. The division of responsibility, which was implied in this section, was considered wholly undesirable. Another change, which had come in this section, is the replacement of words "a scrutiny, a truth or falsehood of the complaint" as existing in the old sub-section with the words "deciding whether or not there is sufficient ground for proceeding". It was felt that the former words, noted here-in-before, did not represent the real purpose of preliminary enquiry. Truth or falsehood of a complaint is not open to be decided at the stage of summoning an accused. It was also felt that real purpose of enquiry is to ascertain whether the grounds exist for proceeding or not. Even Clause (a) in the proviso to Sub-section (1) was also a newly added provision. Sub-section (1) of Section 202 Cr.P.C. before recent amendment reads as under:

202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

4. The recent amendment in the year 2006 now makes the sub-section read as under:

202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

5. The words introduced by amendment as highlighted are:

and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction.

6. It would be noticeable that this amendment has not brought in any change so far as the nature of enquiry, required to be held under the section is concerned. It can further be noticed that holding of enquiry seems to have been made obligatory in a case where accused person is residing at a place beyond the area in which the Magistrate exercises jurisdiction thus seems to be the only change introduced by way of this amendment. It may be noticeable that prior to this amendment, holding of enquiry before issuing a process, was in the discretion of a Magistrate, which would continue to be so unless an accused person is the one who resides beyond the territorial jurisdiction exercised by the Magistrate. In Boya Lakshmanna v. Boyachinna Narasappa and Anr. 1976 Cri.L.J.127, it was held that it is optional for the Magistrate to hold enquiry and he can issue process direct as well. Ofcourse a Magistrate is not required to issue process against an accused as a matter of course and can hold an enquiry, if after perusing the statement of the complainant and the witnesses, he is not satisfied that a case for summoning is made out and wishes to further enquire into the matter. He would then follow the procedure indicated in Section 202(2) Cr.P.C. The statement of the complainant and the witness, referred to above, would have come before him under Section 200 Cr.P.C. This option of issuing process direct, which was available or is available with the Magistrate in other cases, would no more be available in cases where this amendment would be applicable. The purpose behind this amendment can well be noticed from the draft accompanying the amendment. This is as follows:

Clause 19.-False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend Sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.

7. The words "if he thinks fit" occurring before postpone the issue of process give clear indication about the option before a Magistrate to issue process or postpone the issue of the same in his discretion without holding an enquiry. This discretion now would not be available with the Magistrate in cases where amendment is made applicable. In short, the Magistrate would now be under obligation to enquire into a case either himself or direct investigation to find out whether or not there was sufficient ground for proceeding against an accused where he resides at a place beyond his area of jurisdiction. This is the only change introduced in the provision. The nature of enquiry envisaged under this section ofcourse has not undergone any change. It has been held that the nature of enquiry would vary with the circumstances of each case and the enquiry as contemplated certainly is such which should not be exhaustive. In Kewal Krishan v. Suraj Bhan and Anr. , the Hon'ble Supreme Court observed:

All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the stage of framing charges. Even at the state of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.

8. It was further observed that to ascertain whether or not the evidence so collected would disclose sufficient grounds for proceeding is lower than the one to be adopted at the stage of framing charges. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. , it is observed as under:

The scope of the inquiry under Section 202 is extremely limited-only to the ascertainment of the truth or falsehood of the allegations made in the complaint-(i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.

9. It can, thus, be said that degree of formality of the proceedings and the width and depth of the enquiry are entirely in the discretion of the Magistrate. It was also held that this provision is enabling and not obligatory. Though it was observed that it is not necessary that a Magistrate should hold an enquiry under this section in every case and it is only when he "thinks fit" that he may do so, but it was viewed that it would be advisable that an enquiry be held where the complainant is not speaking from his own knowledge. Even before amendment, there were some cases where such enquiry was held obligatory. Under Section 10 of the Child Marriage Restraint Act of 1929, such enquiry is obligatory and the failure to do was held to vitiate the whole trial. In this regard, reference may be made to State of Gujarat v. Patel Jivraj Khimji and Ors. 1966 Gujarat Law Reporter 935. This may be sufficient to appreciate the parameters in regard to the requirement of an enquiry now made obligatory in cases where an accused resides beyond the jurisdiction of a Magistrate. It would, thus, be proper to hold that in a case of person residing beyond jurisdiction of a Magistrate, if the process is issued without holding enquiry, it may vitiate the whole trial.

10. Since this effect of the amendment was not seriously disputed by the counsel appearing for the contesting respondent, I do not consider the need to go into the significance of word "may" or "shall" as argued by Mr. R.S. Cheema, learned Senior counsel appearing for the petitioner. To be fair to him, he has urged that the use of word "may" and "shall" in the same provision would cover two different situations and this provision is discretionary in one situation and mandatory in another. This would not appear to be in much dispute. Mr. Cheema appears to be justified in submitting that use of expression "may" conferring discretion upon the Magistrate with respect to one facts situation and that of "shall" in connection with another situation would give an indication of the fact that legislature had intended to make this provision mandatory in nature. The notice on the clause of amendment, as referred to above, and the use of word "shall" in the amended provision, in my view, does not leave much scope of debate in regard to the nature of this amendment introduced, making it to be obligatory. In regard to the implication of word "shall", Mr. Cheema has referred to Rubber House v. Excellsior Needle Industries Pvt. Ltd. . As per this, the word "shall" in its ordinary import is said to be obligatory. In Raza Buland Sugar Co. Ltd. Rampur v. Municipal Board, Rampur , the Hon'ble Supreme Court held that whether use of word is mandatory or merely directory cannot be resolved by laying down any general rule and would depend upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. In State of U.P. v. Babu Ram Upadhya , it is held that when a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.

11. Viewed in this background, it would be safe to say that the manner in which this amendment has been introduced and the wording thereof, when read in the light of objects behind the same, would make it clear that the legislature intended this provision to be made as obligatory/mandatory in nature. Thus, it would be proper to say that holding of an enquiry and the other options available to the Magistrate in this regard under Section 202 Cr.P.C. would be obligatory where it is found that person is residing beyond his jurisdiction. In this case, the present petitioner is not residing within the jurisdiction exercised by Judicial Magistrate Ist Class, Faridabad. Thus, it was obligatory for the Magistrate to hold enquiry envisaged under Section 202 Cr.P.C. before issuing process.

12. To ascertain if any enquiry was held or not, a mention to the facts, in brief, would be essential. Petitioner is a Managing Director of M/s Haldia Petrochemicals Limited with the address as 1Auckland Place, Kolkata. Respondent No. 1 has filed a complaint dated 11.5.2004 (Annexure P-1), against him before Judicial Magistrate Ist Class, Faridabad under Sections 323/452/504/506 IPC, which has led to his summoning vide order dated 14.10.2006 (Annexure P-2). The petitioner is a Managing Director of M/s Haldia Petrochemicals Limited ("HPL" for short) and is working with this concern since 10.8.2001. He was appointed as Chief Executive on 30.4.2002 and has been inducted in the Board of Directors w.e.f. 29.3.2005. HPL has appointed various agents across the country to sell its products. Such agents are to ensure payment to the HPL against the sale of the products to the customers. One IPF Vikram India Ltd. Panchkula, Haryana was appointed as an agent during the year 2000. During the year 2001-2002, IPF supplied certain products of HPL to another company named Himachal Filament Pvt. Ltd. Sirmour (Himachal Pradesh) ("HFPL" for short). HFPL had issued a cheque amounting to Rs. 37,08,115/-through its agent to HPL. This cheque was dishonoured. HPL issued power of attorney in favour of IPF to recover this price of goods supplied by HPFL as an agent of HPL to HFPL. An application was also given by IPF to the Inspector General of Police, Chandigarh for recovery of dues from HFPL. On 5.8.2002, HFPL was made to pay a sum of Rs. 31.83 lacs before Lok Adalat, U.T. Chandigarh and had agreed to pay a sum of Rs. two lacs on monthly basis. HFPL did not honour this order passed by Lok Adalat leading to registration of an FIR on 15.11.2002 against respondent No. 1. He was accordingly arrested. Respondent No. 1 filed a civil suit for defamation at Faridabad against the petitioner and one Shri Siddharth Anand of IPF. This suit is stated to have been dismissed in default on 6.2.2006 and application for its restoration is pending. It is disclosed that by suppressing these material facts, respondent No. 1 filed the present complaint in the court of Judicial Magistrate, Faridabad on 11.5.2004 alleging that the petitioner alongwith two unknown persons had come to his office for discussion in connection with the suit and had abused him, caught him from the collar and gave fist blows. Respondent No. 1 appeared as CW-1 in support of the complaint and further produced one Akash Wadhawan as CW-2. On the basis of this evidence, the Magistrate has summoned the petitioner vide its order dated 14.10.2006, which is under challenge in the present petition.

13. The primary submission made by the counsel for the petitioner is that petitioner is a resident of Kolkata and is, thus, residing beyond the area in which Judicial Magistrate at Faridabad exercises jurisdiction and hence could have been summoned only by holding an enquiry into the case as envisaged under Section 202 Cr.P.C. As already noticed above, the holding of enquiry by a Magistrate or in other manners of holding enquiry/investigation as he thinks fit, would be obligatory and mandatory in the present case since the petitioner is residing in an area beyond the jurisdiction of the Magistrate concerned. That being so, it is required to be seen if the process is issued to the petitioner by holding an enquiry as required under Section 202 Cr.P.C. or not.

14. While making submission, Mr. Cheema points out that the complaint in this case was made on 11.5.2004. The evidence of two witnesses, one of which is complainant, was recorded on 27.10.2004 and the order summoning the petitioner is dated 14.10.2006. From this, learned Counsel would contend that Magistrate obviously was not conscious about the amendment made in Section 202 Cr.P.C. As already noted, this amendment has come into force on 23.6.2006, much after filing of the complaint and recording of evidence, but before issuing of the process. It is urged that process in this case has been issued by the Magistrate without taking into consideration the amendment in Section 202 Cr.P.C. It is urged that if the Magistrate was conscious of this amendment at the time of issuing process, he would have done so after holding enquiry which is now obligatory. It is stated that the Magistrate has issued process in this case without holding enquiry envisaged under Section 202 Cr.P.C. It is reasonable to say that Magistrate has not taken note of this amendment if he had issued process without holding an enquiry. If one was to find that this process is issued after holding enquiry, then perhaps it cannot be urged that the process is issued without taking into consideration the amendment introduced in the section. As already noted, the process in this case is issued after recording the evidence of two witnesses. This according to Mr. Cheema is in terms of Section 200 Cr.P.C. This Section (200 Cr.P.C.) provides for examination of the complainants and the witnesses present, if any, by a Magistrate while taking cognizance. Section 202 Cr.P.C. is contained in Chapter XV, which deals with the provisions relating to the steps which a Magistrate has to take while and after taking cognizance of any offence on a complaint. Once the Magistrate takes cognizance of offence, then he has to follow the procedure prescribed under Section 202(1) Cr.P.C. Examination of the complainant and witnesses, if any, under Section 200 Cr.P.C. is done while or for taking cognizance. The Magistrate can then either hold enquiry or direct investigation to be made either by police officer or any other person. This is to help the Magistrate to decide if there is sufficient ground for him to proceed further. This seems to be emerging from the wording of Section 202 Cr.P.C. Thus, after taking cognizance, the stage of issuing a process would come, which under Section 202 Cr.P.C. can be postponed by the Magistrate if he thinks fit to hold an enquiry or direct an investigation to see if there are sufficient grounds for proceeding or not. This enquiry or investigation now is made obligatory/mandatory in a case where accused is residing at a place beyond the area in which he exercises jurisdiction. In other words, it would mean that such enquiry/investigation is mandatory even when he has taken cognizance after examining the complainant or his witnesses under Section 200 Cr.P.C. The examination of the complainant and witnesses as envisaged under Section 200 Cr.P.C. can not be equated or be a substitute for the enquiry/investigation required under Section 202 Cr.P.C. Prior to amendment, it was in the discretion of the Magistrate to hold enquiry or have the case investigated under Section 202 Cr.P.C., which now is made mandatory in the case of person residing at a place beyond the area of his jurisdiction. The nature of this enquiry or investigation continues to be the same as was prior to coming into force of the amendment in question.

15. The order summoning the petitioner is annexed on record. Process is issued without holding enquiry or getting the complaint investigated in any manner. Reference has already been made in regard to the nature of enquiry, required to be held under this section to see if prima facie case is made out or not. In Nagawwa's case (supra), the Hon'ble Supreme Court has observed that the enquiry envisaged under this section is extremely limited. This is for the limited purpose to find out whether a prima-facie case for issue of process is made out. As already noticed in this case, this is required to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Similarly in Kewal Krishan's case (supra), the Hon'ble Supreme Court observed that the Magistrate at this stage is not to weigh the evidence meticulously as if he was a trial court. Rather in this case the Hon'ble Supreme Court has observed the limits of Magistrate's discretion and infirmity, if he meticulously appreciates the evidence. The Hon'ble Supreme Court declined to interfere by saying that such would only be an irregularity and not illegality leading to any miscarriage of justice. Thus, where the Magistrate was to meticulously appreciate the evidence, it may lead to lapse on his part in overstepping the discretion available to him under this section. In other words, it can be stated that the Magistrate at the time of issuing process is not to weigh the evidence as already noted, width and depth of this enquiry are entirely in the discretion of the Magistrate, though such an enquiry may vary with the circumstances of each case, but it is not required to be exhaustive (see Kewal Krishan's case, supra).

16. Process is issued in this case only on the basis of examination of the complainant and CW-2. This is obviously under Section 200 Cr.P.C. It was done much prior to the date of amendment of Section 202 Cr.P.C. It is seen that no enquiry/investigation is held as is required under Section 202 Cr.P.C. The quashing of the summoning order is sought mainly on the ground that the Magistrate has not held enquiry, which is obligatory. If the Magistrate had considered the amended Section 202 Cr.P.C., he was bound to hold enquiry/investigation thereunder before issuing process, though this Court would not have any power to interfere or to substitute its own discretion over that of a Magistrate. Where Magistrate is seen to have exercised his discretion judicially, the same may not call for any interference. The defence of the accused is not the factor, which is required to be taken into consideration to call for any interference in the order. Even the irregularity in the procedure under this section, which does not result in miscarriage of justice, may not call for any interference by a court. Whether a prima- facie case is made out from the evidence recorded or not, would be a matter within the discretion of the Magistrate. In fact some inadequacy of the enquiry will also not call for any interference. But enquiry or investigation in case where the accused resides beyond his jurisdiction cannot now be wished away being mandatory. In this case, no enquiry or investigation have been held and process, as such, is issued in violation of the mandatory requirement of Section 202 Cr.P.C. and cannot be sustained. Thus, impugned order is accordingly set aside and case is sent back to the Magistrate to examine fresh by adhering to the requirement of Section 202 Cr.P.C.

17. The argument of Mr. Cheema based on the ground that it would sound improbable for a person to come and visit the office of the petitioner to behave in a manner as alleged, need not be gone into as the case is going back to the Magistrate to hold enquiry/investigation etc. The complaint otherwise can not be quashed on the ground that summoning was done without holding enquiry or investigation as envisaged under Section 202 Cr.P.C. It may not otherwise be open to judge the correctness or otherwise of the allegations made in the complaint in a petition under Section 482 Cr.P.C. Defence plea can also not be considered while exercising revisional jurisdiction or inherent powers. See S. Nihal Singh and Ors. v. Arjan Das, New Delhi 1983 Cri.L.J.777.


18. As a result, the present petition is partly accepted. The impugned order summoning the petitioner is set-aside. The case would go back to the Magistrate for deciding the case for issuing process afresh by following the mandatory provisions of law under Section 202 Cr.P.C.

Thursday, 16 February 2017

Quashing Petition under sec.482 of Cr.P.C in Proclaimed Offender Cases under sec.82/83 of Cr.P.C

The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court 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 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. 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 Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.

So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.
Delhi High Court
Rohit Kumar @ Raju S/O Late Sh. Om … vs State Of Nct Delhi
Bench: V Gupta
JUDGMENT V.B. Gupta, J.
Petitioner herein had earlier filed Crl.M.C.No.2952/2007 under Section 482 Cr.P.C. seeking quashing of order dated 31st May, 2007 and 25th July, 2007 passed by Sh. Rakesh Tewari, Addl.Sessions Judge in Criminal Complaint case, whereby he had issued non-bailable warrants and process under Section 82 and 83 Cr.P.C. against the petitioner.
In that petition, it was also prayed that Addl.Sessions Judge be directed to bail out the petitioner in accordance with law and petitioner undertook that he will appear before the court of Addl.Sessions Judge, if directed and co-operate with the prosecution of the case on the next date of hearing, that is, 19th September, 2007.
On that petition, this Court on 17th September, 2007passed the following order:
Keeping in view the facts and circumstances of the case, the execution of process under Section 82/83 Cr.P.C. issued against the petitioner is stayed till 19th September, 2007 provided the petitioner deposit a sum of Rs. 2,500/- as adjournment costs with the trial court by that date and appear before the trial court on that day.

On 19th September, 2007 as directed by this Court, the petitioner appeared before the trial court who passed the following order, relevant portion of which reads as under:
Accused has appeared along with the counsel and has moved the bail application and annexed the copy of the order of the Hon’ble High Court of Delhi dated 17.09.07 in which he sought the stay of the order dated 31.05.07 and 25.07.07 whereby the process under Section. 82/83 Cr.P.C. was issued against the accused. The time requisite for process under Section. 82 Cr.P.C. had already expired on 29.08.07 when the process server returned the execution reports of the said process. Today the case was fixed for recording of the statement of the process server so that the accused could have been declared as a Proclaimed Offender and the case should have been fixed for recording the evidence under Section. 299 Cr.P.C. Although on 17.09.07 there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order and directed the accused to deposit the amount as cost as mentioned in the order which he has deposited with this Court.

Thereafter, trial court heard arguments on bail application and rejected the bail application of the petitioner and took him into custody.
Now, the present bail application has been filed on behalf of the petitioner and notice of the same was issued to State, as well as to respondent No. 2 and the trial court record was also summoned.
It has been contended by learned Counsel for the petitioner that, in terms of the order dated 17th September, 2007, petitioner appeared before the trial court and deposited the costs of Rs. 2,500/-, but the trial court rejected the bail application, making certain observations as mentioned above. The trial court had no business to make such comments and it deliberately disregarded the order, dated 17th September, 2007 and rejected the bail application of the petitioner.
With regard to the above observation made by the trial court, prima facie, it appears that the trial court was not at ease with the order dated 17th September, 2007 passed by this Court and the observation made by the trial court are uncalled for, as it cast aspertions on the functioning of this Court and the same have also been deprecated by the learned Counsel for the respondents.
Brief facts of the case are that respondent No. 2, BSES Rajdhani Power Ltd. had filed a complaint under Section 151 read with Section 154 of the Electricity Act, 2003 against one Raju (user), the present petitioner on 13th April, 2007. After registration of the case, the Addl.Sessions Judge listed the matter on 7th May, 2007 for pre-summoning evidence. On that date, pre-summoning evidence was filed by way of affidavits and the same was closed and the trial court passed the following order:
From the perusal of the record and the statements of the said witnesses, I am satisfied that a prima facie case is made out against the accused under Section 135 of the Electricity Act, 2003. Let the accused be summoned for the said offence on filing of PF and RC and process be given dusty and accused be served through prescribed courier service also for 31.5.07.

Sd/-

Rakesh Tewari ASJ, Delhi/07.05.2007

On 31st May, 2007, the trial court passed the following order:
Present: Deemed APP for the complainant The tenant at the premises in question informed that accused is residing at Daryaganj, Delhi.

Issue NBW against the accused through SHO, P.S. Sangam Vihar, New Delhi for 25.07.07.

Sd/-

Rakesh Tewari ASJ, Delhi/31.05.2007

According to these proceedings, prima facie, it is apparent that the petitioner was never served with any summon nor he was avoiding to receive the summon. Be that as it may, on 25th July, 2007, the trial court passed the following order:
Present:- Deemed APP for the complainant company The accused being the landlord of the premises in question seldom visits the premises as per report on NBW.

Issue process under Section 82/83 Cr.P.C. against the accused through SHO, PS. Sangam Vihar, New Delhi on the last known address for 29.08.07.

Sd/-

Rakesh Tewari ASJ, Delhi/25.07.2007

On 29th August, 2007, the following order was passed:
Present: Deemed APP for the complainant company Process under Section 82/83 Cr.P.C. received back against the accused. Let the Process Server be summoned for recording of his statement on 19.09.07.

Sd/-

Rakesh Tewari ASJ, Delhi/29.08.2007

In the meanwhile, on 17th September, 2007, this Court has passed the order in Crl.M.C.No.2952/2007 as mentioned above.
This observation made by the trial court that:- ‘Although, on 17th September, 2007, there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order…’ goes on to show that process under Section 82/83 Cr.P.C. was duly executed, but that was not the case in reality.
It appears that the learned Addl.Sessions Judge is not aware with the basics of Code of Criminal Procedure, as it is apparent from record that process under Sections 82/83 Cr.P.C. was never executed in accordance with law. For his knowledge and reference, Sections 82 and 83 of Cr.P.C are reproduced as under:
Section 82. Proclamation for person absconding.-(1) 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 specific 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 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 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, 459 or 460 of the Indian Penal Code, 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).

Section 83. Attachment of property of person absconding.-(1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment or 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 simultaneously 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 payment of rent on delivery of 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 those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:
(i) issuing of a proclamation (Section 82)

(ii) attachment or sale of property (Section 83)

The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation.
The expression ‘reason to believe’ occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had ‘absconded’ or ‘concealed himself.’
The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory.
Here the question to be seen is as to whether proclamation under Section 82 Cr.P.C. has been effected in accordance with law or not.
As per proclamation under Section 82 Cr.P.C. placed on record, the same was issued on 27th July, 2007 directing the petitioner to appear before the court on 29th August, 2007. As per service report on the back of this proclamation, a copy of this proclamation was pasted on the house and another was pasted on the main door of the court, on 6th August, 2007.
So, admittedly, as the proclamation has been effected on 6th August, 2007 and petitioner was given time to appear in the court on 29th August, 2007, the petitioner was granted less than thirty days from the date of publishing of the proclamation, to appear in the court. As per Section 82(1) Cr.P.C. the court was required to give time ‘not less than thirty days from the date of publishing such proclamation’.
The proclamation issued under Section 82 Cr.P.C. requires appearance of the person, against whom warrant has been issued, at a specified time, at a specified place. The date fixed should be not less than thirty days from the date of publication of the proclamation. If that be so, simultaneous attachment of property cannot be effected.
Since the proclamation under Section 82 Cr.P.C. had been effected only on 6th August, 2007, so the petitioner, could not be asked to appear before the court on 29th August, 2007, as specified time of not less than thirty days was not given to him.
Now, coming to proclamation issued under Section 83 Cr.P.C, it was issued on 27th July, 2007 directing the petitioner to appear in the court on 29th August, 2007. As per service report on the back of this proclamation interestingly, it was effected only on 29th August, 2007, that is, the day on which the petitioner was supposed to appear in the court.
The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court 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 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. 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 Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.
So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.
When on 29th August, 2007, no valid proclamation under Section 82 and 83 Cr.P.C. has been effected, then where was the question for the trial court for recording the statement of the process server so, that the petitioner could have been declared as a proclaimed offender and case should have been fixed for recording the evidence under Section 299 Cr.P.C. It appears that the trial court was in undue haste and was bent upon to declare the petitioner as proclaimed offender, without following the due process of law.
So, the above mentioned orders passed by Sh. R.K.Tewari, Additional Session Judge goes on to show that he lacks even elementary knowledge about the Code of Criminal Procedure and also does not know as to in which cases and in what manner, proclamation under Section 82/83 Cr.P.C. are to be issued. In spite of the fact that Sh. R.K.Tewari has no basic knowledge of the criminal law, he has chosen to comment on the order passed by this Court, which amounts to judicial indiscipline.
It also appears that, this judicial officer is not aware of the fact or does not have even that knowledge, that the sub-ordinate courts are, by way of constitutional provisions, bound by the decision of local High Courts as is every court in the country including the High Courts, are bound by the decision of the Supreme Court by virtue of provisions of Article 141 of the Constitution of India and on this point, judgment of this Court on its own motion v. Central Bureau of Investigation 2004 (72) DRJ 629 may be relevant and para 28 of it is reproduced as under:
There is no gain saying the fact that the disobedience or disregard of the law laid down by the High Court by the subordinate courts is not only against the very concept of rule of law but also verges on the contempt of court as subordinate courts are, by way of constitutional provision, bound by the decision of the local High Court as is every court of the country including the High Courts, bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the Constitution. If the subordinate courts start ignoring the law laid down by their High Courts and start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure of the country, rule of law and concept of liberty of citizens will be the first casualty.
The observations made by the trial court in its order dated 19th September, 2007 are per se disobedience of the order passed by this Court and verges on the contempt of court. Since Sh. R.K. Tewari, Additional Session Judge does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances, it would be appropriate, if Sh.Rakesh Tewari, Addl.Sessions Judge, undergoes refresher course at Delhi Judicial Academy in criminal law and procedure, at the earliest and the District and Sessions Judge would see to it that name of this officer is recommended in the first available such course and this officer should undergo training in Dehli Judicial Academy, under the supervision of the Director, Delhi Judicial Academy at least for a period of three months and, Director, Delhi Judicial Academy, should submit to this Court, performance report, with regard to this judicial officer.
Registrar General of this Court is directed to send the copy of this Judgment to all the Judicial Officers of Delhi for guidance and one copy be sent to the Inspecting Judge as well as one copy of Judgment be placed in the personal file of this Judicial Officer.

Trial Court record be sent back forthwith. Ordered accordingly.

Anticipatory bail for proclaimed offender

 Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.


The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”
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                                           REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                 1 CRIMINAL APPEAL NO.   2049        OF 2013

               (Arising out of S.L.P. (Crl.) No. 4102 of 2013)

State of Madhya Pradesh                               .... Appellant(s)

            Versus

Pradeep Sharma                                             ....
Respondent(s)

                             WITH


                2 CRIMINAL APPEAL No.   2050         OF 2013

               (Arising out of S.L.P. (Crl.) No. 4406 of 2013)

                               J U D G M E N T
P.Sathasivam, CJI.

1)    Leave granted.

2)    These appeals are  filed  against  the  orders  dated  10.01.2013  and
17.01.2013 passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively whereby the High Court granted anticipatory bail to the respondents herein.

3)    Brief facts:

a)    The  case  of  the  prosecution  is  that  Rajesh  Singh  Thakur  (the
deceased), resident of village Gopalpur, Tehsil Chaurai, District Chhindwara, Madhya Pradesh and Pradeep Sharma (respondent herein), resident of the same village, were having enmity with each other on account of election to the post of Sarpanch.
b) On 10.09.2011, Pradeep Sharma (respondent herein), in order to get rid of Rajesh Singh Thakur (the deceased), conspired along with other accused persons and managed to call him to the Pawar Tea House, Chhindwara on the pretext of setting up of a tower in a field where they offered him poisoned milk rabri (sweet dish).
c) After consuming the same, when he left the place to meet his sister, his condition started getting deteriorated because of vomiting and diarrhea. Immediately, the father of the deceased took him to the District Hospital, Chhindwara wherefrom he was referred to the Government Hospital, Chhindwara.
d) Since there was no improvement in his condition, on 11.09.2011, he was shifted to the Care Hospital, Nagpur where he took his last breath. The hospital certified the cause of death to be poisoning. On the very same day, after sending the information to the Police Station, Sitabardi, Nagpur, the body was sent for the post mortem.
e) Inder Singh Thakur-father of the deceased submitted a written complaint to the Police Station Kotwali, Chhindwara on 13.09.2011 suspecting the role of the respondents herein. After investigation, a First Information Report (in short ‘the FIR’) being No. 1034/2011 dated 18.10.2011 was registered under Sections 302 read with 34 of the Indian Penal Code, 1860 (in short ‘the IPC’).
f) On 01.08.2012, Pradeep Sharma (respondent herein) moved an application for anticipatory bail by filing Misc. Criminal Case No. 7093 of 2012 before the High Court which got rejected vide order dated 01.08.2012 on the ground that custodial interrogation is necessary in the case.
g) On 26.08.2012, a charge sheet was filed in the court of Chief Judicial Magistrate, Chhindwara against Sanjay Namdev, Rahul Borkar, Ravi Paradkar and Vijay @ Monu Brahambhatt whereas the investigation in respect of Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi (respondents herein), absconding accused, continued since the very date of the incident.
h) On 21.11.2012, arrest warrants were issued against Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi but the same were returned to the Court without service. Since the accused persons were not traceable, on 29.11.2012, a proclamation under Section 82 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) was issued against them for their appearance to answer the complaint.
i) Instead of appealing the order dated 01.08.2012, Pradeep Sharma (respondent herein) filed another application for anticipatory bail being Misc. Criminal Case No. 9996 of 2012 before the High Court. Vide order dated 10.01.2013, the High Court granted anticipatory bail to Pradeep Sharma (respondent herein). Similarly, another accused-Gudda @ Naresh Raghuvanshi was granted anticipatory bail by the High Court vide order dated 17.01.2013 in Misc. Criminal Case No. 15283 of 2012.
j) Being aggrieved by the orders dated 10.01.2013 and 17.01.2013, State of Madhya Pradesh has filed the above appeals before this Court.
k) In the meantime, the respondents herein approached the Court of Chief Judicial Magistrate, Chhindwara for the grant of regular bail. Vide order dated 20.02.2013, the accused persons were enlarged on bail.

4) Heard Ms. Vibha Datta Makhija, learned senior counsel for the appellant-State and Mr. Niraj Sharma, learned counsel for the respondents.

5) The only question for consideration in these appeals is whether the High Court is justified in granting anticipatory bail under Section 438 of the Code to the respondents/accused when the investigation is pending, particularly, when both the accused had been absconding all along and not cooperating with the investigation.

6) Ms. Vibha Datta Makhija, learned senior counsel for the appellant- State, by drawing our attention to the charge sheet, submitted that the charges filed against the respondents/accused relate to Sections 302, 120B and 34 of the IPC which are all serious offences and also of the fact that both of them being absconders from the very date of the incident, the High Court is not justified in granting anticipatory bail that too without proper analysis and discussion.

7) On the other hand, Mr. Niraj Sharma, learned counsel for the respondents in both the appeals supported the order passed by the High Court and prayed for dismissal of the appeals filed by the State.

8) We have carefully perused the relevant materials and considered the rival contentions.

9) In order to answer the above question, it is desirable to refer Section 438 of the Code which reads as under:-
“438. 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.
Xxx xxx xxx”

10) The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.

11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303, this Court considered the scope of Section 438 of the Code as under:-
“16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.
The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”

12) Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:
“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.” It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. In the case on hand, a perusal of the materials i.e., confessional statements of Sanjay Namdev, Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of witnesses that were recorded and the report of the Department of Forensic Medicine & Toxicology Government Medical College & Hospital, Nagpur dated 21.03.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21.11.2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29.11.2012. The documents (Annexure-P13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondents/accused under Section 82 of the Code to answer the complaint on 29.12.2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating “facts and circumstances of the case”, granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120B read with Section 34 of IPC. In such serious offences, particularly, the respondents/accused being proclaimed offenders, we are unable to sustain the impugned orders of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.

13) In the light of what is stated above, the impugned orders of the High Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively are set aside. Consequently, the subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011 releasing the accused on bail after taking them into custody in compliance with the impugned order of the High Court is also set aside.

14) In view of the same, both the respondents/accused are directed to surrender before the court concerned within a period of two weeks failing which the trial Court is directed to take them into custody and send them to jail.

15) Both the appeals are allowed on the above terms.
………….…………………………CJI.
(P. SATHASIVAM) .………….……………………………J.
(RANJAN GOGOI) NEW DELHI;