Allahabad High Court
Pankaj Shukla vs State Of U.P. Thru. Prin. Secy. Home ... on 23 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:49957 Court No. - 30 Case :- APPLICATION U/S 482 No. - 5724 of 2023 Applicant :- Pankaj Shukla Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrett. Lko. And Others Counsel for Applicant :- Rajendra Kumar Gupta,Vineet Mishra,Virendra Kr. Singh Gautam Counsel for Opposite Party :- G.A. Connected with Case :- APPLICATION U/S 482 No. - 3953 of 2024 Applicant :- Pankaj Shukla Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And 3 Others Counsel for Applicant :- Rajendra Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Om Prakash Shukla,J.
(1) Both the above-captioned application under Section 482 of Cr.P.C. has been filed by the applicant, Pankaj Shukla. In Application U/S 482 No. 5724 of 2023, the applicant has sought to quash the order dated 17.10.2022 passed by the Additional Chief Judicial Magistrate-IV, Lucknow in Case Crime No. 178 of 2021, under Sections 323, 504, 506, 427, 452 I.P.C., Police Station Bazar Khala, district Lucknow, whereby non-bailable warrant has been issued against the applicant.
In Application No. U/S 482 of 3953 of 2024, the applicant seeks to quash the order dated 08.04.2024 issued in exercise of powers under Section 82/83 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") by the A.C.J.M.-IV, Lucknow in Case Crime No. 178 of 2021, under Sections 323, 504, 506, 427, 452 I.P.C., Police Station Bazar Khala, Lucknow.
Applicant, in both the aforesaid applications, also seeks to provide him protection from the opposite parties no. 3 and 4 so that he may take part of the aforesaid criminal case pending before A.C.J.M.-IV, Lucknow.
(2) These two applications filed by the applicant were clubbed together under the order of Co-ordinate Bench of this Court. Since both the applications arise out of Case Crime No. 178 of 2021 (supra) and involve common questions of fact, hence these are decided together by a common order.
(3) Heard Shri Rajendra Kumar Gupta, learned Counsel representing the applicant and Shri Arvind Kumar Tripathi, learned Additional Government Advocate representing the State.
(4) According to the applicant, he filed a Complaint Case, bearing No. 6062 of 2019 under Section 138 Negotiable of Instrument Act, against one Shiraz son of Shri Abdul Salam alias Chotte Miyan, in which he had engaged Shi Aryan Srivastava, Advocate to do paivi on his behalf. Opposite party no.3-Arti Gupta and opposite party no.4-Shivam Pandey are junior to Shri Aryan Srivastava. After sometime, his Counsel Shri Aryan Srivastava told him that opposite parties no.3 and 4 will do pairvi of the aforesaid case. It has been alleged by the applicant that opposite parties no. 3 and 4 took an affidavit from him to the effect that opposite party no.4-Shivam Pandey, Advocate will do pairvi in Complaint Case No. 6062 of 2019 and out of total amount, 20% of the amount received by the applicant on final decision of the said complaint case will be paid by him to opposite party no.4-Shivam Pandey and in this regard, a blank cheque, bearing No.093068 of Bank of India, Branch Kaiserbagh, district Lucknow has been provided to opposite party no.4 and this cheque would be used by opposite party no.4 only on final decision of the aforesaid complaint case.
(5) It has been alleged by the applicant that the aforesaid affidavit has not been provided to him, however, when he made request for it, the same was sent on his whatsApp at 11:02 p.m. on 23.02.2021 and thereafter, opposite party no. 4 had exerted pressure upon him by saying to give the blank cheque to him and in sequence thereof, on 27.08.2021, opposite party no.4 came to his shop and asked for blank cheque and when he denied it, opposite party no.4 abused him and threatened him that he will recover the money anyhow from him. It was also alleged by the applicant that on 27.08.2022, at 06.00 p.m., he went to the residence of Shri Aryan Srivastava, Advocate and told the entire incident to him and when he came out from his residence, opposite parties no. 3 and 4 met and started beating him. Thereafter, when he went to the police station Khala Bazar to report the incident, he saw the opposite parties no. 3 and 4 already present at the police station and after seeing him, the opposite parties no. 3 and 4 chased him, however, anyhow he escaped himself and went to Balrampur Hospital for treatment, wherein also opposite parties no. 3 and 4 along with their companions also came there and restrained his medical treatment. Therafter, the opposite party no.3 lodged F.I.R. against him by making fabricated and concocted allegations against him, which was registered as F.I.R. No. 174 of 2021, under Sections 323, 504, 506, 427 and 452 I.P.C., at Police Station Wazarkhala, district Lucknow. According to the applicant, the police had also lodged N.C.R. against the opposite parties no. 3 and 4 to protect himself from further proceedings.
(6) According to the applicant, he was summoned by the Court of A.C.J.M.-IV in the aforesaid F.I.R. No. 174 of 2021. In compliance thereof, he appeared/surrendered before the Court on 23.02.2022, however, opposite parties no. 3 and 4 and also their companions wearing black coat started to abuse him badly and also beaten him and also pinched him with niddle pen with sharp article. Thereafter, A.C.J.M.-IV granted interim bail to him and fixed the next date on 08.06.2022. Thereafter, the applicant went to Balrampur Hospital for his medical examination and also complained the chowki incharge for the incident, but even then no action was taken. Thereafter, as and when he went to the Court for appearing in the aforesaid F.I.R., the opposite parties no.3 and 4 and their companions beaten him, on account of which, he did not appear before the Court concerned. In these backgrounds, the trial Court has issued non-bailable warrant against him on 17.10.2022, which has been challenged in Application U/s 482 No. 5724 of 2023. During pendency of this application, the trial Court issued order dated 08.04.2024 in exercise of powers under Section 82/83 of the Code of Criminal Procedure against the applicant, which is challenged in Application U/s 482 No. 3953 of 2024.
(7) It is argued by the Counsel for the applicant that though the applicant went to appear before the trial Court as and when the date was fixed but due to opposite parties no.3 and 4, he could not appear before the trial Court and ultimately, a non-bailable warrant dated 17.10.2022 and thereafter the order for 82/83 Cr.P.C. dated 08.04.2024 was issued by the trial Court. According to the learned Counsel, applicant has also annexed photograph of quarrel in which he became wounded as annexure no.4 to Application U/s 482 No. 5724 of 2024.
(8) The Counsel for the applicant argues that opposite parties no. 3 and 4 are practicing lawyer in Civil Court, Lucknow and made cruelty with the applicant. According to the learned Counsel, opposite parties no. 3 and 4 forcefully restrained the applicant from participation in F.I.R. No. 174 of 2021, due to which the applicant could not appear before the Court of A.C.J.M.-IV, Lucknow before issuance of non-bailable warrant against him and before passing the order under Section 82/83 Cr.P.C. against him. According to the learned Counsel, the conduct of the applicant has also been reported by the applicant to the Bar Council of U.P. vide Complaint Case No. 249 of 2022 and the same is pending consideration before the Bar Council of U.P. Submission is that absence of the applicant before the Court concerned in F.I.R. No. 174 of 2021 is beyond the control of the applicant, however, applicant is ready and undertakes that he will appear before the Court concerned in F.I.R. No. 174 of 2021.
(9) Drawing our attention to the impugned orders, learned Counsel for the applicant has also submitted that before issuance of non-bailable warrant or issuance of order under Section 82/83 Cr.P.C., learned trial Court has not recorded the reasons to believe to issue the impugned orders and as such, impugned orders are liable to be set aside.
(10) Learned AGA, on the other hand, has opposed the prayer of the learned Counsel for the applicant and has submitted that as the applicant did not appear before the trial Court, as such, non-bailable warrant and the order under Section 82/83 Cr.P.C. has rightly been issued against the applicant.
(11) Having regard to the aforesaid submissions of the learned Counsel for the applicant and learned AGA, this court is to consider whether the steps for issuance of non-bailable warrant and steps for the process under Section 82 of the Cr.P.C. could be resorted to in the facts of the case and whether the process issued under Section 82 of the Cr.P.C. is in accordance with the scope of Section 82 (1) of the Cr.P.C.?
(12) To appreciate the controversy as raised at the bar, this Court deem it apt to go through Section 82 of the Cr.P.C., which reads as under :-
"82. Proclamation for person absconding - (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:--
(i) (a) it shall be publicly read in some conspicuous 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 (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]"
(13) 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 (Sec.82) (ii) attachment or sale of property (Sec.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. Warrant of attachment will be preceded by an order 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 or is avoiding the process of the court. 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. 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. 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.
(14) From perusal of the impugned orders, it reveals that no reason has been recorded in the impugned orders by the trial Court while issuing the order of non-bailable warrant and the order to issue process under Section 82 of the Cr.P.C. There is no averment or mention of the Magistrate having perused any martial, nor is there any consideration to any other material relating to the execution of the non-bailable warrant. The reasoning recorded clearly falls short of the requirements to pass an order which cannot be done only after having 'reasons to believe'. It is well established that 'reasons to believe' as contained in various statutes, both fiscal and penal, have been interpreted by the Hon'ble Supreme Court to hold that the 'reasons to believe' should be based upon the material as exists and should demonstrate application of mind, as the steps proposed to be taken are harsh and stringent in nature and have the effect of infringing the rights of the citizen guaranteed under Articles 21 and 300-A of the Constitution of India.
(15) The expression 'reasons to believe' has come for interpretation on various occasions before the Hon'ble Supreme Court wherein it was categorically held in the case of N. Nagendra Rao & Co vs State Of A.P. : (1994) 6 SCC 205 that expression 'reasons to believe' means formation of an opinion which may be subjective but it must be based on material on record. It cannot be arbitrary, capricious or whimsical. In the case of Dr. Partap Singh and another vs Director Of Enforcement, (1985) 3 SCC 72, it has been held that 'reasons to believe' is not synonymous with subjective satisfaction of the Officer. The belief must be held in good faith; it cannot be merely be a pretence. In the case of Dr. Jai Shanker vs State of Himachal Pradesh : (1973) 3 SCC 83, the Hon'ble Supreme Court has held that expression 'reasons to believe' mean a belief which a reasonable person would entertain on the facts before him.
(16) The reasons recorded in the impugned order clearly do not show any application of mind, or reference to any material before the Magistrate to demonstrate as to how the Magistrate formed 'reasons to believe' and thus on that ground alone, the order is liable to be set aside.
(17) In view of the aforesaid, both the applications under section 482 Cr.P.C. are partly allowed to the effect that the order dated 08.04.2024 for issuing processes under sections 82 and 83 Cr.P.C. against the applicant is hereby set aside.
(18) However, it is contended by learned counsel for the applicant that the applicant is ready to appear before the Trial Court. Applicant is allowed to appear before the trial Court on or before 09.08.2024 and during this period, execution of non-bailable warrants issued against him vide impugned order dated 17.10.2022 shall remain stayed. After appearance of the accused, the Magistrate shall proceed with the trial of the case in accordance with law.
(19) In case the applicant is feeling any threat for appearing before trial Court, he will move appropriate application before the authorities concerned by 31.07.2024. In case such an application is being moved by the applicant, this Court hope and trust that the authorities concerned will look into the matter and take appropriate decision, in accordance with law, expeditiously, within two days from the date of presentation of such application by the applicant.
(20) All pending miscellaneous applications, if any, in the above-captioned applications stands disposed of accordingly.
(Om Prakash Shukla, J.) Order Date :- 23.7.2024 Ajit