Md. Hasanujjman @ Hasan Sk. & Ors vs State Of West Bengal & Anr on 12 March, 2019

[Cites 13, Cited by 0]

Calcutta High Court (Appellete Side)

Md. Hasanujjman @ Hasan Sk. & Ors vs State Of West Bengal & Anr on 12 March, 2019

Bench: Subhasis Dasgupta

Ct No.22 C.R.R. No. 2757 of 2018 Md. Hasanujjman @ Hasan Sk. & Ors.

Versus State of West Bengal & Anr.

Mr. Sk. Jalaluddin, Adv.

... For the Petitioners.

Ms. Puspita Saha, Adv.

... For the State.

This revisional application is against the impugned order dated 18th April, 2018 issuing warrant of arrest and proclamation of attachment against revisionists/petitioners co‐incidentally and simultaneously passed by the learned Judge, Special Court constituted under Narcotic Drugs and Phychotropic Substance Act, 1985 (corresponding to the learned Additional Session Judge 2nd Court at Berhampore) at Berhampore, Murshidabad in NDPS Case No.173 of 2017 arising out of Lalgola Police Station Case No. 163 of 2017 dated 10.04.2017 under Section 21(c)/29 of NDPS Act, 1985.

Learned advocate for the revisionist fairly submits that the point involved in this case being purely based on law may be set at rest without calling for the records and without resorting to any extensive hearing even in the absence of opposite party no.2 being private opposite party in this case, having no direct contribution to the instant proceeding.

Upon perusal of the impugned order, it appears that the core issue raised herein is basically based on law and interpretation of the provisions contained in Sections 82 and 83 of the Code of Criminal Procedure. That being the position the revisional Court is of the view that the matter may be disposed of even though the cases appearing at the listed motion stage for law point having involved in this case.

The solitary point raised requiring decision is whether a Court can issue both warrant of arrest and proclamation of attachment simultaneously, which this Court is under obligation to answer.

Learned advocate for the revisionist adverting to Sections 82 and 83 of the Code of Criminal Procedure submits candidly that the procedure prescribed for proclamation and attachment thereafter, as specifically envisaged in Sections 82 and 83 of the Code of Criminal Procedure, there cannot be an order directing issuance of warrant of arrest and proclamation of attachment conjointly making contravention of the settled provisions of the law.

Learned advocate representing the State/opposite party submits that the case may be disposed of on the basis of settled proposition of law.

At the interest of capitalising the provision contained in Sections 82 and 83 of the Code of Criminal Procedure some crucial facts may be referred to, which in the assessment of this Court, are of highest significance in this case.

The revisionists were arraigned as co‐accused in a case registered at Lalgola Police Station Case No. 163 of 2017 dated 10.04.2017 under Section 21(c)/29 of the NDPS Act, 1985. Learned Court below was pleased to take cognizance of the chargesheet. The High Court passed direction to expedite the trial even by splitting the case for the presentee accused from absconding accused persons. It is in this background, the learned Court below proceeded to pass the impugned order dated 18th April, 2018 issuing warrant of arrest and proclamation of attachment against the revisionist at the same sitting.

Admittedly, Sections 82 and 83 of the Code of Criminal Procedure deal with the procedure to be adhered to for proclamation and attachment.

Relevant provisions of Sections 82 and 83 of the Code of Criminal Procedure are reproduced hereinbelow.

82. Proclamation for person absconding. - (1) If any Court 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 4 and at a specified tome 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;

(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).

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 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, 5 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 livestock 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 6 receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

Satisfaction of the Magistrate, that the accused is evading or concealing arrest, is a sine qua non to issue a warrant of arrest against any person in a case where such person has committed a non‐bailable offence. Whereas the proclamation may be published against an accused in a case where it is found that such accused person, against whom a warrant of arrest has already been issued, is deliberately absconding arrest or concealing himself, which is patent in nature causing resistance to the execution of warrant of arrest. Section 82(1)(2) of Cr. P.C. lays down the requirement of law and the formalities to be observed while making order issuing the proclamation by the Magistrate.

Section 82(3) enunciates that the statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified date, in the manner specified, in clause (1) of sub‐Section (2), shall be conclusive evidence and that the requirements of the Section have been complied with, and further that the proclamation was published on such day. So a recording of statement of satisfaction of the Magistrate to the effect that the person sought to be arrested is either evading, or concealing arrest is a prerequisite to the issuance of proclamation in terms of Section 82 Cr. P.C., and further a statement in writing by the Court 7 issuing proclamation revealing adherence to the procedure prescribed in Sub‐Section 2 of Section 82 is a must prior to passing order of attachment of the property of the person, said to be either absconding or concealing arrest.

After adhering to the procedure laid down in Section 82 of the Code of Criminal Procedure, a person evading arrest may be pronounced to be proclaimed offender.

As soon as the formalities connected with the proclamation is completed, the Magistrate issuing proclamation, for reasons to be recorded in writing at any time after the issue of proclamation, order the attachment of any property, movable or immovable, or both belonging to the proclaimed person.

Therefore, the demand of the law, while making approach by the Court to take recourse to Sections 82 and 83 of the Code of Criminal Procedure Code, the requirements, and the formalities to be observed have to be duly discharged, contravention thereof has no sanction under the law. There is little departure evident from Section 83 Cr. P.C. by reason of the proviso being appended to Section 83(1) Cr. P.C, when the Court can issue proclamation and attachment simultaneously. The proviso incorporated in Sub‐ Section 1 of Section 83 of the Code of Criminal Procedure enunciates that if at the time of issuing the proclamation, the Court is satisfied 8 by affidavit, or otherwise, the order of attachment simultaneously with the issue of proclamation may be passed on the following contingencies:

a) When the person evading or concealing arrest is about to dispose of the whole or any part of his property.

b) When the person evading or concealing arrest is bout to remove the whole or any part of his property from the local jurisdiction of the case.

The case referred to hereinabove is not covered by the contingencies mentioned in proviso of in Sub‐Section 1 of Section 83 of Cr. P.C. The approach adopted by the Court below by issuing warrant of arrest and proclamation of attachment conjointly and simultaneously is devoid of the sanction of the law. The requirement of law as regards simultaneous issuance of warrant of arrest and proclamation of attachment was taken up by a Coordinate Bench of this case, and in an unreported decision rendered in the case of Nanki Bhayna @ Ratan Bhayna & Ors. Vs. The State of West Bengal, being CRR No. 3554 of 2013, it was decided that the Court below committed a gross illegality in passing an order of proclamation and attachment simultaneously with the order of warrant of arrest.

The revisional application is thus allowed and the impugned order is set aside.

It is a case where Magistrate proceed independently to issue proclamation and attachment together with warrant of arrest even in the absence of any prayer from investigating officer of this case.

It is, however, made it clear that this order will not preclude the learned Magistrate from issuing any Tagid for execution of warrant of arrest which has already been issued against the revisionist/accused.

The investigating officer is at his liberty to make approach before the Court with a new prayer in accordance with law, and if any, prayer comes independently from investigating officer of this case, the learned Court below would dispose of the same adhering to the provisions strictly contained in Sections 82 and 83 of the Code of Criminal Procedure.

Office is directed to communicate this order to Court below without making any delay.

Urgent certified copy of this order, if applied for, be made available to the parties upon compliance with requisite formalities.

(Subhasis Dasgupta, J.)

Unlock Advanced Research with PRISMAI

Calcutta High Court (Appellete Side)