Allahabad High Court
Pankaj Singh @ Ajay Singh vs State Of Uttar Pradesh Thru. Prin. Secy. ... on 25 January, 2022
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 29 Case :- APPLICATION U/S 482 No. - 175 of 2022 Applicant :- Pankaj Singh @ Ajay Singh Opposite Party :- State Of Uttar Pradesh Thru. Prin. Secy. Home Deptt. Lko. And 3 Others Counsel for Applicant :- Dr. Pooja Singh Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.
Heard Mr. Siddharth Luthra learned Senior Counsel assisted by Ms. Shakshi Kakkar and Mr. Shakti Singh learned counsel for petitioner and learned A.G.A. appearing on behalf of opposite parties 1 to 3. In view of order being passed, notices to opposite party No.4 stand dispensed with.
Petition under Section 482 Cr.P.C. has been filed challenging the order dated 31st August, 2021 and 15th September, 2021 passed passed by Chief Judicial Magistrate, Pratapgarh initiating proceedings under Section 82(3) Cr.P.C.
Learned counsel for petitioner submits that petitioner was the first informant in the incident that has taken place with regard to case crime No. 407 of 2020 under Sections 147, 148, 149, 307 and 302 IPC in Police Station Kotwali Nagar, District Pratapgarh. It is submitted that petitioner was not initially named in the first information report and his name has been included only during investigation after one year after lodging of the first information report. It is submitted that an application for issuance of non bailable warrant against the petitioner was filed by the investigating officer in which non bailable warrant was issued. It is however submitted that the petitioner was not made aware of the proceedings prior to the issuance of the said warrant since his name was not included in the first information report. It is submitted that the entire proceedings as well as the impugned order have been passed behind the back of petitioner.
It has been further submitted that a co-accused Anurag Dubey had filed writ petition No.22124 (M/S) of 2021 challenging the order dated 15th September, 2021 under Section 82 Cr.P.C. and the said writ petition was allowed by means of judgment and order dated 28th October, 2021 quashing the order passed under Section 82 Cr.P.C. It is submitted that petitioner's case is relative to the said case.
Learned Senior Counsel has further more submitted that the impugned order is not in consonance with provision of Section 82 Cr.P.C. inasmuch as there is no subjective satisfaction recorded by the court with regard to petitioner not cooperating in the investigation or evading arrest. Reliance has been placed upon judgment of Hon'ble Supreme Court in the case of State through C.B.I. versus Dawood Ibrahim Kakkar reported in (2000)10 SCC 438 as well as judgment of this Court in the case of Kunwar Mahendra Pratap Singh versus State of U.P. and others, petition under Section 482 No. 2261 of 2021.
It has been further submitted that prior to issuance of the order under section 82 Cr.P.C., the investigating officer was required to furnish an affidavit as per judgment of this court in the case of Kunwar Mahendra Pratap Singh (supra). That having not been done, the impugned order even otherwise is unsustainable particularly since affidavit by the investigating officer was submitted subsequent to the impugned order dated 31st August, 2021 and therefore there was no material before the court concerned at the time of passing of the impugned order for recording subjective satisfaction regarding evasion of petitioner or his non cooperation during investigation.
Learned A.G.A. appearing on behalf of opposite parties opposed has opposed the petition with the submission that the order impugned is perfectly cogent and reasonable and in accordance with provisions of Section 82 Cr.P.,C., which therefore does not require any interference. It is submitted that the court concerned in the impugned order has clearly recorded the fact that the petitioner is not cooperating in the investigation and is evading arrest due to which order under Section 82 Cr.P.C. was required to be passed.
Having considered submissions advanced by learned counsel for parties and upon perusal of material on record, it appears that initially an application was filed by the investigating officer for issuance of non bailable warrant against the petitioner whereafter non bailable warrants were issued and subsequently the order impugned has been passed under section 82 Cr.P.C. It is not denied that the petitioner was initially not named in the first information report.
From a perusal of the impugned order, it appears that the court concerned has passed orders under section 82 Cr.P. after examining the case diary and upon the plea raised by the investigating officer regarding non cooperation of petitioner in the investigations being carried out. However it is also evident that a number of accused have been named in the first information report but only a general allegation has been recorded in the order impugned with regard to non cooperation in the investigation proceedings. The court concerned has not bothered to indicate on which dates the petitioner was made aware with regard to issuance of any letter by the investigating officer for seeking cooperation in the investigation or even the date on which the non bailable warrant was served upon the petitioner. There is only a bland assertion recorded in the impugned order that the petitioner is evading arrest.
Section 82 Cr.P.C. pertains to proclamation for person absconding and for provisions of attachment. It clearly states that the court has to record a reason to believe if any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant can not be executed then such court may publish a written proclamation requiring him to appear at specified place and at a specified time not less than 30 days from the date of publishing such proclamation.
Upon perusal of provision of Section 82 Cr.P.C., it is evident that prior to issuance of any order under the said provision, the court has to record a reason that the person against whom warrant has been issued has specifically absconded or has concealed himself so that such a warrant can not be executed. As such from reading of the aforesaid provision, it is a mandatory duty cast upon the court concerned to record as to how and when the person concerned has absconded or has concealed himself so that the warrant can not be executed. For such purpose, it is the duty of the court concerned to indicate that the person was aware of the proceedings against him particularly also the investigation being conducted against him. Unless and until such a subjective satisfaction is recorded by the court concerned, provisions of Section 82 Cr.P.C. can not be invoked by the court concerned.
In the case of Dawood Ibrahim (supra), Hon'ble Supreme Court has referred to provisions of section 73 which may be read in the context of Section 82 Cr.P.C. in the following manner:-
"24. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorization for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the courts solely for the production of the accused before the police in aid of investigation."
The aforesaid judgment clearly indicates that for exercise of powers by the magistrate concerned, orders are not to be passed as a matter of course on a mere asking of police but only after exercise of judicial discretion based on material placed before him particularly since provisions of Section 82 Cr.P.C. are stringent in nature and may entail loss of liberty and property.
In the present case, merely a bland advertment to the case diary would not be enough , the court has a bounden duty to indicate the factors for which it has reason to believe that the person concerned has absconded or is not cooperating for the purposes of service of warrant. Such a procedure is compulsorily required to be undertaken by the court concerned in view of the provisions of Section 82 Cr.P.C.
Learned counsel for petitioner has also referred to judgment of this Court in the case of Kunwar Mahendra Pratap Singh (supra) with the submission that prior to issuance of any order under Section 82 Cr.P.C., it is compulsory that the magistrate should consider the application of the investigating officer which should be supported by affidavit stating the reasons why non bailable warrant and proclamation under Section 82 Cr.P.C. is required since the issue relates to personal liberty of a person guaranteed under Article 21 of the Constitution of India.
Upon perusal of the aforesaid judgment, juxtaposed with the provisions of Section 82 Cr.P.C., it is the considered opinion of this Court that submission of an affidavit by the investigating officer at the time of making of application for issuance of process under Section 82 Cr.P.C. can not be a mandatory provision. There is no such provision under Section 82 Cr.P.C. requiring the investigating officer to submit an affidavit along with the application. Such a provision may be required when orders are being passed simultaneously under Sections 82 and 83 Cr.P.C., but can not be considered to be mandatory at the time of consideration of an application filed only under section 82 Cr.P.C. It is trite that casus omissus can not be supplied by the court particularly when there is no confusion with regard to the provisions of statute. As such and also upon reading of the judgment of this Court in the case of Kunwar Mahendra Pratap Singh (supra), it is evident that the requirement of affidavit to be filed by the investigating officer while seeking an application for issuance of proceedings under Section 82 Cr.P.C. is merely directory and not mandatory and may be insisted upon the court concerned in specific cases for reasons to be recorded.
Considering the aforesaid factors, it is evident that the impugned orders not being in consonance with the provisions of Section 82 Cr.P.C. are therefore unsustainable. Consequently the impugned orders dated 31st August, 2021 and 15th September, 2021 passed passed by Chief Judicial Magistrate, Pratapgarh with regard to case crime No. 407 of 2020 under Sections 147, 148, 149, 307 and 302 IPC in Police Station Kotwali Nagar, District Pratapgarh quashed and resultantly the petition is a allowed. Liberty however is granted to the court concerned for passing fresh orders in case it is necessary to do so but only in accordance with provisions of Section 82 Cr.P.C. as indicated herein above.
Order Date :- 25.1.2022 prabhat