Calcutta High Court (Appellete Side)
Samir Sarkar @ Bachchu vs The State Of West Bengal on 27 November, 2018
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In The High Court At Calcutta
Criminal Revisional Jurisdiction
27.11.18
CRR 2140 of 2018
Samir Sarkar @ Bachchu
-vs-
The State of West Bengal
Mr. Tapas Kumar Ghosh
Mr. Tanmoy Chowdhury
... for the petitioner.
Mr. Ayan Basu
... for the State.
This is an application under Section 401 read with Section 482 of the
Code of Criminal Procedure, 1973 challenging the order dated March 27, 2018
passed by the learned Additional Chief Judicial Magistrate, Barrackpore, District-
North 24-Parganas in G.R.No. 03 of 2018 arising out of Ghola Police Station Case
No. 02 of 2018 dated January 1, 2018 under Sections 302/34 of the Indian Penal
Code, 1860 and Sections 25/27 of the Arms Act, issuing order of proclamation
against the present petitioner.
The petitioner's case as made out in this revisional application is that on
December 31, 2017 the petitioner went to meet his friend, who resides at Beltala
Ramlila Math, Post Office and Police Station-Ghola, District- North 24-Parganas
for the purpose of celebrating the night of December 31, 2017 and to the eve of
January 1, 2018.
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The petitioner along with his 2/3 friends were gossiping amongst
themselves on the ground-floor of the building of Santanu Roy Chowdhury @
Totan at that time, suddenly, they heard a sound of firing in the said premises
and out of fear, they immediately left the said premises.
While coming down from the upstairs of the said premises, they found one
lady standing in the gate of the said house, where petitioner along with his
friends were enjoying and celebrating the night of December 31, 2017.
Subsequently, the petitioner came to know that some miscreants have killed the
husband of the said lady Piyali Bose, viz. Rajesh Bose, a resident of Acharya
Prafulla Pally, Police Station-Ghola, Calcutta- 700 111.
The wife of the said deceased viz. Piyali Bose, lodged a written complaint
with the Officer-in-Charge, Ghola Police Station against his friend Santanu Roy
Chowdhury @ Totan and others including a co-accused person, the present
petitioner and on the basis of the said written complaint, Ghola Police Station
initiated a case, being Ghola Police Station Case No. 02 of 2018 dated January 1,
2018 under Sections 302/34 IPC, 1860 and Sections 25/27 of the Arms Act,
corresponding to G.R. No. 03 of 2018 for investigation.
In connection with the aforesaid police station case Charge-sheet being No.
142 dated March 31, 2018 under Sections 302/34 IPC and sections 25/27 of the
Arms Act was submitted against the FIR named persons including the present
petitioner.
It would appear from the order dated March 21, 2018 that on prayer of the
Investigating Officer warrant of arrest was issued against the two accused
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persons including the present petitioner fixing March 27, 2018 for execution
report.
On the adjourned date the learned Magistrate received non-execution
report from the police concerned in respect of the accused persons including the
present petitioner. So a direction was given for issuance of proclamation and
attachment listing the case on April 10, 2018 for execution report and for
production of other accused persons who are in jail custody. It would appear
from the records that charge-sheet was received against four accused persons
including the present petitioner and cognizance was taken but in respect of the
present petitioner, proclamation and attachment (in short 'P/A' ) was issued but
report was submitted with nil seizure list against the accused Amit Mondal.
As per the Investigating Officer's report for the custody trial of the rest
accused persons in custody, a date was fixed for their production.
The order dated April 3, 2018 passed in G.R. No. 03/2018 reveals that
execution report in respect of the P/A with nil seizure list against the present
petitioner was received against him and the case has been filed for the present.
Copies of the police papers have been supplied to the accused persons in jail
custody in order to enable speedy trial in respect of rest of the accused persons
in custody. The learned Magistrate appears to have passed the order of P/A in
one go.
Order dated April 24, 2018 further reveals that the case has been
committed to the learned Additional District & Sessions Judge, 1st Court,
Barrackpore, North 24-Parganas and the date has been fixed for consideration of
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charge lastly on July 27, 2018 as per the order dated June 30, 2018 annexed to
this revisional application.
The challenge in this revisional application is that the process of P/A under
the provisions of Sections 82 and 83 of the Criminal Procedure Code, 1973
cannot be adhered to at a time.
Mr. Tapas Ghosh, learned counsel for the petitioner has contended that in
terms of Section 82 of the Code of Criminal Procedure, 1973 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.
It is also submitted as per the provisions of Section 83 that the Court
issuing a proclamation under Section 82 may, for reasons to be recorded in
writing, at any time after the issuance of the proclamation order, the attachment
of any property, movable or immovable or both, belonging to the proclaimed
person.
It is so submitted that the petitioner has filed an application for
anticipatory bail which has been adjourned by the Hon'ble Division Bench on the
score that unless the order of P/A is set aside, the Hon'ble Division Bench is not
in a position to consider the application for Anticipatory Bail on merit though the
petitioner has reason to belief that there is every possibility to get success in the
said application for anticipatory bail.
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Learned counsel for the petitioner has relied on a decision in the case of
Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., reported in
(2008) 1 SCC (Cri.) 259 to the observation of the Hon'ble Apex Court in
paragraphs 53 to 56 which reads thus:-
" When non-bailable warrants should be issued-
53. Non-bailable warrant should be issued to bring a person to Court when
summons or bailable warrants would be unlikely to have the desired result. This
could be when:
• it is reasonable to believe that the person will not voluntarily appear in
Court; or
• the police authorities are unable to find the person to serve him with a
summon; or
• it is considered that the person could harm someone if not placed into
custody immediately.
54. As far as possible, if the Court is of the opinion that a summon will
suffice in getting the appearance of the accused in the Court, the summon or the
bailable warrants should be preferred. The warrants either bailable or non-bailable
should never be issued without proper scrutiny of facts and complete application of
mind, due to the extremely serious consequences and ramifications, which ensue
on issuance of warrants. The Court must very carefully examine whether the
criminal complaint or FIR has not been filed with an oblique motive.
55. In complaint cases, at the first instance, the Court should direct serving
of the summons along with the copy of the complaint. If the accused seem to be
avoiding the summons, the Court, in the second instance should issue bailable
warrant. In the third instance, when the Court is fully satisfied that the accused is
avoiding the Court's proceeding intentionally, the process of issuance of the non-
bailable warrant should be resorted to. Personal liberty is paramount, therefore,
we caution Courts at the first and second instance to refrain from issuing non-
bailable warrants.
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56. The power being discretionary must exercised judiciously with extreme
care and caution. The Court should properly balance both personal liberty and
societal interest before issuing warrants. There cannot be any straitjacket formula
for issuance of warrants but as a general rule, unless an accused is charged with
the commission of an offence of a heinous crime and it is feared that he is likely to
tamper or destroy the evidence or is likely to evade the process of law, issuance of
non-bailable warrants should be avoided."
It would reveal from the observation as made by the Hon'ble Apex Court in
paragraph 55 in the said decision and so urged by Mr. Ayan Basu, learned
counsel for the State that it is in respect of a complaint case where the non-
bailable warrant cannot be issued at the first instance. Rather, a summon along
with copy of the complaint has to be directed to be served on the accused
persons and if the accused person is found to avoid the summon then only the
learned Court is to consider issuance of bailable warrant and if the execution of
the bailable warrant fails then only the learned Court can issue the non-bailable
warrant as a coercive measure and not otherwise.
I have found from the charge-sheet of the present case that the warrant of
arrest was issued against the petitioner who is an FIR named accused person
and also the accused against whom charge-sheet has been submitted under a
heinous crime. My attention is also invited to the facts recorded by the defacto
complainant in the first information report itself wherein at the first instance the
name of the petitioner is well transpired.
Mr. Ayan Basu agreeing with the submission of learned Counsel for the
petitioner submits that there is a technical defect in the order in so far as the
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issuance of the warrant of arrest and P/A together is concerned but still the
process of arrest and the process of proclamation remains pending for the
execution. Mr. Basu further averts to Section 82 of the Code contending that
there is no specific provision given by the legislature to record in writing the
reasons to believe on taking evidence or not whether any person against whom
warrant has been issued or has concealed himself so that such warrant cannot
be executed.
It is true that the warrant of arrest was issued on March 21, 2018 and the
execution date was fixed 7 days after on March 27, 2018. So there is no provision
that warrant of arrest has to be executed within a month and the Court fixed the
date according to its discretion. It is also submitted that the provisions of
Sections 82 and 83 of the Code are enabling provisions. I do agree with learned
counsel for the State on the score. I find that some of the accused persons are
languishing in jail but trial has not yet been started. The Investigating Officer
had prayed for custodial trial of the accused persons. So it was bounden duty of
the learned Magistrate to have committed the case to the Court of sessions and
for the purpose he appears to have issued W PA by one order to split the case for
the commitment of the case as against the accused persons in jail after filing the
case for the present against the rest. The learned Magistrate issued the process
of P/A at a time by the impugned order.
Be that as it may, having regard to the provisions so recorded that while
issuing attachment, the Court has to specifically record his satisfaction in writing
that the accused is a proclaimed absconder then only the attachment can be
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issued. There is no dispute as such on this point. However, the process of
proclamation issued by the Court that remains in force.
Learned counsel for the petitioner has relied on an unreported decision
dated March 21, 2014 passed in CRR No. 3554 of 2013 by the Hon'ble Justice
Ashim Kumar Roy to argue that the provisions of Sections 82 and 83 read
conjointly provides for securing the presence of an accused, but cannot be taken
recourse to simultaneously and coincidentally. A warrant can be issued against
any person, amongst other, in a case where such person accused of a non-
bailable offence is evading arrest. Whereas the proclamation may be published
against an accused, where it is found that such accused against whom already
an warrant of arrest has been issued, is absconding or concealing himself so that
the warrant of arrest cannot be executed. In this regard a statement in writing by
the Court issuing the proclamation to the effect that proclamation was duly
published on a specified day and in the manner prescribed thereunder shall be
conclusive evidence that the proclamation was published in compliance with the
provision of law. Even after publication of proclamation under sub-section (1) of
Section 82 in respect of a person accused, an offence punishable under Sections
302/304 /364/367 /382/ 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.
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In case of attachment of property, the Court issuing proclamation for
reasons to be recorded in writing, at any time after the issuance of proclamation,
order the attachment of any property movable or immovable or both, belonging to
the proclaimed person.
In a decision in the case of Pradip Kumar More v. The State of West Bengal,
reported in (2016) 4 C Cr LR(Cal) 360 my attention is invited by learned counsel
for the petitioner to the observation made in paragraph 5 of the decision wherein
it has been observed as follows :-
"The first point which I would like to consider is whether the order of
issuance of proclamation and publication of the same in the newspaper by learned
Magistrate and affirmation of the said order of learned Additional Sessions Judge
is justified under the law. On consideration of the judgment and order passed by
learned Additional Sessions Judge in Criminal Revision No. 133 of 2010 and
Criminal Revision No. 147 of 2010, I find that learned Additional Sessions Judge
has not considered that learned Magistrate issued proclamation without recording
his satisfaction that the accused persons for whom the proclamation is issued,
have been absconding and evading the arrest. On perusal of the order dated May
18, 2010 passed by learned Magistrate, I find that learned Magistrate has not
recorded in the about his satisfaction that the petitioner-accused persons were
absconding and evading arrest in spite of issuance of warrant of arrest. It appears
from the order passed by learned Magistrate that learned Magistrate has allowed
the prayer of the Investigating Officer for issuance of proclamation and publication
of the same in the newspaper only because warrant of arrest was pending against
the petitioner-accused persons. It is brought to the notice of this Court that the
petitioner-accused persons were pursuing legal remedy before the higher Court
initially by praying for anticipatory bail and thereafter by challenging the order
passed by learned Magistrate by way of revision before the Court of sessions. I
am also informed that the petitioner-accused persons either surrendered or
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arrested by the police during pendency of the revisional application before the
Court of sessions or immediately after dismissal of the revisional application by the
Court of sessions. Since learned Magistrate did not record in the order that the
petitioner-accused persons absconded and evaded arrest for issuance of
proclamation against them and publication of the same in the newspaper, and
since this vital omission in the order of learned Magistrate was not considered by
learned Additional Sessions Judge in the revisional applications, I am of the view
that the order of the Court of sessions affirming the order of issuance of
proclamation is not justified under the law as the same was not done in
accordance with the provision of Section 82 of the Code of Criminal Procedure. The
natural corollary of my above observation is that the judgment and order passed
by learned Additional Sessions Judge in the revisional applications is liable to be
set aside."
Learned counsel in support of his contention submitted that an application
for anticipatory bail under Section 438 CrPC has been kept in abeyance till the
disposal of this revisional application as the application for anticipatory bail
cannot be entertained in view of the order impugned or the reason that P/A has
been issued.
In a decision in the case of Lavesh v. State (NCT of Delhi), reported in
(2012) 3 SCC (Cri.) 1040 my attention is invited to the observation made in
paragraphs 11 and 12 which are reproduced herein for better appreciation of the
case reads thus:-
" 11. By placing the relevant materials and two status reports submitted by
the police, Mr. Sidharth Luthra, learned ASG submitted that the appellant was a
proclaimed offender. To this effect, Mr. V. Ranganathan, Additional Commissioner
of Police, West District, New Delhi, in his counter-affidavit, filed in this Court on 25-
6-2012, has stated that:
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" Efforts were made to arrest the petitioner but he absconded, as such he
was got declared a proclaimed offender. The case is pending trial."
The same has been reiterated in the status report filed by Mr. Virender Dalal,
Station House Officer, Police Station Punjabi Bagh, New Delhi, before the High
Court.
12. From these materials and information, it is clear that the present
appellant was not available for interrogation and investigation and was declared
as a " proclaimed offender", there is no question of granting anticipatory bail. We
reiterate hat 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."
Learned counsel for the petitioner has relied on a decision in the case of
State of Madhya Pradesh v. Pradeep Sharma; reported in (2014) 2 SCC 171
where the earlier decision of the Hon'ble Supreme Court in the case of
Lavesh(supra) has been relied on with the following observation made in
paragraphs 16 and 17 which are reproduced hereunder :-
" 16. Recently, in Lavesh v. State (NCT of Delhi), this Court (of which both of
us were parties) considered the scope of granting relief under Section 438 vis-à-vis
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: (SCC p.733)
" 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
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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.
17. In the case on hand, a perusal of the materials i.e. confessional
statements of Sanjay Namdev, Pawan Kumar alias Ravi and Vijay alias Monu
Brahambhatt reveals that the respondents administered poisonous substance to
the deceased. Further, the statements of the witnesses that were recorded and the report of the Department of Forensic Medicine and Toxicology, Government Medical College and Hospital, Nagpur dated 21.3.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice hat warrants ere 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 P-13) produced by the State clearly show that the CJM, Chhindwara, M.P> issued a proclamation requiring the appearance of both the respondent-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 Section 302/120B read with Section 34 IPC. In such serious offences, particularly, the respondent-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."
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In the context above and having regard to the principles laid down in the above cited decisions and in consideration of the seriousness of the case, I am of the view that proclamation as issued against the accused/petitioner by the impugned order be sustained but so far as the issuance of the attachment is concerned the Court ought not to have issued the same by one single order having regard to the conjoined reading of the provisions of Sections 82 and 83 of the Code.
As discussed above, this Court finds that the case has been split as against the petitioner and other accused persons not facing the trial whereas some of the accused persons were in custody on the verge of their case to be taken on charge being framed against them. This facts cannot be lost sight of on record that July 27, 2018 was fixed for framing of the charge in respect of the accused persons in custody who are equally entitled to have a fundamental right for speedy trial. Therefore, there cannot be any legal impediment in proceeding with the sessions case which has been started as against the accused persons in custody. However, In respect of the petitioner the process of warrant of arrest and proclamation issued against him remains and they may be executed under the process. So far as the part of the order for issuing attachment together is not considered as tenable in law.
Therefore, this revisional application is disposed of with direction to the learned Magistrate to consider for execution of the warrant of arrest and the proclamation issued against him by directing the Investigating Officer concerned to put in report in writing with regard to the process of execution of warrant as 14 well as the proclamation and then only the Magistrate can record in writing the fact as transpired from the report as to whether the accused/petitioner cannot be proclaimed as absconder. Thereafter, the Magistrate will be at liberty to undertake the process of the provisions of Section 83 by recording his satisfaction in writing and to issue attachment thereafter. In the meantime, if the petitioner surrenders before the Court on his own his bail prayer may be considered by him on the basis of the materials on record and the case diary because in this revisional application he has taken a plea that he was in the house of his friends when the incident took place and alleged firing of the deceased was by miscreants.
Mr. Basu urged on the point that so far as one month time is concerned the petitioner has approached before this Court five months after the issuance of the P/A. So he had enough opportunity to surrender before the Court. So no prejudice suffered by the accused petitioner.
With the above observation and discussion, this revisional application being CRR 2140 of 2018 is disposed of.
Urgent xerox certified copy of this order, if applied for, be given to the parties after completion of all legal formalities.
sh ( Shivakant Prasad, J.)