Orissa High Court
Ipsita Pratihari vs State Of Orissa on 23 March, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV No. 886 of 2016
From the order dated 05.11.2016 passed by the S.D.J.M., Puri in
G.R. Case No.1561 of 2016.
---------------------------
Ipsita Pratihari ......... Petitioner
-Versus-
State of Orissa ......... Opp. party
For Petitioner: - Sri Asok Mohanty
(Senior Advocate)
For Opp. party: - Mr. Deepak Kumar
Addl. Standing Counsel
CRLREV No. 887 of 2016
From the order dated 05.08.2016 passed by the S.D.J.M., Puri in
G.R. Case No.1561 of 2016.
----------------------------
Ipsita Pratihari ......... Petitioner
-Versus-
State of Orissa ......... Opp. party
For Petitioner: - Sri Asok Mohanty
(Senior Advocate)
For Opp. party: - Mr. Deepak Kumar
Addl. Standing Counsel
--------------------- ------
2
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Hearing and Judgment: 23.03.2017
---------------------------------------------------------------------------------------------------
S. K. Sahoo, J.The petitioner Ipsita Pratihari has filed the criminal revision petition vide CRLREV No. 887 of 2016 to set aside the impugned order dated 05.08.2016 passed by the learned S.D.J.M., Puri in G.R.Case No. 1561 of 2016 in which the prayer made by the Investigating Officer for issuance of proclamation under section 82 of Cr.P.C. against the petitioner was allowed. Similarly the petitioner has filed another criminal revision petition vide CRLREV No. 886 of 2016 to set aside the impugned order dated 05.11.2016 passed by the learned S.D.J.M., Puri in allowing the prayer made by the Investigating Officer for attachment/freezing of the accounts and properties of the petitioner and also the consequential order dated 19.11.2016 of the Deputy Supdt. of Police, City, Puri in which he has locked, sealed and attached the property of the petitioner. The said case arises out of Singhadwar P.S. Case No. 46 of 2016 registered on 18.07.2016 under sections 143, 341, 353, 294, 506, 186, 188 read with section 149 of the Indian Penal Code and Sections 30-A (4)(b) of Sri Jagannath Temple Act, 1955.
3Since both the revision petitions arise out the same case and the petitioner is the same, with the consent of the parties, those were heard analogously and are being disposed of by this common judgment and order.
2. The prosecution case, as per the First Information Report dated 18.07.2016 lodged by Shri Aravind Agrawal, IAS, District Magistrate and Collector, Puri -cum- Deputy Chief Administrator, Shree Jagannath Temple Administration before the Superintendent of Police, Puri is that Shri Jagannath Temple Management Committee had restricted entry of unauthorized persons/ non-Sevayats/ devotees and family members of the Sevayats on the Chariots of the Jews and in order to enforce the decision, adequate arrangements were made. On 17.07.2016 at about 9.00 p.m. on Niladri Bije, it was noticed that some of the Sevayats and few others forcefully took a lady on the Chariot of Lord Balabhadra in spite of restriction imposed. The Jagannath Temple Police on the Chariots who were assigned the duty to restrict the unauthorized entry failed to restrict the lady while climbing to the Chariot. When the informant noticed the same, he along with the Inspector in-charge of Lion's Gate Police Station and few other female Police officers on duty restrained the lady verbally to climb over the other Chariots and 4 at that moment, Sevayats Damodar Mahasuar, Bhimsen Palankadhari and Jayakrushna Mahasuar started abusing the informant and they were immediately joined by other Sevayats including the petitioner and all of them started abusing the informant in unparliamentary and filthy language and threatened him with dire consequences to kill him. They also tried to assault the informant as a result of which the informant was publicly embarrassed. It is further stated in the First Information Report that the inhuman and shameful behavior of the Sevayats severely shocked the informant and other senior officials and thereafter the Sevayats also dared to stop Pahandi of Lord Sudarshan after it was started. It is further stated that during the entire process, many other Sevayats started abusing the informant in filthy language and obstructed the carcade of Lord Sudarshan. Since the safety and security of the informant was jeopardized, Senior Police Officers rescued him from the spot and after a lot of persuasion, the Pahandi started and embarrassing situation faced by Jews could be avoided and normalcy restored.
3. The Deputy Superintendent of Police, City, Puri was entrusted with the investigation of the case. On 19.07.2016 some of the accused persons were arrested and forwarded to Court. On 20.07.2016 and 21.07.2016 raids were conducted at 5 different places of Puri to apprehend the absconding accused persons but in vain. On 22.07.2016 some more accused persons were arrested and forwarded to Court.
On 23.07.2016 the Deputy Superintendent of Police, City, Puri made a prayer before the learned S.D.J.M., Puri in connection with the case for issuance of non-bailable warrant of arrest against the accused persons including the petitioner as they intentionally concealed their presence to avoid police arrest. On 24.07.2016 one more accused was arrested and forwarded to Court. On the basis of the petition dated 23.07.2016, the learned S.D.J.M., Puri issued non-bailable warrant of arrest on 25.07.2016 against the petitioner and others. On 25.07.2016 as per the order of Superintendent of Police, Puri, seven teams were formed for conducting raid and to apprehend the accused persons. On that day one more accused was arrested and forwarded to Court and raids were conducted at different places at Cuttack, Bhadrak and Balasore but no accused persons could be arrested. On 26.07.2016 raid was conducted at Barahaguda and Kolkata and also at Bhubaneswar. On 27.07.2016 one more accused was arrested and forwarded to Court.
On 28.07.2016 the Investigating Officer filed another petition for issuance of proclamation under section 82 of Cr.P.C. 6 before the learned S.D.J.M., Puri indicating therein that after issuance of non-bailable warrant of arrest against the accused persons, to step up efforts for their apprehension, police teams were formed and regular raids were conducted on their probable stake-outs and hideouts but to no avail and therefore, it was to be construed that the accused persons remained elusive to evade police arrest.
On the basis of such petition, the learned S.D.J.M., Puri passed the impugned order dated 05.08.2016 in allowing the petition which is impugned in CRLREV No. 887 of 2016. The learned Magistrate in the impugned order dated 05.08.2016 has been pleased to hold that on perusal of the case diary, it revealed that several attempts were made to arrest the accused persons vide raid dated 22.07.2016, 23.07.2016, 24.07.2016, 2507.2016, 29.07.2016 and several other dates and that the warrants issued against the accused persons were returned unexecuted which also revealed the said fact. The learned Magistrate being satisfied that there are reasons to believe that the petitioner and the other accused persons against whom warrants were issued have absconded or concealed themselves so that the warrants could not be executed, directed the Investigating Officer to publish the written proclamation 7 requiring the accused persons to present before the Court on or before 12.09.2016. It was further directed to the Investigating Officer to publish the proclamation as per sub-section (2) of Section 82 of Cr.P.C. publicly read with some conspicuous place of the town or village in which the accused persons ordinarily reside and by affixing the same to the conspicuous house or homestead in which the accused persons ordinarily reside or to some conspicuous place of town or village and a copy thereof was directed to be attached to the conspicuous part of the Court house.
On 16.09.2016 another petition was filed by the Investigating Officer for attachment of movable as well as immovable property of the petitioner and other accused persons. It is mentioned therein that the petitioner is also involved in Singhadwar P.S. Case No.47 of 2008 dated 08.11.2008 under sections 341, 323, 294, 506 read with section 34 of the Indian Penal Code and that the proclamation orders were promulgated and circulated at the respective places of residence of the accused persons and other conspicuous places and that the accused persons are by no means abiding the law and they continued to be elusive to evade arrest and hoodwink the process of law. It was indicated in the petition that there was every 8 possibility that the petitioner and other accused persons might dispose of the whole or any part of the property and also remove the whole of the property form the local jurisdiction of the Court.
On the basis of such petition, the learned S.D.J.M., Puri passed the impugned order dated 05.11.2016 in allowing the petition holding that after proclamation was issued, the accused persons voluntarily abstained from participating in the process of law during investigation and directed for attachment/freezing of accounts and properties of the petitioner.
4. Mr. Asok Mohanty, learned Senior Advocate challenging the impugned order dated 05.08.2016 contended that it suffers from non-application of mind as there was no sufficient material before the learned Magistrate to believe that the petitioner against whom warrant has been issued has absconded or concealed himself so that the warrant cannot be executed. It is contended by the learned counsel for the petitioner that during course of investigation, the petitioner filed an application under section 438 Cr.P.C. vide ABLAPL No. 12948 of 2016 on 03.08.2016 before this Court and the copy of the said application was also served on the learned counsel for the State and because of the impugned order dated 05.08.2016, the anticipatory bail application was withdrawn. It is further 9 contended that the offences under which the case was registered come within the sweep of section 41 of the Cr.P.C. and therefore, the police officials should have followed the procedure as numerated under section 41-A of the Cr.P.C. issuing notice of appearance to the petitioner which has not been done. Learned counsel for the petitioner placed reliance in the case of Mrs. N. Ratnakumari -Vrs.- State of Odisha reported in (2014) 58 OCR 1050 and in the case of Arnesh Kumar -Vrs.- State of Bihar reported in (2014) 58 OCR (SC) 999. Learned counsel for the petitioner further contended that the impugned order of attachment of properties of the petitioner was also passed in a mechanical manner inasmuch as the petitioner had already entered appearance by then through his counsel before the learned Magistrate.
Mr. Deepak Kumar, learned Addl. Standing Counsel on the other hand supported the impugned orders and contended that there was every justification on the part of the learned Magistrate to take recourse of sections 82 and 83 of Cr.P.C. on the basis of the available materials. The learned counsel relied upon the affidavit which was filed by the Inspector in-charge of Singhadwar Police station and submitted that after conducting raids at different places inside Puri town on 10 19.07.2016 to 25.07.2016, seven teams of police officials were formed after receiving necessary orders from the Supdt. of Police, Puri for conducting raid to apprehend the accused persons in different parts of the City and outside the district and accordingly raids were conducted under the jurisdiction of different police stations i.e. Markat Nagar Police station, Cuttack, Ghatsila Police station, Jharkhand, Sahid Nagar Police station, Khurda, Barahguda police station, Jharkhand, Bhadrak Town Police station, Bhadrak, Industrial Police station, Balasore, Sahadevkhunta Police station, Balasore, Cantonment Police station, Cuttack, Ranpur Police sation, Nayagarh and Odogaon Police station, Nayagarh. It is stated in the affidavit as pointed out by the learned Addl. Standing Counsel that before conducting such raid, the Investigating Officer submitted requisitions to the concerned police stations for rendering necessary police assistance but the corresponding Station Diary Entries could not be obtained from the said police station.
5. Adverting to the contentions raised by the learned counsels for the respective parties and on the scrutiny of the first impugned order i.e. 05.08.2016, it is apparent that the learned Magistrate after perusal of the case diary, came to hold that several attempts have been made to arrest the accused persons 11 vide raid dated 22.07.2016, 23.07.2016, 24.07.2016, 25.07.2016, 29.07.2016 and several other dates and that the warrants issued against the accused persons which were returned unexecuted also revealed the said fact. As per the petition dated 23.07.2016 of the Investigating Officer, the non- bailable warrant of arrest was issued on 25.07.2016, therefore, raids were not conducted on dated 22.07.2016, 23.07.2016 and 24.07.2016 on the basis of the warrants issued against the accused persons. The unexecuted warrants are expected to reveal what happened after its issuance and not before that. The case diary dated 22.07.2016 does not specifically indicate that raids were conducted at different places of Puri town to apprehend the petitioner rather it indicates that raids were conducted to apprehend the absconding accused persons namely Damodar Mahasuar, Jayakrushna Mahasuar, Bhimasen Palankadhari, Saina Khuntia and others (who are those others?) but the I.O. could be able to apprehend one accused namely Rabina @ Babina @ Suryanarayan Pratihari. Since there is no specific mention relating to the raid conducted to apprehend the petitioner in the case diary, no presumption can be drawn in that respect. The case diary dated 22.07.2016 further reveals that on the very day, getting reliable information, raid was conducted at 12 Harachandi Sahi Chhak and the accused Raghunath Khuntia @ Raghuni was apprehended and both the accused persons i.e. Rabina and Raghuni were forwarded to Court.
Similarly, the case diary dated 23.07.2016 is silent regarding the raid conducted specifically to arrest the petitioner rather it reveals that since the accused persons named in the F.I.R. have concealed their presence to avoid police action, prayer was made before the learned S.D.J.M., Puri to issue non- bailable warrant of arrest against the accused persons including the petitioner.
The case diary dated 24.07.2016 reveals that one of the accused namely Gugulu @ Sanjay Khuntia was arrested and he was forwarded to Court but there is nothing in the case diary dated 24.07.2016 that any raid was conducted so far as the petitioner is concerned.
The case diary dated 25.07.2016 indicates relating to formation of seven teams as per the order of the Supeintendent of Police, Puri to apprehend the accused persons in different parts of the City, Puri district and outside and on that day one of the accused namely Madhusudan Khuntia was taken into custody and he was forwarded to Court. The case diary further reveals that raids were conducted at Hotel Pramod, Blue Lagoon, Akbari 13 and some probable hideouts in Sectors 6, 9 and 10 of C.D.A. at Cuttack but no fruitful result came out. Similarly, raids were conducted in Tulasipur, Hindol Kothi, Shelter Chhak and Kanika Chhak but the absconding accused persons could not be traced. It further reveals that raids were conducted at Bhadrak, Charampa, Kacheri road area with assistance of local police in the stakeouts and hideouts but the accused persons could not be apprehended. Similarly the raids were conducted in the specified hideouts in Sahadev Khunta area and Industrial P.S. area of Balasore along with the local staff and special teams but the absconding accused persons could not be traced out. In the case diary dated 25.07.2016 also there is no specific mention regarding raid conducted to apprehend the petitioner.
The order sheet dated 29.07.2016 which was relied upon by the learned Magistrate in the impugned order dated 05.08.2016 indicates that raids were conducted at different places of Nayagarh but again there is no specific mention that it was to apprehend the petitioner.
6. Section 82 of Cr.P.C. prescribes that there must be reasonable belief on the part of the Court before publishing a written proclamation that the accused against whom the warrant was issued has absconded or concealing himself so that such 14 warrant cannot be executed. Since it is not dispute that warrant was issued only on 25.07.2016 and thereafter till the petition under 82 of Cr.P.C. was made on 28.07.2016, the case diary is silent that any raid was specifically conducted to arrest the petitioner on the basis of such warrant, the learned Magistrate should not have jumped to the conclusion that warrants issued against the petitioner remained unexecuted in spite of several raids. In the affidavit filed before this Court by the Inspector in- charge of Singhadwara Police station, it is mentioned that raids were conducted under the jurisdiction of ten police stations, two of which are at Cuttack i.e. Markat Nagar Police station and Cantonment Police station. The case diary indicates that so far as Cuttack is concerned, on 25.07.2016 several places of CDA, some hotels as well as Tulasipur, Hindol Kothi, Shelter Chhak and Kanika Chhak were raided.
Section 79 of Cr.P.C. states that when a warrant has been directed to a police officer to be executed beyond the local jurisdiction of the Court issuing the same, the concerned police officer has to take such warrant for endorsement either to an Executive Magistrate or to a police officer not below the rank of officer in charge of police station, within the local limits of whose jurisdiction the warrant is to be executed. The section further 15 specifies that such Executive Magistrate or police officer shall endorse his name on the warrant which would give sufficient authority to such officer to whom the warrant has been directed for execution to execute it and the local police shall, if required, assist the officer in the execution of the warrant. Therefore, the combined reading of sub-section (1) and sub-section (2) of section 79 of Cr.P.C. makes it clear that after receiving a warrant from the Court, the concerned police officer has first to take it either to the Executive Magistrate or to the officer in charge of the police station within local limits of whose jurisdiction he intends to execute the warrant and thereafter, he will get the authority to execute the warrant within that jurisdiction after getting the endorsement on the warrant. The exception has been provided under sub-section (3) which states that if the concerned police officer has reason to believe that by obtaining endorsement either from the Executive Magistrate or from the officer in charge of the police station, there would be delay and that would prevent the execution of warrant, the police officer can execute the warrant without any such endorsement beyond the local jurisdiction of the Court which issued it. Even though sub-section (3) provides for an exception but it is the bounden duty of the concerned police officer going to execute the warrant 16 to mention in the case diary the specific reasons for which he did not take the endorsement of either the Executive Magistrate or the officer in charge of the police station on the warrant within whose local limits of the jurisdiction, he attempted for executing the warrant. In other words, the arresting police officer must bring material on record to demonstrate that obtaining of such endorsement on the warrant would have prevented the execution of the warrant.
On perusal of the case diary, even though it is mentioned in a general manner that raids were conducted at several places under the jurisdiction of different police stations for apprehension of the accused persons, apart from fact that there is no specific mention that such raids were meant to arrest the petitioner, no copies of the station diary entries of the concerned police stations are available to show that the executing officer after getting the warrant from the Court of learned S.D.J.M., Puri approached any police station for execution of the warrant at any place within the local limits of such police station. The case diary is also silent that the warrants were produced before any Executive Magistrate or before the officer in charge of any police station within whose local limits the raids were alleged to have been conducted. There is no entry 17 in the case diary that the police officer entrusted to execute the warrant thought it proper not to take the endorsement of either the Executive Magistrate or the officer in charge of the police station believing that it would delay the execution of such warrant which would have otherwise prevented the execution. When section 82 of Cr.P.C. stipulates that the Court must have reason to believe that after the warrant was issued against the person, he has absconded or concealed himself somewhere so that warrant could not be executed for which he may direct for publishing a written proclamation, such belief must be based on concrete materials and in absence of such materials, the Court should not mechanically pass an order under section 82 of Cr.P.C. directing publishing a written proclamation. Law is well settled that when the statute provides something to be done in a particular manner, it should be done in that manner or not at all.
On perusal of the impugned order dated 05.08.2016, I am satisfied that there was no such clinching material before the learned S.D.J.M., Puri that raids were conducted specifically to apprehend the petitioner at different places on the basis of the warrant and in spite of that, the warrant could not be executed as the petitioner absconded or concealed himself. The petition which was filed before the learned S.D.J.M., Puri for issuance of 18 process under section 82 of Cr.P.C. is a one page petition which totally lacks particulars as to where the raids were conducted and for which accused and on what date and what was the result thereof. The petition has been filed in a very slipshod manner and such a petition should not have been entertained by the learned Magistrate in passing the impugned order. The affidavit filed by the Inspector in charge of Singhadwar Police Station on 14.02.2017 indicated that the corresponding station diary entry could not been obtained from the police station. The case suffered several adjournments but till date not a single copy of station diary entry was produced before this Court. The importance of station diary entry in the facts and circumstances of the case cannot be sidelined. In view of the fact that Rule 116 of Orissa Police Rules specifically indicates as to how the station diary entry is to be maintained and what information are to be recorded therein, the non-production of such entries along with the petition filed under section 82 of Cr.P.C. should be adversely viewed against the prosecuting agency.
In case of Dr. Santanu Kr. Parida -Vrs.- State of Orissa reported in 1999 (II) Orissa Law Reviews 191, it is held as follows:-
"4. On perusal of the records, it appears that the summons issued by the trial Court from time 19 to time had not been served and, in fact, the service returns were not back. Similarly, bailable warrant as well as non-bailable warrant issued against the petitioner had also remained unexecuted. From the lower Court records, it is not established that the petitioner had, in fact, avoided the process of Court after receiving the summons, or had evaded the execution of the warrants in any manner. In the absence of any categorical material, it was not open to the Magistrate to jump to a conclusion that the petitioner had deliberately avoided the process of Court and as such, issuance of N.B.W. or issuance of process under Sections 82 and 83, Cr.P.C. was uncalled for. Before taking any steps under Section 82 Cr.P.C., the Court has to be satisfied that the person against whom warrant had been issued had absconded or was concealing himself. In the present case, the Sub-Divisional Judicial Magistrate has nowhere come to the conclusion that the petitioner had, in fact, absconded or concealed. Since there was no justification for taking steps under Section 82, there was no scope for invoking the power under Section 83, Cr.P.C. and as such the action of the Sub-Divisional Judicial Magistrate in taking steps under Sections 82 and 83, Cr.P.C. cannot be sustained."20
In case of Antaryami Barik -Vrs.- State of Orissa reported in 2016 (I) ILR - Cuttack 959, it is held as follows:-
"3. Now, in this case it is apparent from the record that the learned S.D.J.M., Udala has observed that the I.O. has prayed to issue processes under Sections 82 and 83 of the Cr.P.C. against the petitioners. He further observed that both are residents of village Garadihi, P.S. Berhampur, District Balasore and as the accused persons are yet to be arrested though N.B.W. has been issued on 30.4.2005, in spite of several raids conducted by the I.O. and the accused persons are untraced. The learned S.D.J.M. was satisfied from the case diary that the O.I.C. has taken sincere steps to arrest the accused persons. Accordingly the learned S.D.J.M., Udala allowed the prayer. There is no finding by the learned S.D.J.M. that the persons have absconded or concealing themselves so that warrant cannot be executed. So the order issuing proclamation under sub-section (1) of Section 82 of the Cr.P.C. is not complied with.
4. Moreover, in order to issue an order of attachment of property of a person absconding under Section 83 of the Cr.P.C., the Court issuing a proclamation under Section 82 of the Cr.P.C., may, for reasons to be recorded in writing, at any time after the issue of the 21 proclamation, order the attachment of any property, movable or immovable, or both belonging to the proclaimed person, provided that the Court is satisfied 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. Only on satisfaction of such condition, the Court may order the attachment simultaneously with the issue of the proclamation. The order passed by the learned S.D.J.M., Udala is cryptic one. No reasons have been given in the order. It is also not apparent from the record that an affidavit has not been filed to the effect that the proclamation is about to dispose or remove the whole or any part of his property belong to him, the order cannot be sustained. It is well settled law of land that reason is the heartbeat of orders passed by the Court. Reasons always show the basis on which the learned Court came to a particular conclusion and absence of reasons in an order itself is violative of principles of natural justice."
The words 'has absconded or is concealing himself so that such warrant cannot be executed' as appearing in section 82 of Cr.P.C. are significant inasmuch as every person who is not 22 immediately available at a place cannot be characterized as an absconder and the Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions under section 82 of Cr.P.C. are mandatory in nature and are to be construed strictly. The expression 'reason to believe' as occurs in section 82 of Cr.P.C. suggests that the Magistrate must be subjectively satisfied that the person has absconded or has concealed himself on the basis of the materials before him. The processes of proclamation and attachment should not be issued whenever a warrant fails of its effect. If it is necessary, the officer sent to serve the warrant should be examined as to the measures adopted by him to serve it and if on his evidence, or in any other manner the Court is satisfied that the accused is evading justice, then and then only can the processes of proclamation and attachment be issued. The Magistrate must record the grounds which satisfied him that the accused was absconding and concealing him to evade justice.
In view of the above discussion, I am satisfied that the impugned order dated 05.08.2016 passed by the learned S.D.J.M., Puri is not sustainable in the eye of law and therefore, the same stands quashed.
23
7. For taking recourse to section 83 of Cr.P.C. regarding attachment of property of the absconding person, there must be material before the Court that after issuance of the proclamation, there was necessity for passing an order of attachment of the property either movable or immovable or both belonging to the proclaimed person and the reasons for passing an attachment order should be recorded in writing. Though the Court has power to issue an order of attachment of property at the time of issuance of proclamation but such order can be passed only when the Court is satisfied that the person is about to dispose of the whole or part of his property or to remove the whole or any part of his property from the local jurisdiction of the Court.
On perusal of the petition dated 16.09.2016 filed for attachment of property of the petitioner, it appears that the petitioner is involved in another case i.e. Singhadwar P.S. Case No.47 of 2008 dated 08.11.2008 under sections 341, 323, 294, 506 and 34 of the Indian Penal Code. It is further mentioned in the petition that the proclamation orders were promulgated and circulated at the residence and other conspicuous places and having regards to the facts on record, it was felt that the petitioner is by no means abiding the law and continue to be elusive to evade arrest and hoodwink the process of law. It was 24 prayed for issuance of order of attachment of the movable as well as immovable property belonging to the petitioner as there was every possibility that the petitioner might dispose of the whole or any part of the property and also remove the whole of the properties from the local jurisdiction of the Court.
Law is well settled that an order of attachment of property should not be passed in haste and without proper application of mind. The procedure laid down under section 83 of Cr.P.C. has to be followed strictly. The words 'at any time' as appears under section 83(1) of Cr.P.C. only mean that if after the issuance of proclamation, either of the two conditions mentioned in clauses (a) and (b) of the proviso to section 83(1) of Cr.P.C. comes into existence, an order of attachment can be made even without waiting for thirty days to expire as envisaged under section 82(1) of Cr.P.C. On fulfillment of either of the two conditions as mentioned in clauses (a) and (b) of the proviso to section 83(1) of Cr.P.C., order of attachment of property can be simultaneously passed with the issue of the proclamation. Even in such a case, the Magistrate has to record his reasons for arriving at judicial satisfaction that such condition as mentioned in the proviso to have come into existence. As it appears, the 25 petitioner has already entered appearance in the case before the learned S.D.J.M., Puri by executing Vakalatnama.
It is contended by the learned counsel for the petitioner that notice of appearance before the police officer as envisaged under section 41-A of Cr.P.C. should have been issued to the petitioner as the offences are punishable with imprisonment for a term which is less than seven years. Such notice can be given in cases where the police officer is of the view that the arrest of the person is not required even though such person has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine. Arrest cannot be made in such cases unless the police officer records his reasons in writing that any of the conditions stipulated under clauses (a) or (b) or (c) or (d) or (e) of section 41(1)(b)(ii) are satisfied for which arrest is necessary. In the case in hand, since the accused persons alleged to have committed cognizable offences in the presence of police officer, the police officer can arrest them without the order from a Magistrate and without a warrant in view of section 41(1)(a) of Cr.P.C. Therefore, in the facts and circumstances of the case, 26 notice of appearance before the police officer as envisaged under section 41-A of Cr.P.C. is not mandatory.
However, since I have already held that there was no justification for taking recourse to process under section 82 of Cr.P.C., there was no scope for the Magistrate for invoking power under section 83 of Cr.P.C.
Judicial discretion cannot be arbitrary but must be a result of judicial thinking which implies vigilant circumspection and care. It should be sound and reasonable and should not be used in a fanciful and whimsical manner.
Accordingly, both the revision petitions are allowed. The impugned orders dated 05.08.2016 and 05.11.2016 passed by the learned S.D.J.M., Puri and the consequential order dated 19.11.2016 passed by the Deputy Supdt. of Police, City, Puri are hereby set aside.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 23rd March, 2017/Sukanta/Kabita