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10. On 08.02.2018, warrant of arrest has been issued. The order has already been quoted above. From the aforesaid order, I find that as the accused was absent, the Court issued non-bailable warrant of arrest against the accused. Warrant is issued in terms of Section 73 of the Code. Now the question is whether the aforesaid order fulfils the condition laid down under Section 73 of the Code of Criminal Procedure or not. Section 73 of the Code reads as follows: -

73. Warrant may be directed to any person. - (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

11. From a reading of the aforesaid provision of law, I find that a Magistrate has jurisdiction and power to issue warrant of arrest, which can be directed against any escaped convict, proclaimed offender, against any person who is an accused of a non-bailable offence and is evading arrest. Thus, person against whom warrant of arrest can be issued, must fall in either of the aforesaid three categories. Admittedly, in the case in hand, when warrant of arrest was issued, these petitioners were neither an escaped convict nor a proclaimed offender. They can, at best, fall in the third category, i.e., "an accused of a non-bailable offence and is evading arrest". So, it can be presumed that Court has issued warrant on the ground that the petitioners are accused of non-bailable offence. Only being an accused of a non-bailable offence is not a ground to issue warrant of arrest, as per the provisions of Section 73 of the Code. The said accused, who is wanted in a case involving a non-bailable offence, must also be evading his arrest. The word 'and' used in Section 73(1) of the Code is a conjunctive clause. Thus, both the conditions should simultaneously exist to enable the Court to issue warrant of arrest. This position of law should have been considered by the Court while issuing a warrant of arrest. This means that a person not only should be an accused of an offence, non-bailable in nature, but also should be found evading his arrest. There is nothing in the impugned orders to suggest that the petitioners were evading arrest.

This is a penal clause as a "proclaimed offender" becomes an accused punishable in terms of Section 174A of the Indian Penal Code. This is a separate offence by itself. He can be tried, convicted and punished for a term, which may extend to 7 (seven) years and also shall be liable to payment of fine.

20. When violation of any procedure of law attracts a penal provision (herein declaration as proclaimed offender), the procedure, which seeks to declare him an offender, has to be strictly followed and cannot be relaxed. This penal provision makes compliance of Section 82(3) of the Code mandatory in nature. In this regard it is necessary to refer a judgment of Hon'ble Supreme Court. The Supreme Court in the case of Securities and Exchange Board of India versus Gaurav Varshney and Another reported in (2016) 14 SCC 430 (para 32.5) has held as under: -

31. Further, from the aforesaid provision of law, it is clear that attachment order under Section 83 of the Code can be issued to attach the property belonging to the proclaimed person. Statement to the effect that the proclamation was duly published has to be made in terms of Section 82(3) of the Code, which provides that the Court has to record a statement in writing to the effect that the proclamation was duly published on the specified date in the specified manner as provided in Clause (i) of sub section (2) to Section 82 of the Code. This statement of the Court, which is to be recorded as per the statute, is a conclusive evidence that the requirement of law has been complied with, which is a pre-requisite for declaring a person a proclaimed offender/person absconding. Without recording the aforesaid statement in writing to the effect that the requirement of Section 82 of the Code has been complied with, a person cannot be declared to be a proclaimed offender/absconder, an attachment order in terms of Section 83 of the Code cannot be issued.