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Showing contexts for: proclamation crpc in Sambhu Haldar vs State Of West Bengal on 24 February, 2014Matching Fragments
For the State : Mr. Ayan Bhattacharyya, Adv. Heard on : 24.02.2014 Judgement on : 24.02.2014
Joymalya Bagchi, J. : This reference has been made owing to difference in opinion between two Hon'ble Judges of this court in the matter of disposal of an application for anticipatory bail in connection with Bongaon Police Station case No.350 dated 03.07.2011 under Sections 147/148/149/333/325/326/353/307/427 /34 of the Indian Penal Code and Sections 3 and 4 of the P.D.P.P Act. The facts of the case is that on 3rd July, 2011 at about 10 p.m., an unruly mob being agitated over the death of a young girl, who died while giving birth, purportedly due to medical negligence ransacked the medical institution and also attacked police personnel causing injuries upon them as well as damage to public property. The petitioner and two others were named as accused persons in the first information report. The petitioner was not arrested in the course of investigation and in conclusion thereof charge sheet was filed wherein the police showed him as an absconder and prayed for issuance of warrant of arrest, proclamation and attachment. It, however, appears from the records that the Magistrate has not declared the petitioner as a proclaimed offender by issuing proclamation against him under section 82 of the Code of Criminal Procedure. Warrant of arrest, however, was issued against the petitioner on the prayer of the investigating agency. The petitioner applied for pre‐arrest bail in October, 2013. After hearing the parties, an Hon'ble Division Bench of this Court differed in granting of relief to the petitioner. While Mhatre, J., was of the opinion that the petitioner may be granted pre‐arrest bail, Chatterjee, J., was of the view that the application was liable to be rejected.
In the instant case the petitioner admittedly has not been declared an absconder and neither proclamation had been issued against him under section 82 of the Code of Criminal Procedure. Chatterjee, J, however opined that as prayer for warrant, proclamation and attachment had been made by the investigating agency, it was the duty of the Magistrate to issue the same and the petitioner could not be permitted to take advantage of such lapse.
It is trite law that there cannot be a simultaneous issuance of warrant and proclamation against an accused. Section 82 of the Cr.PC reads as follows :‐ "82.Proclamation for person absconding.‐ (1) 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 public 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.
(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).
Proclamation under section 82 of the Code of Criminal Procedure may be issued only when a Court has reason to believe that a person against whom warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed. Upon arriving at such satisfaction, the Magistrate shall direct publication of proclamation against the accused calling upon him to appear at a specified place and time not less than thirty days from the date of such publication. In the event the accused fails to appear on that specified time & place as per the proclamation, the Court may after due enquiry, as it thinks fit and proper, declare him to be a proclaimed offender provided he is accused of offences as enumerated in sub‐section (4) of Section 82. Admittedly, the aforesaid procedure has not been resorted to in the instant case. That apart, bearing in mind the offences alleged in the FIR there is no scope of invocation of sub‐section (4) of Section 82 Cr.PC to declare the petitioner a proclaimed offender.
Such being the position, I hold that the condition precedent for issuing proclamation against the petitioner under Section 82 (1) Cr.PC is singularly absent in this case. The Magistrate cannot be said to have derelicted his duty in this regard nor can the petitioner be said to have taken advantage thereof in seeking the relief of anticipatory bail.
Next comes the issue of delay in seeking relief.
Merely because an accused has approached the Court with a prayer for pre‐arrest of bail belatedly it cannot be presumed that he was absconding or concealing himself. Chatterjee, J, held as the petitioner had approached this Court more than two years after registration of the first information report (wherein he was named) it would be presumed he was "sitting on the fence"