The High Court · 2023
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1783 of 2023 An application under Section 482 of the Code of Criminal Procedure, 1973. Bapan Sarkar …. Petitioner State of Orissa …. Opp. Party -versus- For Petitioner : Mr.Haripad Mohanty, Advocate For Opp. Party : Ms. Saswata Patnaik, Addl. Government Advocate CORAM: JUSTICE SAVITRI RATHO ……….………………………………………………………………….. Date of Judgment : 3rd November 2023 …………………………………………………………………………… Savitri Ratho, J. This application under Section 482 of Cr.P.C. has been filed by the petitioner challenging the order dated 05.03.2021 passed by the learned Special Judge, Baliguda in C.T. Case No.25 of 2020 arising out of K.Nuagaon P.S. Case No.30 dated 10.06.2020, taking cognizance of offences punishable under Sections 20 (b) (ii) (C)/29 of the N.D.P.S. Act and order dated 31.05.2021 issuing N.B.Ws. and process under Sections 82 and 83 of the Code of Criminal Procedure (in short “Cr.P.C”) against CRLMC No.1783 of 2023 Page 1 of 22 //2// the petitioner and one Snehasis Sanyal. When the matter was heard on 04.08.2023 , Mr Mohanty learned counsel for the petitioner confined his prayer to order dated 31.05.2021 and did not press the challenge to the order of cognizance dated 05.03.2021. 2. The prosecution case in brief is that on 09.06.2020 at about 8.10 pm, the informant and his staff were performing night patrolling duty at Puruna Nuagaon Area , they got information that a Mahindra Bolero Max pick Up vehicle bearing No.WB-57-B-9682 was coming loaded with ganja. They signaled it to stop but it took a right turn towards Daringbadi. They chased it found the vehicle proceeding towards Daringbadi. On the way after passing through a sub way near the bridge under construction, due to rash and negligent driving of the driver, the vehicle slipped and could not move further. All the four persons in the vehicle tried to run away and the informant after a good chase could catch hold of two persons – Choton Sk and Jayalal Ansari who belong to West Bengal . They disclosed the names of the persons who escaped as Minarul Sk of West Bengal and Naresh Digal and stated that they were transporting ganja by concealing them under the potato bags. They also revealed that the uncle of Minarul Sk. had financed the deal and had transacted the money through account payment through two accounts. On search 26 polythene packets wrapped with cello tape containing ganja, concealed CRLMC No.1783 of 2023 Page 2 of 22 //3// under 10 potato bags were recovered from the dala of the Bolero. The ganja was in a wet condition. The total weight of ganja came to 131 kgs and 700 grams, excluding the bag. The accused persons and ganja were taken to the K. Nuagaon Police Station and written report was lodged. It
Facts
was stated in the FIR that the identity of the financier was yet to established. On basis of the written complaint, K.Nuagaon P.S. case No 30 of 2020 was registered against Choton Sk. Jayalal Ansari, Minarul Sk and Naresh Digal under Section 20(b) (ii) (C) / 27-A/29 of the NDPS Act.
Legal Reasoning
relying on the decisions of the Supreme Court and this Court in State of U.P. v. Poosu and another : 1976) 3 SCC 1 ; Raghunath Das v. Hari Mohan Pani : 1988) 1 OCR 136 ; Inder Mohan Goswami and another v. State of Uttaranchal and others : (2007) 12 SCC 1 ; Raghuvansh Dewanchand Bhasin v. State of Maharashtra & another : (2012) 9 SCC 791 ; and Vikas v. State of Rajasthan :, (2014) 3 SCC 321 has held as follows : “8. From a reading of these decisions, it is crystal clear that in view of its disastrous consequences on the personal liberty of an individual, NBW should not be issued mechanically. As the courts derive their “source and sustenance” from the Constitution, which, guarantees the right to life and personal liberty to its citizens under Article 21 and also imposes a duty on the Courts to protect the liberty of the citizens, the Court should be extremely cautious while issuing NBW and should do so only after considering the totality of the facts and circumstances and only after the “Court is fully satisfied that the accused is avoiding the Court’s proceeding intentionally”.” CRLMC No.1783 of 2023 Page 20 of 22 //21// 9. The impugned order does not reveal that the learned S.D.J.M. had received or called for any report from the police regarding non-execution of the bailable warrant . Nor does the order reveal that the learned S.D.J.M. was satisfied that the accused was avoiding the Court’s proceedings intentionally. The impugned order issuing NBW is therefore liable for interference .” The decision in Neharika Infrastructure ( supra) is not relevant for deciding this case as in that case the Appellant therein had challenged the interim order passed in an application under Section – 482 Cr.P.C, protecting the accused from coercive action. 12. After carefully going through the provisions of Section – 82 and 83 of the Cr.P.C , the decisions referred to above and the submissions of the counsel , the application filed by the I.O and the impugned order , I am satisfied that the order issuing NBW , process under Section - 82 and 83 of the Cr.P.C is vulnerable and liable for interference. The impugned order dated 31.05.2021 passed by the learned Additional District and Sessions Judge –cum- Special Judge , Balliguda in C.T. Case No. 25 of 2020 issuing NBW, process under Section – 82 and 83 of the Cr.P.C against the petitioner is therefore set aside. 13. In order to secure the presence of the petitioner in the case, it is directed that if the petitioner surrenders in the Court of the learned Special Judge, Baliguda in C.T. Case No.25 of 2020 arising out of CRLMC No.1783 of 2023 Page 21 of 22 //22// K.Nuagaon P.S. Case No.30 of 2020 on or before 03.12.2023 and files an application for bail , the same shall be considered in accordance with law on the same day. It is open to the petitioner to submit supporting documents in support of his plea of parity with co accused Snehasis Sanyal who has been released on bail pursuant to order passed by this Court , which shall also be considered in accordance with law.
Arguments
3. Mr.Haripad Mohanty, learned counsel for the petitioner submits that initially the petitioner was not named in the FIR and was not an accused in the case. He had been issued notice under Section 160 Cr.P.C. on 25.03.2021 to explain under what circumstances so much money had been transferred to the account of the drag traffickers from his account. The copy of the notice has been annexed as Annexure-4 to this application. He was unable to appear in response to the said notice. On 31.05.2021, on the prayer of the I.O for issuance of N.B.W and process under Section 82 and 83 of the Cr.P.C against him and co accused Snehashis Sanyal, N.B.W and processes under Section 82 and 83 of the Cr.P.C have been mechanically issued against them on the same day without recording of subjective satisfaction as required by law. He submits that mere non appearance before the police in response to notice CRLMC No.1783 of 2023 Page 3 of 22 //4// under Section – 160 Cr.P.C or for that matter even before the Court cannot be a ground to issue NBW, and / or process under Section 82 and 83 of the Cr.P.C without any material before the Court that he was deliberately avoiding to appear or there was any chance of his disposing his property. He further submits that NBW and processes under Section – 82 and 83 of the Cr.P.C could not have been issued against him without the ingredients / requirements for issue of NBW and processes not being fulfilled for which the non bailable warrant and processes issued against him are liable to be quashed. He also submits that the impugned order issuing process under Section 82 and 83 of the Cr.P.C simultaneously alongwith the NBW is perse illegal and liable to be quashed. His additional submission is that pursuant to order dated 22.11.2021 passed in ABLAPL No.13189 of 2021 by this Court, Snehasis Sanyal has been released on bail and the petitioner stands on the same footing as him so far as allegations in the case are concerned, but prayer of the petitioner in ABLAPL No.13640 of 2021 was rejected as at that time he could not produce the documents in support of his submission that the funds transferred to the account of the main accused through the petitioner , did not belong to him. He has in the meanwhile obtained the supporting documents and annexed them to this application for consideration of the Court. He submits that although the petitioner is willing to appear before CRLMC No.1783 of 2023 Page 4 of 22 //5// the learned trial court and move an application for bail alongwith these materials in support of his innocence before the said Court, as because NBW of arrest and process under Section 82 and 83 of the Cr.P.C have been issued against him, the Court below will remand him to custody mechanically. He has relied on the decisions in the case of M/s Neeharika Infrastructure Pvt. Ltd.v. State of Maharashtra and others (2021) SCC online SC 315 and Inder Mohan Goswami & Another vs. State Of Uttaranchal & Others (2007) 12 SCC 1 in support of his submissions. 4. Ms. S. Patnaik, learned Addl. Govt. Advocate submitted that as the petitioner had not turned up for investigation in spite of being served notice under Section 160 of the Cr.P.C., the I.O. apprehended that he would abscond for which he rightly filed application for issue of NBW and process under Section 82 and 83 Cr.P.C. She has filed the copy of the instructions of the I.O. dated 03.08.2023 enclosing the copy of the application filed by the I.O. before the learned Special Judge praying for issuing of N.B.W. and process under Sections 82 and 83 Cr.P.C. against the petitioner and co accused Snehashis Sanyal. She submits that case diary, notices under Section 160 Cr.P.C., zimanama, soliciting of instructions to the S.B.I., requisition to Branch Manager SBI, K Nuagaon CRLMC No.1783 of 2023 Page 5 of 22 //6// had been placed before the learned Special Judge and the impugned order does not call for any interference. 5. The provisions of Section- 82 and 83 of the Cr.P.C. are extracted below: Section – 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 publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation. 2. The proclamation shall be published as follows— (i) a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village; c) a copy thereof shall be affixed to some conspicuous part of the Court house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. 3. A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of Sub-Section (2), shall be conclusive evidence that the requirements of this section have CRLMC No.1783 of 2023 Page 6 of 22 //7// been complied with, and that the proclamation was published on such day. 4. Where a proclamation published under Sub-Section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 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. 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).” Section -83 Attachment of property of person absconding: 1. The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person; Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, 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. It may order the attachment simultaneously with the issue of the proclamation. 1. Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; CRLMC No.1783 of 2023 Page 7 of 22 //8// and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. 2. If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made— a) by seizure; or b) by the appointment of a receiver; or c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or d) by all or any two of such methods, as the Court thinks fit. 1. If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases— a) by taking possession; or b) by the appointment of a receiver; or c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or d) by all or any two of such methods, as the Court thinks fit. CRLMC No.1783 of 2023 Page 8 of 22 //9// 2. If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court. 3. The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).” 6. From a reading of sub-section (1) of Section 82 Cr.P.C., it is apparent that that if a Court has 'reason to believe' that a person, despite issuance of warrant against him or her, is concealing or absconding for which the warrant cannot be executed, the Court may publish a written proclamation requiring the person to appear at a specified place and time, which should not less than 30 days from the date of publication of such proclamation. It is also apparent that such person must be aware that warrant has been issued against him and is intentionally avoiding execution of the warrant by concealing himself/ herself or by absconding. The 'reason to believe' or reasons to believe should therefore necessarily be apparent from the material / application placed before the Court . As per Section 82(4) of the Cr.P.C., before declaring a person as a proclaimed person or offender , the Court has to satisfy itself that the steps indicated in Section 82(1) Cr.P.C. have been followed by making such inquiry as it thinks fit. So it imperative that the concerned Court CRLMC No.1783 of 2023 Page 9 of 22 //10// either after taking evidence or without taking evidence, must record the reasons of its belief that the person against whom warrant was issued has absconded or concealed himself for which the warrants could not or cannot be executed. 7. Perusal of the application of the Investigating Officer reveals that a joint prayer has been made for issue of NBW and process Section 82 and 83 Cr.P.C. as the petitioner and co-accused did not respond to the notice under Section 160 Cr.P.C. The relevant portion of the application is extracted below:- “ With reference to the subject cited above I have the Honour to submits that during course of investigation on analysis of Bank statement of accused person Sunil Digal S/o-Sadan Digal of Gebapadar, P.S.-Baliguda, Dist-Kandhamal vide his A/C No. 37614672510 it is learnt that an amount of Rs.2,15,500/- was transferred to his account from the account of Bapan Sarkar S/o- Kamal Sarkar of village-Rajpur, P.O.-HagalBaria, Dist-Nadia, (W.B.) from his A/C No. 34984313896 before registration of this case. Similarly on analysis of the Bank statement of accused person Naresh Digal S/o-Sadan Digal of Gebapadar, Sindrigaon, P.S.-Baliguda, Dist-Kandhamal vide his A/C No. 37819792210 it is learnt that an amount of Rs.1,00,000/- was transferred to his account from the account of Snehasish Sanyal S/O- Manindra Kumar Sanyal vill-Bhatsala, P.O.-Basantpur, P.S.-Domkal, Dist- Murshidabad, (W.B.) From his account number 33313282907 CRLMC No.1783 of 2023 Page 10 of 22 //11// before registration of this case. As the ganja loaded vehicle was proceeding to Kolkata, while detected, and accused persons Sunil Digal S/o-Sadan Digal of Gebapadar,, P.S.-Baliguda, Dist- Kandhamal along with Naresh Digal S/o-Sadan Digal of Gebapadar, Sindrigaon, P.S.-Baliguda, Dist-Kandhamal absconded from the ganja loaded vehicle as stated by the arrested accused persons of West Bengal side and during analysis of the Bank statement it was ascertained that Bapan Sarkar S/o-Kamal Sarkar of village-Rajpur, P.O.-HagalBaria, Dist-Nadia. (W.B.) and Snehasish Sanyal S/o- Manindra Kumar Sanyal vill-Bhatsala, P.O- Basantpur, P.S.- Domkal, Dist-Murshidabad, (W.B.) have transferred so much money to the account of the accused persons prior to registration of this case. “Hence both of them namely (1) Bapan Sarkar S/O- Kamal Sarkar of village-Rajpur, P.O.-HagalBaria, Dist-Nadia. (W.B.) and (2) Snehasish Sanyal S/O- Manindra Kumar Sanyal vill-Bhatsala, P.O.-Basantpur, P.S.-Domkal, Dist-Murshidabad, (W.B.) were served with notice U/S 160 Cr.P.C. to explain under which circumstances they transferred so much of money to the ganja traffickers. But they did not respond to the notice which shows that they have complicity in this case and they have financed the ganja business as mastermind and kingpins of this case. Under the above circumstances, I pray that orders may kindly be passed for issue of NBW and process U/S 82 and 83 of Cr.P.C. against the absconding accused persons namely (1) Bapan Sarkar S/O Nadia -741122 (W.B.) and (2) Snehasis Sanyal S/O-Manindra Singh Sanyal, village-Bhatsala Colony, P.O.- CRLMC No.1783 of 2023 Page 11 of 22 //12// Basantpur, P.S.-Domkal, Dist-Murshidabad, 742406 (W.B.) to compel their appearance in the Hon’ble court and oblige.” 8. Final chargesheet dated 14.06.2021 has been submitted against the co accused persons Choton Sk , Jayalal Ansari , Naresh Digal , Sunil Digal ( against whom preliminary chargesheet had earlier been filed ) and against Snehashis Sanyal and the petitioner Bapan Sarkar under Section 20 (b ) (ii)( C ) / 29 of the NDPS Act . But before that, the Investigating Officer has filed the application praying for issue of NBW , process under Section – 82 and 83 of the Cr.P.C against the petitioner and co accused Snehashis Sanyal . It has been mentioned in the application that as the petitioner and co accused Snehasish Sanyal did not respond to the notice under Section 160 Cr.P.C , they have complicity in this case and have financed the ganja business as mastermind and kingpins of this case for which orders may be passed for issuing process against them under Section – 82 and 83 of the Cr.P.C . It is apparent that without trying to find out if notice under Section – 160 of the Cr.P.C had been on duly served on the petitioner and co accused and the reason for their non appearance , or if there was any material a) to believe that they would not voluntarily appear in court, or b) they were unable to find them to serve a summon or that c) they would harm somebody if not taken into custody immediately, NBW has been issued. CRLMC No.1783 of 2023 Page 12 of 22 //13// 9. Similarly , the contents of the application filed by the I.O , do not reveal existence of any of the requirements of Section 82 (1) and Section 83 (1), so as to justify issue of proclamation or order for attachment of the property. There was nothing before the Court that the petitioner had absconded or concealed himself after warrant was issued as warrant had not been issued earlier and was in fact issued by the same order. The I.O. had also not stated that the petitioner had absconded on concealed himself so that such warrant cannot be executed. Under Section 82 (1) normally, only after 30 days of issuance of written proclamation requiring the petitioner to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation, could the Court issue an order for the attachment of any property, movable or immovable, or both, belonging to the proclaimed person. In the present case the order for attachment has been issued on the same day. As per the proviso to Section – 83 (1), order of attachment under Section 83 (1) can be issued alongwith order under Section 82 (1) where at the time of the issue of the proclamation, the Court is satisfied, by affidavit or otherwise, that the accused was about to dispose of the whole or any part of their property or was about to remove the whole or any part of his/her property from the local jurisdiction of the Court. CRLMC No.1783 of 2023 Page 13 of 22 //14// 10. It appears that co- accused Snehasish Sanyal has been granted bail pursuant to order dated 22.11.2022 passed in ABLAPL No.13189 of 2021 by this Court (he had been directed to be released on bail on surrendering before the learned Additional Sessions Judge , Balliguda and filing an application for bail). Naresh Digal has been granted bail pursuant to order dated 27.01.2021 passed in BL APL No. 4652 of 2020 (under Section – 167 ( 2 ) of the Cr.P.C) . Jayalal Ansari has been granted bail pursuant to order dated 26.11.2021 passed in Crl. Revision No. 495 of 2020 under Section – 167 ( 2 ) of the Cr.P.C . Choton Sarkar has been granted bail pursuant to order dated 26.11.2021 passed in Crl Revision No. 496 of 2020 under Section – 167 ( 2 ) of the Cr.P.C . perusal of the final chragsheet dated 14.06.2021 reveals that preliminary chargesheet had been submitted against Choton Sk , Jayalal Ansari , Naresh Digal and Sunil Digal showing Sunial Digal to be an absconder and final chargesheet dated 14.06.2021 has been submitted Choton Sk , Jayalal Ansari , Naresh Digal, Sunil Digal, Snehashis Sanyal and the petitioner Bapan Sarkar under Section 20 (b0 (ii)(C)/29 of the NDPS Act declaring Sunil Digal , Snehashis Sanyal and the petitioner Bapan Sarkar as absconders on the basis of which cognizance of the offences have been taken against them. CRLMC No.1783 of 2023 Page 14 of 22 //15// 11. The Supreme Court in the case of Inder Mohan Goswami ( supra) has emphasized that issuance of non-bailable warrants interferes with personal liberty for which the Courts should be extremely careful before issuing non-bailable warrants. The Supreme Court has held that warrants, either bailable or non-bailable, should never be issued without proper scrutiny of facts and complete application of mind. The relevant portion of the judgment is extracted below : “ Personal liberty and the interest of the State . 50. Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely CRLMC No.1783 of 2023 Page 15 of 22 //16// important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued 53.Non-bailable warrant should be issued to bring a person to court when summons of 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. CRLMC No.1783 of 2023 Page 16 of 22 //17// 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 courts 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. 56. The power being discretionary must be 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 straight-jacket 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. 57. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.” . In Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791, the Supreme Court has laid down the following guidelines to be adopted in all cases where non - bailable warrants are issued by the Courts: CRLMC No.1783 of 2023 Page 17 of 22 //18// “28.1. All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for; 28.2. Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant; 28.3. The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon; 28.4. The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein; 28.5 Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process; 28.6. No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the concerned case; CRLMC No.1783 of 2023 Page 18 of 22 //19// 28.7. A register similar to the one in para 28.5 supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution; 28.8. Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long; 28.9 On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-charge of the concerned agency; 28.10. The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse; 28.11. In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and 28.12. In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned CRLMC No.1783 of 2023 Page 19 of 22 //20// unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.”… In the case of Bimal Kumar Agarwalla v. State of Odisha and another reported in (2023) 92 OCR 265 : 2023 (II) ILR 215: this Court
Decision
14. The CRLMC is accordingly disposed of. …………….……. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 3rd November 2023 /Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 24-Nov-2023 21:32:13 CRLMC No.1783 of 2023 Page 22 of 22