The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 3420 of 2023 (An application under Section 482 of Cr.P.C.) AFR Ajay Mohanty @ Tutu ...… Petitioner --------------- -Versus- State of Odisha & Another .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/S. K.K.Mohapatra, U.K.Mohapatra & S.Palatasingh, Advocates. For Opp. Party : Mr. S.K.Mishra, Additional Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 26th September, 2023 SASHIKANTA MISHRA, J. The petitioner is the complainant in 1 CC No. 557 of 2022 filed by him in the Court of learned JMFC (C), Cuttack under Section 138 of N.I. Act in which the present opposite party No. 2 is the accused. 2. In view of the point involved in the present case, the facts leading to filling of the complaint need not be gone into Page 1 of 10 detail. It would suffice to state that on request of the accused the petitioner claims to have given him a loan of Rs. 2,00,000/- in cash for construction of his house. As per the written agreement executed between them, the accused issued a cheque towards repayment of the amount which was dishonoured by the concerned bank on the ground of insufficiency of funds. After complying with the relevant statutory provisions, the petitioner filed the complaint on 10.10.2022. On 27.10.2022, the Court below took cognizance of the offence under Section 138 of N.I. Act and issued summons to the accused. Such notice was found to have been validly served on the accused as per the postal tracking report received by the Court below. In view of non- appearance of the accused pursuant to such summons, the Court below, by order dated 02.02.2023 issued conditional bailable warrant (CBW) against the accused. Since the warrant did not yield any result the Court below, by order dated 04.04.2023 directed issuance of NBW against by the accused by recalling the CBW. This also did not yield any result. The petitioner therefore filed an application in the Court below on 11.07.2023 with prayer for issuing Page 2 of 10 proclamation and attachment of property of the accused under Sections 82 and 83 of Cr.P.C. On the same day, the Court below rejected the prayer of the petitioner on the ground that the stipulated period of one year has not yet been elapsed with reference to Rule 326(b) of GRCO(Crl.) Vol.1. Said order is impugned in the present application, filed under Section 482 of Cr.P.C. with prayer to quash the same.
Legal Reasoning
3. Heard Mr. K.K. Mohapatra learned counsel for the petitioner complainant and Mr. S.K.Mishra learned Additional Standing Counsel for the State. 4. Having regard to the point of law involved and the order proposed to be passed it was not felt necessary to issue notice to the accused leaving it open to him to seek variance of the order in future, if he so is advised. 5. Mr. Mohapatra, learned counsel for the complainant- petitioner submits that the Court below committed an error of law in referring to the provision under Rule 326 of GRCO (Crl.) which is not applicable to the facts of the case at all. Mr. Mohapatra further argues that as per the scheme of the Cr.P.C. the Court is required to first issue summons to the accused followed by warrant of arrest. If these modes are Page 3 of 10 found not fruitful then proclamation and attachment of the property can be ordered. In the instant case the summons issued was duly served but the accused did not respond. The conditional bailable warrant issued by the Court below also did not yield the desired result. Therefore, the next option available for the Court is to issue proclamation and attachment as provided under Sections 82 and 83 of Cr.P.C. According to Mr. Mohaptra, this is a case where the accused has deliberately absconded only to frustrate the execution of warrant of arrest and therefore unless he is compelled to appear, the case of the complainant against him would be rendered infructuous. 6. Mr. Mishra on the other hand fairly submits that the reference to the provision under Rule 326 of GRCO (Crl.) by the Court below is misconceived because the same relates to sending of records to the dormant file where the accused, despite issuance of warrant and the process under Section 82 and 83 is unable to be apprehended. 7. It would be relevant to refer to Section 204 of Cr.P.C. which deals with the issue of process. The provision is quoted hereunder. Page 4 of 10 204. Issue of Process: 1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) A summons-case, he shall issue his summons for the attendance of the accused, or (b) A warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87. 8. In the instant case, the Court below deemed it proper to issue summons for the attendance of the accused. Said summons having been ignored by the accused, a conditional bailable warrant was issued. Chapter-VI of the Cr.P.C. deals with the processes to compel appearance Part A whereof relates to summons containing the provisions under Sections 61 to 69. Part B relates to warrant of arrest commencing from Section 72 to Section 81 Part C relates to proclamation Page 5 of 10 and attachment containing the provisions Sections 82 to 86. Section 82 and 83 read as under : 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 specified 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 homestead 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 been complied with, and that the proclamation was published on such day. 50 1 [(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).] 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. (2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such Page 6 of 10 person without such district when endorsed by the District Magistrate within whose district such property is situate. (3) 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. (4) 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. (5) 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. (6) 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). 9. It is clear that in order to invoke Section 82 two conditions need to be satisfied namely (i) abscondance of the accused, (ii) deliberate concealment by the accused of himself to avoid execution of warrant. It is also well settled that the power of issuing a proclamation under Section 82 can be exercised by a Court only in respect of a person against whom a warrant has been issued by it. In other words, unless the Court first issues a warrant, the provisions of Section 82 and the other Sections that follow in that part cannot be invoked in a situation where inspite of it’s best efforts police cannot arrest a person under Section 41. The above view was taken by the Supreme Court in the case of Page 7 of 10 State Through CBI Vs. Dawood Ibrahim Kaskar & Others, reported in AIR 1997 SC 2494. Since the Court below has referred to a purported time stipulation of one year after issuance of warrant, it would be proper to note that neither Part B nor Part C provide for any such time stipulation either for execution of the warrant so issued or for invoking the power under Sections 82/83 of Cr.P.C. It would suffice if the Court is satisfied that the person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed. In the instant case, a summons was duly served upon the accused but he did not respond. A Conditional bailable warrant was issued but the same also did not yield the desired result and then NBW was issued but the same has also not yielded the desired result. Under such circumstances, the Court below instead of waiting indefinitely for the NBW to be executed can always take recourse to the next step that is, issuance of proclamation and attachment as envisaged under Sections 82 and 83 of Cr.P.C. 10. Coming to the impugned order this Court finds that the Court below has referred to the provision under Rule 326. Page 8 of 10 Said provision occurs under Chapter-II under the heading ‘Dormant File’. Rule 326 read as follows: “Dormant file- Records of the following categories of cases shall be transferred to the “Dormant File” and from the date of such transfer they shall not be shown in any periodical returns. (b) (a) All cases where action has been taken under Sections 82 and 83, Criminal Procedure Code and evidence of witnesses, if any, for the prosecution has been recorded under Section 299 of the Code of Criminal Procedure. In cases where during a period of one year from the first date of issue of process, repeated attempts to serve summons and warrants have failed on account of the fact that the whereabouts of the accused is not known and the prosecution is unable to furnish any further particulars about the whereabouts of the accused. (c) In police cases where action under Sections 82 and 83, Criminal Procedure Code has been the proclamation and attachment have not been effected by the police during a period of three months from the date of issue of such proclamation and attachment. Where the address of the accused is not furnished by the prosecution within a period of three months from the date of institution of the case.” taken, but (d) 11. This Court fails to understand as to how this provision can be made applicable to the facts of the present case inasmuch as the same relates to sending of records of certain cases to the dormant files where all possible steps to procure/compel the attendance of accused including proclamation and attachment under Sections 82 and 83 have remained unfruitful. The present case involves steps taken/to be taken further to the summons, CBW and NBW to compel the attendance of the accused. Clearly, the trial Court Page 9 of 10 completely mis-directed itself in referring to the above provision of G.R.CO. This Court therefore, finds considerable force in the submission of learned counsel for the petitioner that reference to Section 326 (b) of G.R.C.O.is entirely misconceived. 12. Thus, from a conspectus of the analysis of facts and law referred hereinbefore, this Court finds that the valuable right of the complainant to validly prosecute his complaint has been thwarted by the inaction of the Police authorities in executing NBW against the accused as also the unjustified refusal of the Court below to invoke the power conferred by the provision under Sections 82/83 of Cr.P.C. 13. For the foregoing reasons therefore, the CRLMC is
Decision
allowed. The impugned order is set aside. The Court below is directed to issue process under Sections 82/83 of Cr.P.C. forthwith if in the meantime, the NBW issued against the accused has not been executed. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, 26th September, 2023/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC, Cuttack Date: 05-Oct-2023 11:13:59 Page 10 of 10