State of U.P v. Party

324, 325 I.P.C., arising out of Case Crime No.36 of 2022, Police Station Karma, District Sonbhadra, pending before the Court of Additional Chief Judicial Magistrate, Sonbhadra.

3. It is submitted by learned counsel for applicant that in the aforesaid case applicant was granted bail by this Court vide order dated 06.07.2022 and thereafter he was appearing before the trial court. Applicant is working in 'Indian Army' and he has joined his posting in 'Jammu & Kashmir' but his counsel could not move an application for exemption. Due to these reasons, non-bailable warrants were issued against him. It was submitted that by impugned order dated 30.07.2025, non-bailable warrants as well as process under Section 82 and 83 Cr.P.C. have been issued simultaneously without following the settled position of law. No reasons have been assigned for issuance of process under Section 2 NA528 No. 31301 of 2025 82 and 83 Cr.P.C. simultaneously. No notice or bailable warrants have been served upon applicant. Referring to these facts, it was submitted that the impugned order is against law and liable to be quashed. It was further submitted that as non-bailable warrants are being issued against applicant since last several dates thus applicant may be granted some time to appear before the trial court and interim protection till then.

4. Learned A.G.A. opposed the application.

5. I have considered the submissions and perused the record.

6. Provisions of Section 82 Cr.P.C read as under:- "Section 82. Proclamation for person absconding.-(1) 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 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. (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, 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. 3 NA528 No. 31301 of 2025 (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)."

7. In case of Indra Mani Pandey Vs. State of U.P. (Application under Section 482 Cr.P.C. No.25200 of 2012), decided on

05.10.2012, this Court has held as under:- "The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:- (i) issuing of a proclamation (Sec.82) (ii) attachment or sale of property (Sec.83). The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself. Warrant of attachment will be preceded by an order of proclamation. The expression "reason to believe" occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself or is avoiding the process of the court. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had "absconded" or "concealed himself." The three clauses (a), (b), and (c) of sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of sub-section (2) is optional; it is not an alternative to clause (1). The latter clause is mandatory. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. Thus, proclamation issued under Section 82/83 Cr.P.C. by the trial court is against the mandatory provisions of law. It appears that the Magistrate was in undue haste and was bent upon to declare the applicant as proclaimed offender, without following the due process of law. Trial court has shown its ignorance in dealing with the issue."

8. It is well-settled that in such cases when accused does not appear in the court after issuance of warrants, the process under Section 82 Cr.P.C. can be issued only when there is a report to this effect that he is absconding. After issuing proclamation under Section 82 Cr.P.C., the court has to wait for thirty days from the date of publication of proclamation and then attachment under Section 83 Cr.P.C. is to be issued. However, if the court is of the view that the accused is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local jurisdiction of the court, the proclamation under Section 82 Cr.P.C. and attachment u/s 83 Cr.P.C. can be 4 NA528 No. 31301 of 2025 issued simultaneously. In such a case, the court must be satisfied on the basis of the evidence produced before it that these circumstances exist and he has to mention these facts in the order issuing processes under Section 82 and 83 Cr.P.C. simultaneously.

9. In the instant matter, perusal of the record shows that in the aforesaid case applicant was on bail. As per version of applicant, he was working in 'Indian Army' and has joined his posting in 'Jammu & Kashmir' but his counsel could not move an application for exemption before the trial court. It was shown that by impugned order dated 30.07.2025, non-bailable warrants as well as process under Section 82 and 83 Cr.P.C. have been issued simultaneously without assigning any reason. There is nothing to show that any notice or bailable warrants were served upon applicant before that order. By a single stroke, non-bailable warrants as well as process under Section 82 and 83 Cr.P.C. have been issued in a routine manner without considering position of law and without assigning any reason at all. Thus, in view of aforesaid position of law, it is apparent that impugned order dated

30.07.2025 is against law and liable to be quashed.

10. In view of the aforesaid, the impugned order dated

30.07.2025 passed by learned Judicial Magistrate, Sonbhadra is hereby set aside.

11. It is further directed that in case applicant appears before the court concerned within a period of four weeks from today and applies for cancellation of warrants or for bail, the same shall be considered and decided expeditiously in accordance with law.

12. The application u/s 528 BNSS is allowed in above terms. September 8, 2025 CS/- (Raj Beer Singh,J.) CHANDAN SINGH High Court of Judicature at Allahabad

324, 325 I.P.C., arising out of Case Crime No.36 of 2022, Police Station Karma, District Sonbhadra, pending before the Court of Additional Chief Judicial Magistrate, Sonbhadra.

3. It is submitted by learned counsel for applicant that in the aforesaid case applicant was granted bail by this Court vide order dated 06.07.2022 and thereafter he was appearing before the trial court. Applicant is working in 'Indian Army' and he has joined his posting in 'Jammu & Kashmir' but his counsel could not move an application for exemption. Due to these reasons, non-bailable warrants were issued against him. It was submitted that by impugned order dated 30.07.2025, non-bailable warrants as well as process under Section 82 and 83 Cr.P.C. have been issued simultaneously without following the settled position of law. No reasons have been assigned for issuance of process under Section 2 NA528 No. 31301 of 2025 82 and 83 Cr.P.C. simultaneously. No notice or bailable warrants have been served upon applicant. Referring to these facts, it was submitted that the impugned order is against law and liable to be quashed. It was further submitted that as non-bailable warrants are being issued against applicant since last several dates thus applicant may be granted some time to appear before the trial court and interim protection till then.

4. Learned A.G.A. opposed the application.

5. I have considered the submissions and perused the record.

6. Provisions of Section 82 Cr.P.C read as under:- "Section 82. Proclamation for person absconding.-(1) 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 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. (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, 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. 3 NA528 No. 31301 of 2025 (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)."

7. In case of Indra Mani Pandey Vs. State of U.P. (Application under Section 482 Cr.P.C. No.25200 of 2012), decided on

05.10.2012, this Court has held as under:- "The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:- (i) issuing of a proclamation (Sec.82) (ii) attachment or sale of property (Sec.83). The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself. Warrant of attachment will be preceded by an order of proclamation. The expression "reason to believe" occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself or is avoiding the process of the court. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had "absconded" or "concealed himself." The three clauses (a), (b), and (c) of sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of sub-section (2) is optional; it is not an alternative to clause (1). The latter clause is mandatory. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. Thus, proclamation issued under Section 82/83 Cr.P.C. by the trial court is against the mandatory provisions of law. It appears that the Magistrate was in undue haste and was bent upon to declare the applicant as proclaimed offender, without following the due process of law. Trial court has shown its ignorance in dealing with the issue."

8. It is well-settled that in such cases when accused does not appear in the court after issuance of warrants, the process under Section 82 Cr.P.C. can be issued only when there is a report to this effect that he is absconding. After issuing proclamation under Section 82 Cr.P.C., the court has to wait for thirty days from the date of publication of proclamation and then attachment under Section 83 Cr.P.C. is to be issued. However, if the court is of the view that the accused is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local jurisdiction of the court, the proclamation under Section 82 Cr.P.C. and attachment u/s 83 Cr.P.C. can be 4 NA528 No. 31301 of 2025 issued simultaneously. In such a case, the court must be satisfied on the basis of the evidence produced before it that these circumstances exist and he has to mention these facts in the order issuing processes under Section 82 and 83 Cr.P.C. simultaneously.

9. In the instant matter, perusal of the record shows that in the aforesaid case applicant was on bail. As per version of applicant, he was working in 'Indian Army' and has joined his posting in 'Jammu & Kashmir' but his counsel could not move an application for exemption before the trial court. It was shown that by impugned order dated 30.07.2025, non-bailable warrants as well as process under Section 82 and 83 Cr.P.C. have been issued simultaneously without assigning any reason. There is nothing to show that any notice or bailable warrants were served upon applicant before that order. By a single stroke, non-bailable warrants as well as process under Section 82 and 83 Cr.P.C. have been issued in a routine manner without considering position of law and without assigning any reason at all. Thus, in view of aforesaid position of law, it is apparent that impugned order dated

30.07.2025 is against law and liable to be quashed.

10. In view of the aforesaid, the impugned order dated

30.07.2025 passed by learned Judicial Magistrate, Sonbhadra is hereby set aside.

11. It is further directed that in case applicant appears before the court concerned within a period of four weeks from today and applies for cancellation of warrants or for bail, the same shall be considered and decided expeditiously in accordance with law.

12. The application u/s 528 BNSS is allowed in above terms. September 8, 2025 CS/- (Raj Beer Singh,J.) CHANDAN SINGH High Court of Judicature at Allahabad