Allowed

Naresh Kumar Swain @ Kalia v. State of Odisha

Orissa HC24 Nov 2021CRLMC/148/2021

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the High Court of Orissa quashed orders for proclamation and attachment proceedings regarding Section 504 IPC offences. The court held that notice of absence cannot be issued before a warrant is passed, as Section 82 requires a warrant to be already issued before a proclamation for absconders. The lower court erred in accepting the investigation officer

What did the court decide?

Impugned orders dated 10.09.2020 and 21.12.2020 quashed regarding the petitioner; petitioner directed to surrender within two weeks and move for bail.

Naresh Kumar Swain @ Kalia Vs State of Odisha — Civil Procedure and Limitation | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No. 148 of 2021

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An application under section 482 of the Code of Criminal Procedure, 1973 in connection with G.R. Case No. 458 of 2020 pending in the file of learned J.M.F.C., Nimapara.

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---------------
Naresh Kumar Swain @ Kalia ..… Petitioner
-Versus-
State of Odisha ….. Opp. Party
Advocate(s) appeared in this case :-

For Petitioner : M/s. Debashis Panda & S. Panda,
Advocates
For Opp. Party : Mr. M.K. Mohanty,
Addl. Standing Counsel.

CORAM :
JUSTICE SASHIKANTA MISHRA
ORDER
24 th November, 2021

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SASHIKANTA MISHRA, J.

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In the present application filed under Section 482 Cr.P.C.,

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the petitioner questions the correctness of the orders dated 10.09.2020 and 21.12.2020 passed by the learned J.M.F.C., Nimapara in G.R.

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Case No. 458 of 2020, whereby, NBW along with proclamation and attachment under Sections 82 and 83 was issued against him.

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Briefly stated, the facts of the case are that the petitioner along with eight other persons is facing trial in the aforementioned case for the alleged commission of offence under Sections 147/148/332/294/304/395/ 506/149/120-B IPC read with Sections 25 and 27 of Arms Act. The aforesaid case has been instituted on the basis of an FIR lodged before the Kakatpur Police Station on 25.07.2020. On 10.09.2020, the record was put up before the learned J.M.F.C., Nimapara for consideration of prayer made by the I.O. to issue NBW proclamation and attachment against the present petitioner and another accused by submitting that despite several efforts, the accused persons could not be apprehended as they had absconded from their village to avoid arrest. Learned J.M.F.C. after noting the steps purportedly taken by the I.O. to apprehend the accused persons, allowed the prayer and directed issue of NBW proclamation and attachment against the petitioner and the other accused persons. Subsequently, the I.O. submitted preliminary charge sheet on 19.12.2020 and on such basis, the case record was put up before the learned J.M.F.C. on 21.12.2020

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describing the petitioner and other accused persons as absconders with prayer to keep the investigation open. Learned J.M.F.C. observed that the petitioner and his co-accused have been shown as absconder by the I.O. in charge sheet and that NBW was issued by the said court on 10.09.2020 and accordingly directed the CSI to open a split up file.

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Being aggrieved by the aforementioned orders, the petitioner has

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approached this court.

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Heard Mr. D. Panda, learned counsel for the petitioner and

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Mr. M.K. Mohanty, learned Addl. Standing Counsel through virtual mode.

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It is submitted by Mr. Panda that the learned Magistrate could not have issued order for proclamation and arrest straightaway without first directing issuance of NBW against the accused persons. Referring to the provisions under Section 82 & 83 of Cr.P.C. it is contended that the power under Section 82 Cr.P.C. can be exercised only if a warrant has already been issued and the Magistrate has reasons to believe that the accused is absconding for the purpose of avoiding arrest. It is further submitted that the petitioner may have been simply absent at his home when he was being searched for by the

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I.O. but the same cannot be given the colour of abscondance. The

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learned J.M.F.C., has however, accepted the version of the I.O. in his entirety without applying his judicial mind.

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Mr. M.K. Mohanty, learned Addl. Standing Counsel has,

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on the other hand contended that the petitioner has so far avoided arrest by staying away from his home, which amounts to abscondance

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and therefore, there was nothing wrong on the part of the learned J.M.F.C. to take coercive steps for his apprehension. It is however,

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fairly submitted that the power under Section 82 of Cr.P.C. can be exercised only after NBW has been issued but not simultaneously.

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To appreciate the rival contentions, it is felt proper to refer

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to the relevant provisions which are quoted herein below.

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“82. Proclamation for person absconding .

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(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.

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(2) The proclamation shall be published as follows:-

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(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

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(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;

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(c) a copy thereof shall be affixed to some conspicuous part of the Court- house;

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(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.

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(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.

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[(4) Where a proclamation published under sub-section (1) is in respect of 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, 59 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.

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(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).]

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From a plain reading of the language employed in the

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provision, it becomes abundantly clear that the power under Section 82 of Cr.P.C. can be exercised only upon satisfaction of the following pre

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conditions, namely; (a) a warrant must have been issued against the

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accused; (b) the accused must have absconded or concealed himself in

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such manner that the warrant cannot be executed; (c) The court must

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have reason to believe that the aforementioned two circumstances exist. Thus, in a case where a warrant has been issued and the Magistrate has reason to believe that the warrantee is absconding solely for the purpose of avoiding execution of such warrant, then only

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the proclamation under Section 82 Cr.P.C. can be issued requiring him to appear at a specified place and at a specified time.

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The essential ingredients for exercise of the power is subjective satisfaction of the court that the warrantee is hiding himself to evade the process of law. Further, mere absence from home cannot be treated as abscondance, because a person may be absent from home

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for any number of reasons. It is well settled that to be an absconder in the eye of law it is not necessary that a person should have run away from his home; it is sufficient if he hides himself to evade the process of law, even if the place of hiding be his own home. The above view was taken by the apex court in the case of Kartarey and others vs. State of U.P., reported in 1976 (1) SCC 172. It is also the settled position of law that simultaneous issue of warrant and proclamation is illegal. Reference in this regard may be had to the decision of the apex Court in the case of Indradeo Mahato vs. State of West Bengal reported in AIR 1973 SC 1062. That apart, the attachment contemplated under Section 83 can be issued at any time after the issue of proclamation under Section 82 if the court is satisfied that the person concerned is about to dispose of the whole or any part of his

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property, or is about to remove the whole or any part of his property from the local jurisdiction of the court.

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Coming to the facts of the case at hand, it is seen that the I.O. claims to have taken several sincere steps along with Police Staff to apprehend the above noted persons in the locality but in vain and that from confidential enquiry at the village regarding whereabouts of the accused persons it was revealed that they have absconded from their village soon after the occurrence so as to avoid police arrest. On such submission of the I.O., learned J.M.F.C. held that the case is “currently at the stage of investigation and that the court does not want to stand as the stumbling block in the process of investigation by the I.O.” and thus, went on to allow the prayer of the I.O.

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The impugned order as above strikes as blatantly illegal for the reasons indicated below. Firstly, learned J.M.F.C. failed to consider that a warrant had not yet been issued against the accused and therefore, no proclamation under Section 82 could be issued and secondly, the submission of the I.O. was accepted lock, stock, and barrel without citing any justified reason.

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In a case involving similar facts, i.e., Antaryami Barik

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and another v. State of Orissa, 2016 Crl. L.J. 1231, this court held that reason is the heartbeat of the orders passed by this court and that reason always show the basis on which the learned court came to a particular conclusion and absence of reasons in an order itself is violative of principles of natural justice.

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Learned JMFC in the instant case has merely held that the court does not want to stand as a stumbling block in the process of investigation. While it is true that the court should not interfere in the investigation and rather, pass any order that may aid the same yet, no order can be passed dehors the statutory provisions. It goes without saying that if the statute requires a thing to be done in a particular manner, the same shall be done in that manner or not at all. It is also a long standing settled principle of law.

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From the discussion made hereinbefore, it becomes explicit that the learned JMFC has exercised jurisdiction in a manner not provided for in law, for which the impugned order becomes liable for interference. Such being the position and the fact that the petitioner

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accused has approached this court challenging such order, he is to be directed to surrender before the court below and move for bail.

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For the forging reasons therefore, the CRLMC is allowed. The impugned orders dated 10.09.2020 and 21.12.2020 in so far as it relates to accused- Naresh Kumar Swain @ Kalia are hereby quashed.

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It is further directed that the petitioner shall surrender before the court

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below within a period of two weeks and move for bail, which shall be considered on its own merit in accordance with law.

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.……….…………….
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 24 th November, 2021/ A.K. Rana

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Naresh Kumar Swain @ Kalia v. State of Odisha

Case brief

What is this about?

What did the court decide?

Naresh Kumar Swain @ Kalia v. State of Odisha

Case brief

What is this about?

What did the court decide?

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