MANU/DE/0096/1979 Equivalent Citation: 1979CriLJ1107, (1979)ILR Delhi229 IN THE HIGH COURT OF DELHI Criminal Revision Appeal No.

173 of 1978 Decided On: 05.02.1979 Appellants: N.D. Gaddireddi Vs. Respondent: State Hon'ble Judges/Coram: Prithvi Raj, J. Counsels: D.P. Singh, S. Salu, Salman Khurshid and R.L. Bhagat, Advs Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1973 (CrPC) - Section 83 Case Note: Criminal Procedure Code (1973) - Sections 83 & 84--Whether the wife and minor children of a person declared absconder under Section 82, can object to the attachment and sale of the property belonging to the absconder in proceedings under Sections 83 & 84, on the ground that they have a right to be maintained by the absconder. Negativing the plea of the wife, held that a husband's obligation to maintain his wife is a personal obligation. The husband is bound to maintain his wife even though he has not got any property. Husband's obligation to maintain his wife is independent of any property owned by him. Likewise, it is also the personal obligation of a father to maintain his minor children irrespective of the property owned by him. The petitioner and her children, Therefore, cannot be said to have an interest in the property sought to be sold in proceedings under Section 83, in regard to their claim of maintenance. That being so, reliance sought to be placed by the learned counsel for the petitioner on Section 28 of Hindu Adoptions and Maintenance Act, is misconceived. Held: Further, that Section 85 of the Code prescribes the procedure regarding the release, sale and restoration of attached property. Sub-section (3) of Section 85 provides for the release of property on proof by the proclaimed offender to the satisfaction of the Court by whose order the property was attached that he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and that he had no such notice of the proclamation as to enable him to attend within the time specified therein. This request for release of property by a proclaimed offender has to be made within two years from the date of attachment. A bare reading of Sub-section (3) of enough to hold that the onus of proving that the accused did not abscond for the purpose of avoiding execution of the warrant of arrest and that he had no notice of the proclamation issued, lies on the proclaimed offender, and rightly so, as these clearly are matters within the knowledge of the absconding accused. JUDGMENT Prithvl Raj, J. (1) By this revision petition the petitioner challenges the correctness of the order dated 7th February, 1978, passed by Shri R. Dayal, Additional Chief Metropolitan Magistrate, New Delhi, whereby the learned Magistrate dismissed the application filed by the petitioner under section 84 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code') seeking release of the property belonging to her husband Dr. G. J. Reddi, attached in pursuance of the provisions of section 83 of the Code. (2) Facts relevant disposal of this revision petition are as follows. A case under section 3, 5, 6 and 9 of the Official Secret, Act read with section 120B of the Indian Penal Code, was registered at police station Sriniwaspuri, vide F.I.R. No. 26 of 1977, against the petitioner, her husband, Dr. G. J. Reddi and one K. K. Sarin. Dr. Reddi was declared a proclaimed offender by the Court by an order dated 7th April, 1977. His property was ordered to be attached. The property accordingly was attached on 23rd and 30th April, 1977. The present petitioner moved an application under section 84 of the Code on her own behalf and on behalf of her two minor children for the release of the attached property of her husband. Dr. Reddi. The application, as noted above, was dismissed by Shri R. Dayal, Addl. Chief Metropolitan Magistrate, New Delhi, by his impugned order dated 7th February, 1978. (3) Feeling aggrieved by the aforesaid order the petitioner has filed the present petition in this Court. (4) A perusal of the record shows that the prosecution obtained nonbailable warrant from the Court of Shri P. K. Dham, Metropolitan Magistrate on 18th March, 1977. Service of the said warrant could not be effected because of the non-availability of Dr. G. J. Reddi. The prosecution accordingly filed a report on 1st April, 1977, returning the warrant unexecuted staling that Dr. Reddi was avoiding his arrest, with a prayer that coercive process under sections 82 and 83 of the Code be issued against him and that the property belonging to Dr. Reddi be attached and that a receiver for the attached property be appointed. (5) In her petition before the trial Court the petitioner objected to the attachment of the property of her husband stating that she and her minor sons who at present are residing in Czechoslovakia, have

vested interest in house No. B-5/23, Safdarjang Enclave, New Delhi, being the legal heirs of Dr. G. J. Reddi. She further stated that she had no place to stay in Delhi and in the circumstances had been compelled to stay in the Czechoslovakian Embassy. The said application was dismissed by the trial Court by the impugned order. (6) The petitioner challenges the correctness of the said order, inter alia, on the grounds : (1) that the order of proclamation declaring her husband as an absconder is against the mandatory provisions of sections 82 and 83 of the Code and as such is had in law, (2) that the Court below wrongly came to the conclusion that her husband. Dr.G. J. Reddi, is an absconder ; (3) that the Court failed to appreciate that at the time accused Dr. Reddi left India on 10th February, 1977, he had no knowledge about the case in question and accordingly it was wrong to hold that he left India secretly in order to avoid the process of law; (4) that there was no material before the prosecution to connect the accused, Dr. Reddi with the alleged commission of the offence; and (5) that it was wrong to contend that challenge to the proclamation issued under section 84 of the Code could only be made by the accused person and that it was further wrong for the Court to hold that the. petitioner and her minor children have no right of maintenance from the property in question. (7) The grounds sought to be urged challenging the correctness of the impugned order are wholly misconceived. According to sub-section (1) of second 82 of the Code, 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 specified time not less than thirty days from the date of publishing such proclamation. Sub-section (1) of section 83 of the Code empowers the Court issuing a proclamation under section 82, for reasons to be recorded in writing, at any time after the issue of the proclamation, to order attachment of any property, movable or immovable, or both, belonging to the proclaimed person and according to subsection (4) of section 83 of the Code if the property ordered to be attached is immovable, the attachment under the said 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 by taking possession; or by the appointment of a receiver or by an order in writing prohibiting the payment of rent to the proclaimed person or to any one on his behalf. (8) In the instant case warrant for the arrest of accused Dr. G. J Reddi, was issued on 18th March, 1977, by Shri P. K. Dham, Metropolitan Magistrate, New Delhi, which was returned unserved by Raghbir Singh, Inspector, C. I. D. (SB) with his report dated 1st April, 1977, stating that the accused was purposely concealing himself and avoiding his arrest. The report further goes on to state that hot search was made for the accused in and around Delhi to arrest him, wireless messages were flashed to Superintendents of Police in India for the search and arrest of the accused but he was absconding and avoiding his arrest. Raghbir Singh accordingly in his report requested that proclamation order under section 82 of the Code and attachment of the property under section 83 of the Code may be issued. He also attached with his report a list of movable and immovable property belonging to the accused. (9) It may be mentioned here that Raghbir Singh Inspector also made a formal application on 4th April, 1977, under sections 82 and 83 of the Code in Court praying that proclamation order under section 82 of the Code be issued against the accused and that orders under section 83 of the Code attaching the property belonging to the accused be also issued. On a perusal of the report of the Inspector and on a consideration of the application filed on 4th April, 1977, by him, Shri P. K. Dham, Metropolitan Magistrate, Delhi, after recording the statement of Raghbir Singh Inspector on oath, was satisfied that accused Dr. G. J. Reddi was absconding and avoiding his arrest. He accordingly by his order dated 7th April, 1977, directed that proclamation under section 82 of the Code be issued against the accused, taking note of the prayer made on behalf of the prosecution that the accused was likely to dispose of his movable and in immovable property be ordered attachment of house No. B-5/23, Safdarjang Enclave, New Delhi, under section 83 of the Code, directing that the said house be sealed and attached with all its household goods belonging to the accused. In respect of the agricultural land belonging to the accused in Ramachandrapuram, Hyderabad, order for attachment of the income there from was issued directing that an authority letter be issued to the Collector, Hyderabad, after giving particulars of the land, its specification and area, to attach the income as directed. Janak Raj, Deputy Superintendent of Police (SB) New Delhi, was appointed as receiver in respect of the shares of the accused in various companies and firms and his bank accounts stating that he will have all the powers of attachment of the debts and shares of the accused in various firms and companies and he will also have all the powers to freeze the bank accounts of the accused in various banks, with a direction, that the receiver should immediately inform the Court after complying with its orders. The Magistrate accordingly directed that process be issued under sections 82 and 83 of the Code for 16th May, 1977. Proclamation and attachment order were issued simultaneously in pursuance of proviso to sub-section (1) of section 83 of the Code which empowers the Court at the time of issuing proclamation on being satisfied that the person in relation to whom proclamation is to issued, is about to dispose of the whole or any part of his property, to order attachment simultaneously with the issue of the proclamation. (10) On behalf of the petitioner it was contended that there was no material before the Court at the time the proclamation was issued and the property in question was ordered to be attached from which the Court could come to the belief that Dr. Reddi had absconded or was concealing himself so as to avoid his arrest. It was submitted that Dr. Reddi had left India on 10th February, 1977, with valid travel documents while the warrant of his arrest was issued on 18th March, 1977. In the circumstances, it was urged, it could not be said that Dr. Reddi was absconding or concealing himself so as to avoid execution of the warrant. (11) The order issuing proclamation states that the Court had taken into consideration the report made by Raghbir Singh Inspector as also the application dated 4th April, 1977, made by him after recording his statement. Shri R. L. Bhagat, appearing for the State, however, submitted that he was appearing before the Court on behalf of the prosecution and had produced the police file for the perusal of the Court containing the statement of Shri V. V. Reddi, a prosecution witness, recorded by the police under

section161 of the Code and that the learned Magistrate had the benefit of going through that statement. According to the statement of Shri V. V. Reddi, one Shri G. S. Murthy of Hyderabad, a friend of Dr. G. J. Reddi accused, had been sent by Dr. Reddi to Delhi and that he had come to Delhi on 8th February, 1977, and got exchange permit of Dr. Reddi from him. He further stated that he arranged a meeting between G. S. Murthy and the petitioner and also procured the passport of Dr. Reddi from the petitioner. The petitioner and Shri Murthy had talked in private for some time. On his asking, Shri Murthy told him that Dr. Reddi was in trouble and had sent him to Delhi for procuring exchange permit and his passport. That being so, it cannot be said that there was no material before the Court on 7th April, 1977, to enable it to believe that Dr. Reddi against whom warrant of arrest had been issued was absconding or was concealing himself so that such warrant could not be executed. (12) Shri Bhagat produced the said police file in the Court. A perusal of that shows that Dr. Reddi was scheduled to leave India from Delhi but he suddenly cancelled his air-reservation through Ashoka travels (P) Ltd. Madras and chose to fly from Hyderabad. The case against the petitioner. Dr. Reddi and K. K. Sarin was registered on 26th January, 1977. From the statement of V. V. Reddi it would be a legitimate inference to draw, on a prima facie consideration of the statement that Dr. G. J. Reddy was aware of the case against him and that is why he surreptitiously left India on 10th February, 1977. in anticipation of his being apprehended and thereby forestall the efforts of the police to arrest him. Dr. Reddi having come to knew of the case against him, the mere fact that he left ln,dia before issuing of the warrant of arrest or passing of the order of proclamation continuing to remain outside India with a view to defeat or delay the execution of the warrant of arrest, he has to be taken to be an absconding person. (13) A persual of the order of attachment reveals that Dr. Reddi apart from possessing immovable property had large assets by way of shares in companies and firms besides bank accounts. By not returning to India he had allowed his business interests to go into jeopardy which, prima facie, is indicative of the fact that he is avoiding execution of the warrant of his arrest. It is, Therefore, futile to contend that there was no material on the record to enable the Magistrate to have reasons to believe that Dr. Reddi had absconded or was concealing himself so that the warrant of arrest issued against him could not be executed. (14) It is equally futile to contend that at the time Dr. Reddi surreptitiously left this country, in the circumstances noted above, he had no knowledge about the case in question. The contention that the ardor of proclamation proclaiming Dr. Reddi as an absconder is against the mandatory provisions of sections 82 and 83 of the Code, is Therefore, wholly misconceived. (15) The present petition has been, filed by the petitioner on her own behalf and on behalf of her minor children staling that they have interest in the attached property, it being the obligation of Dr. Reddi to maintain the petitioner and his minor children. It need hardly be reiterated that a husbands obligation to maintain his wife is a personal obligation. The husband is bound to maintain his wife even though he has not got any property. Husband's obligation to maintain his wife is independent to any property owned by him. It is also the personal obligation of a father to maintain his minor children irrespective of the property owned by him. The petitioner and her children, Therefore, cannot be said to have an interest in the property in regard to their claim of maintenance against Dr. Reddi. That being so, reliance sought to be placed by the learned counsel for the petitioner on section 28 of Hindu Adoptions and Maintenance Act is misconceived. (16) Section 85 of the Code prescribes the procedure regarding the release, sale and restoration of attached property. Sub-section (3) of section 85 provides for the release of property on proof by the proclaimed offender to the satisfaction of the Court by whose order the property was attached that he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and that he had no such notice of the proclamation as to enable him to attend within the time specified therein. This request for release of property by a proclaimed offender has to be made within two years from the date of attachment. A bare reading of sub-section (3) is enough to hold that the onus of proving that the accused did not abscond for the purpose of avoiding execution of the warrant of arrest and that he had no notice of the proclamation issued, lies on the proclaimed offender, and rightly so, as these clearly are matters within the knowledge of the absconding accused. (17) In view of my discussion on, the various points, noted above. the petition fails and is hereby dismissed. Manupatra Information Solutions Pvt. Ltd.
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MANU/DE/0678/2003

Equivalent

Citation: 2004CriLJ212,

106(2003)DLT439,

2003(71)DRJ49,

(2003)ILR

2Delhi137,

2003(3)JCC1387, (2003)135PLR58 IN THE HIGH COURT OF DELHI Crl. M(M) 3425/2003 Decided On: 22.08.2003 Appellants: G. Sagar Suri Vs. Respondent: State and Anr. Hon'ble Judges/Coram: J.D. Kapoor, J. Counsels: For Appellant/Petitioner/plaintiff: Rajiv Nayar, Sr. Adv., Sidharth Luthra, M. Pandey, Kailash Gahlot andSmriti Sinha, Advs For Respondents/Defendant: V.K. Malik, APP Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Minimum Wages Act - Section 22A; Code of Criminal Procedure (CrPC) - Section 61, Code of Criminal Procedure (CrPC) - Section 82, Code of Criminal Procedure (CrPC) - Section 82(1), Code of Criminal Procedure (CrPC) - Section 82(2), Code of Criminal Procedure (CrPC) - Section 83, Code of Criminal Procedure (CrPC) - Section 87, Code of Criminal Procedure (CrPC) - Section 204; Code of Civil Procedure, 1908 (CPC) Case Note: Criminal Procedure Code, 1973 - Sections 204, 82, 83, 87--Summons case--Issuance of nonbailable warrants--Offence involved punishable with fine to the maximum limit of Rs. 500/-Issuance of Non-bailable warrants without recording reasons--Non-compliance with mandatory provisions-Order unsustainable--Minimum Wages Act, 1948, Section 22A. Held: Section 87 of Cr.P.C vests the discretion in the court which is empowered to issue the summons for appearance of any person to issue warrant of his arrest but ' in that case as the provision would show certain conditions are necessary to exist. Thus there is no scope of doubt as to the nature of process to be issued in a summons case. It was mandatory for the Metropolitan Magistrate to issue at the first instance process of summons for the attendance of the petitioner. In case he had failed to appear despite due service of summons upon him, the Magistrate could have resorted to coercive process of warrants of arrest and that too after recording the reasons in writing. As regards order, reasons for issuing non-bailable warrants as prescribed by Section 87 Cr.P.C have not been recorded in writing. Court has to satisfy itself before issuing warrant of arrest that the accused has either absconded or has failed to appear despite of service of summons upon him. Thus this order also suffers from inherent infirmity. JUDGMENT J.D. Kapoor, J. 1. Short question of law arising in this petition is whether the Magistrate has the powers to procure the attendance of the accused through warrants of arrest while taking cognizance of a summons case without giving a finding that the accused has either absconded or will not obey the summons. Answer is emphatic `no' as it lies in the provisions of Section 204 Cr.P.C relating to "issue of process" itself. 2. Facts giving rise to aforesaid proposition of law are, put briefly, as under: 3. Complaint for the offence punishable under Section 22A of the Minimum Wages Act was filed against the petitioner in 2000. The offence carries a sentence of fine to the maximum limit of Rs.500/- and Therefore is a `summons' case. Vide order dated 23.10.2000 the learned Metropolitan Magistrate, while taking cognizance summoned the accused through bailable warrants for a sum of Rs.5000/- . Said order reads as under:-

"23.10.2000 Present: Sh. O.P. Arya, complainant Accused by summoned with Bailable warrant in the sum of Rs.5,000/- with one surety through SHO concerned. dusty for 3.8.01."

4. Section 204 Cr.P.C provides the procedure for issuing processes for procuring attendance of the accused while taking cognizance of the offence. Procedure laid down is as under:-

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 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."
5. Bare perusal shows that the law enjoins upon the Magistrate to issue summons for attendance of the accused if it is a summons case and if it is a warrant case he may issue warrant and if he thinks fit he may issue summons for causing appearance of the accused. As is apparent even in warrants case appearance of the accused can be ordinarily procured through summons though the Magistrate has the discretion to issue a warrant. Word `shall' projects the mandatory nature of the provision so far as process in a summons case whereas work `may' in relation to a warrant case shows the discretionary power of the Magistrate. 6. Section 87 of Cr.P.C vests the discretion in the court which is empowered to issue the summons for appearance of any person to issue warrant of his arrest but in that case as the provision would show certain conditions are necessary to exist. Section 87 provides as under:

"87. Issue of warrant in lieu of, or in addition to, summons- A court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest(a)if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b)If at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

7. Bare perusal shows that to cause appearance through warrant of arrest it is mandatory for the court to record reasons in writing and it is only in following two eventualities that such a steps is resorted to. Firstly, the court should see reasons to believe that the said person has absconded or will not obey the summons; Secondly if such a person has failed to appear despite due service of summons upon him. 8. Thus there is no scope of doubt as to the nature of process to be issued in a summons case. It was mandatory for the Metropolitan Magistrate to issue at the first instance process of summons for the attendance of the petitioner. In case he had failed to appear despite due service of summons upon him, the Magistrate could have resorted to coercive process of warrants of arrest and that too after recording the reasons in writing. 9. As is apparent the initial order of summoning dated 23.10.2000 was against the mandatory provisions of Section 204 Cr.P.C. Subsequent orders passed by Metropolitan Magistrate particularly orders dated 3.8.2001 and 19.9.2002 do not spell out the reasons for issuing non-bailable warrants of arrest and process under Section 82/83 of Cr.P.C. Orders read as under:-

"3.8.2001 Present: Inspector for MW. Accused Absent. He is deliberately avoiding service of B/W. Issue NBW against him through SHO/HC Sarita Vihar for 18.10.01. 19.9.2002 Present: Sh. Om Prakash and Pankaj Sharma for MW Accused absent.

He is deliberately avoiding arrest. Issue Process U/S 82 & 83 Cr.P.C against accused through Sarita Vihar for 29.10.02."
10. As regards order dated 3.8.2001, reasons for issuing non-bailable warrants as prescribed by Section 87Cr.P.C have not been recorded in writing. Court has to satisfy itself before issuing warrant of arrest that the accused has either absconded or has failed to appear despite of service of summons upon him. Thus this order also suffers from inherent infirmity. 11. As regards order dated 19.9.2002 , the learned Magistrate straightaway issued dual process of sections 82 and 83 of Cr.P.C and that too without following the mandatory procedure envisaged in these provisions. 12. This is apparent from the bare reading of these provisions which are as under:-

"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 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." " 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 proclamation. the attachment simultaneously with the issue of the

(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 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 in 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). "
13. It is manifest from the provisions of Section 82 Cr.P.C that before publishing the written proclamation requiring the accused to appear under the provisions of Section 82 Cr.P.C the court has to record the reasons either after taking evidence or without evidence that a person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed. The procedure for publication of the proclamation is laid down in sub-section (2) of Section 82. Sub-section (1) provides that the Court shall wait for thirty days after publication of the proclamation for the appearance of the accused and it is only after processes under Section 82 Cr.P.C are exhausted that the next step under Section 83 is to be taken by the Court. 14. Section 83 enjoins upon the court to record the reasons in writing for ordering the attachment of any property belonging to the person who has been proclaimed as an offender under Section 82 Cr.P.C. Even the order of attachment of property has two pre-requisites. Firstly the court has to satisfy itself either by affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to dispose of whole or any part of the property or secondly that he is about to remove whole or part of the property from the local jurisdiction of the court. Thus the orders passed by learned MM in this regard suffer from gross illegality and inherent infirmity. 15. Every criminal court is a creature of Criminal Procedure Code. It is neither above it nor can it rise about it. It has to remain within its precincts and cannot afford to traverse beyond it. Any order passed beyond the provisions and in violation of mandatory provisions empowering the court to issue warrant of arrest or proclamation under Section 82 or attachment of property under Section 83 have to be reasoned one and in accord with essential requirements. Curtailment of any person's liberty with the sledge of hammer does not comport with judicial discretion vested by the provisions of Criminal Procedure Code in the criminal court. More absolute power the court enjoys more circumspective and sparing use of it is expected. Absolute power does not admit element of arbitrariness. 16. I find that each and every order passed by the learned MM right from 23.10.2000 till 9.7.2003 was against the rudimentary and basic principles of law relating to issue of warrant of arrest and processes under Sections 82 and 83 of Cr.P.C. 17. As a result, the petition is allowed. Impugned orders are set aside and the proceedings taken against the petitioner so far are quashed. In view of the failing health and old age of the petitioner, he is allowed to appear and reply to the notice of offence before the learned MM through his counsel on 1st September, 2003, the date already fixed as it is a summons case and the maximum sentence is fine up to Rs.500/- as the process of appearance is issued in the form of Schedule I under Section 61 of Cr.P.C which empowers the accused not only to appear through pleader but plead guilty also. Proforma of summons is as under:-

"To.......................(name of accused) of .......................(address) WHEREAS your attendance is necessary to answer to a charge..............(state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate) of..............on the.......................day of ...........................Herein fail not. Dated, this..........day of ................20... (Seal of Court) (Signature)"
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MANU/DE/0601/2002 Equivalent Citation: 2002VAD(Delhi)254, 98(2002)DLT181, 2002(64)DRJ81 IN THE HIGH COURT OF DELHI Crl. R. No. 228/2002 Decided On: 09.05.2002 Appellants: Dalmia Resorts International Pvt. Ltd. Vs. Respondent: Sh. Deepak Gupta and Anr. Hon'ble Judges/Coram: S.K. Agarwal, J. Counsels: For Appellant/Petitioner/plaintiff: Arun, Adv For Respondents/Defendant: Pawan Sharma, Adv. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1973 (CrPC) - Section 82, Code of Criminal Procedure, 1973 (CrPC) Section 82(1), Code of Criminal Procedure, 1973 (CrPC) - Section 82(2), Code of Criminal Procedure, 1973 (CrPC) - Section 83, Code of Criminal Procedure, 1973 (CrPC) - Section 397; Negotiable Instruments Act - Section 138; Indian Penal Code (IPC) - Section 420; Constitution of India - Article 21 Case Note: Criminal Procedure Code, 1973 - Sections 82/83 r/w 138, Nl Act--Quashing of proceedings-Proclamation for any person absconding--Dishonour of cheque--"Stop payment"--Summons . were returned unserved and petitioner did not appear before the trial court--Proceedings quashed, subject to the conditions that the petitioner shall put in appearance before trial Court within two weeks from today and deposit the cheque amount Along with interest in the Court @ 18% from the date of the cheque, till the date of payment in the name of complainant Held : The order dated 17th May, 2001, initiating proceedings under Sections 82/83, Cr.P.C. against petitioner (M/s. Dalmiya Resorts International Pvt. Ltd.) in the complaint No. 529/1, under Section 138 of Nl Act is quashed, subject to the conditions that the petitioner shall put in appearance before the trial Court within two weeks from today and deposit the cheque amount Along with interest in the Court at the rate of 18% front 3rd December, 1997 (date of the cheque), till the date of payment in the name of complainant; without prejudice to the rights and contentions of the parties. If the amount is deposited the Court shall release the said amount to the complainant, on such terms--and conditions as it deems fit and proper. Or pass such other orders as may be deemed necessary. With these directions, petition stands disposed of. Any observation made herein shall not affect the merits of the case. JUDGMENT S.K. Agarwal, J. 1. By this petition under Section 397 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") petitioner M/s. Dalmiya Resorts International Pvt. Ltd. is seeking quashing of the proceedings under Sections 82/83 Cr.P.C. in the complaint filed by respondent No. 1 (Deepak Gupta) against them and others, under Section 138 of the Negotiable Instruments Act (for short "NI Act") read with Section420 of Indian Penal Code. 2. Facts in brief are that respondent No. 1 (Deepak Gupta) filed a complaint against the petitioner, Mrs. Indu Dalmiya (Chairperson), N.P. Jalan and Pardeep Shukla (Directors of petitioner No. 1) alleging that the petitioner issued cheque No. 974214 dated 3rd December, 1997 for Rs. 18,515.67 drawn on State Bank of Patiala, Nehru Place, New Delhi. The cheque was dishonoured with the remarks "stopped payment". Despite notice, the payment was not made. After the preliminary enquiry, petitioner were summoned under Section 138 of NI Act. Summons were returned unserved and they did not appear. On 9.10.2000, learned trial court passed the following order:-

"Present Complainant with Counsel. Accused No. 1 is a Company. Accused No. 2-4 are absent even today. An Application has been filed by one Shri S.C. Mittal for cancelling NBW against him as he states to be authorised representative of the Accused No. 1 Company. His Ld. Counsel has made also such submission on previous date i.e. 26.8.2000 before this Court. I have carefully perused the entire material on record. The name of S.C. Mittal does not figure in the list of accused persons mentioned in the complaint. The legal notices issued to the accused also does not show this man i.e., as the Authorised representative. He has not filed any documentary proof on record to show that he is in fact authorised representative of Accused No. 1 Company. This application is not supported by any affidavit of any person. In view of these reasons this man SCM does not appear to be the authorised person of the Accused No. 1 Company. Hence this application is dismissed as infructuous. He need not to appear further in the matter as he does not seem to be authorised representative of accused No. 1 Company. As none of the accused are present today, issue fresh NBW against all accused for 17.5.2001 to be

get served by SHO P.S. Paschim Vihar personally."

On 17.5.2001, without noticing the report on the warrants, fresh process under Section 82/83 Cr.P.C. was issued against all the accused persons. 3. This order is under challenge. Learned counsel for petitioner argued that the proceedings under Sections 82/83 Cr.P.C. against the petitioner company could not be initiated; the petitioner is a company and that they have always been ready and willing to compensate the complainant towards the amount of the cheque along with any reasonable rate of interest, without prejudice to their rights and contentions. This apart, proclamation for any person absconding can be issued if the Court has the reasons to believe that the person against whom a warrant has been issued by it has absconded or is concealing himself and that warrant of arrest cannot be executed only then the Court is empowered to publish a written proclamation requiring him to appear at a specified date and time, within thirty days from the date of publication of such proclamation. The term "absconding" does not necessarily imply a change of place. The petitioner being a private limited company, the question of its absconding does not arise. The process of proclamation and attachment are exceptional remedies and should not be issued as a matter of course whenever the warrant is returned unexecuted. The non-conformance of Section 82(1) and (2) would be violation of the procedure established by law within the meaning of Article 21 of the Constitution of India. It appears that while issuing process under Sections 82/83 Cr.P.C., the Court did not even notice the report on the warrant. The impugned order issuing proclamation against the petitioner, on the face of it is not sustainable. For the foregoing reasons, the order dated 17th May, 2001, initiating proceedings under Sections 82/83 Cr.P.C. against petitioner (M/s. Dalmiya Resorts International Pvt. Ltd.) in the complaint No. 529/1, under Section 138 of NI Act is quashed, subject to the conditions that the petitioner shall put in appearance before the trial court within two weeks from today and deposit the cheque amount along with interest in the Court at the rate of 18% from 3rd December, 1997 (date of the cheque), till the date of payment in the name of complainant, without prejudice to the rights and contentions of the parties. If the amount is deposited the Court shall release the said amount to the complainant, on such terms and conditions as it deems fit and proper. Or pass such other orders as may be deemed necessary. With these directions, petition stands disposed of. Any observation made herein shall not affect the merits of the case. Registry is directed to segregate the trial court file and to send back the same. Manupatra Information Solutions Pvt. Ltd.
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