DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE:

Cases of proclamations

SUBJECT: CODE OF CRIMINAL PROCEDURE

NAME OF THE FACULTY: Ms. Soma

Name of the Candidate: uday kumar

Roll No. : 2017128

Semester: 4

1
ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to teacher Ms. Soma Ma’am

who gave me the golden opportunity to do project of ‘Cases Of Proclamations’, which also

helped me in doing a lot of research and I came to

know about so many new things I am really thankful to ma’am.

2
TABLE OF CONTENTS

1. Introduction

2. Summons

3. Warrants

4. issuance of warrants in case of summons

5. proclamations and attachments

6. Proceedings Against Absconders and Record of Evidence in their Absence

(a) measures to enforce appearance

(b) record of evidence in the absence of the accused

3
INTRODUCTION

The”basic purpose of the Criminal Procedure Code, among other things, is to ensure a fair trial

where none of the rights of the accused are compromised nor are they unjustifiably favoured.

Furthermore, to ensure that the judge concerned hears all parties who are relevant to the trial,

their presence at the trial is obviously important. That is why an entire chapter of the Code

concerns itself with the process of ensuring the attendance of any person concerned with the

case, including an accused or a witness, through various measures, viz. summons, warrant,

proclamation and attachment of”property.1

The latter two are usedawhen the former do not yield satisfactorygresults.”Many would argue

that the simplest way to ensure the presence of a person, especially an accused, would be to

arrest him in all circumstances and detain him so that his presence is beyond doubt. However,

such an action would go against the fundamental right that this Constitution provides with, the

right to personal liberty under Article 21. Criminal law hinges on that right and no person can

be deprived of this right unless very cogent reasons are present which argue against his release.”

This is why the Code envisages both warrant and summons to procure the attendance of persons

concerned. In this project, I will look into the four variants used to procure the attendance of

persons for trial. Of course, since the provisions are mostly procedural in nature, few

substantive issues arise but interpretation of these provisions nevertheless gives rise to various

issues. Moreover, the way they are used by the various functionaries involved viz. the judiciary

and the police, also has given rise to substantive literature on this.

Furthermore, I will give special attention to procurement of attendance of witnesses and how

the provisions have been used by the functionaries in ensuring that witnesses attend the trial2.

1
https://www.lawteacher.net/free-law-essays/criminal-law/criminal-procedure-code.php (12/2/2019 time-
10:30)
2
Ibid

4
SUMMONS

The”form in which summons should be served is given in Section 61 of the Code while a

summons case is defined as a case relating to an offence which does not provide for

imprisonment exceeding two years. Even though a summons case relates to a less serious

offence and it is estimated that person served would attend the trial, the Indian Penal Code

through Section 174 enforces coercive measure on such persons to attend the trial by enforcing

a six month punishment if such persons do not attend the trial. It has to be remembered that

though Section 61 gives the procedure of serving summons, the section does not give the

authority to issue summons3.

This position was enunciated in the case of Norode Baron Mukherjee v. State of West

Bengal, The power to issue summons or warrants, for that matter, comes from Section 204 of

the Code but that is only restricted to complaint cases. Moreover, although Section 61 is derived

from Sections 152 and 153 of the Code of 1872 which limited the serving of summons to the

accused only, Section 61 incorporates the spirit of Section 68 of the Code of 1898 which

applied to other persons as well. By virtue of Section 61, summons must be in writing, signed

and sealed¸ specifying the offence, must state the date and time when the person must

appearand must direct person summoned not to depart without leave. If these requirements are

not fulfilled, then no person can be convicted for non-compliance with summons under Section

174. But this would not mean that trial would be vitiated as the only way that might happen,

would be because of a defect in the trial proceedings itself4.

3
http://bdlaws.minlaw.gov.bd/sections_detail.php?id=75&sections_id=14823 (10-3-19)
4
http://myblog-rajbhu.blogspot.com/2014/12 (13-3-19)

5
Section 62 takes off from Section 61 and describes the actual serving of summons and who is

competent to serve it. In most cases, as the Section lays down, it is desirable that a police officer

should deliver the summons to the person concerned but in some cases an officer of the Court

or any other public servant may do the same. Section 64 and 65 offer solutions when the person

on whom the summons is to be served, is not found.

While the former talks about leaving the document in duplicate with any adult member of the

family, the latter states that in cases where no member of the household is present, the summons

should be affixed in some conspicuous part of the house in which the person ordinarily resides

and subsequently declare that the summon had been served or issue orders for fresh service.

Before such provisions are resorted to, it has to be shown by the officer concerned that due

diligence was exercised in searching for the person summoned5.

Only after that can the officer resort to the abovementioned provisions. Furthermore, as Section

64 clearly limits the service to adult members of the family, neither female members nor

servants can be included under the ambit of persons to whom the summons can be served. It

has to be kept in mind again that Section 65 can only be resorted to, if Section 64 does not

solve the problem. Sections 66, 67 and 68 provide for service to government servants, service

outside local limits and proof of service of summons respectively”.

Section 69 applies only to witnesses and lays down that summons can be sent to the witness by

registered post. In the case of Madan Mohan Shrivastava v. State, the accused was served

summons by registered post which the Court invalidated. The Court categorically laid down

that Section 69 was limited to witnesses only6.

5
ibid
6
http://www.shareyouressays.com/ code-of-criminal-procedure/118041 (13-3-19)

6
WARRANT

The Code discusses warrants of arrest from Section 70 onwards. "These warrants are generally

used for far more serious offences where issuance of summons would not achieve the desired

objective of procuring the attendance of the person concerned. Even so, a number of interests

need to be kept in mind, particularly the fundamental right to liberty”7.

Only when societal interests dictate that the person be kept in custody lest he or she absconds,

will the magistrate issue a warrant of arrest. “The Code does not define a warrant but as is clear

from the form of warrants, these are written orders issued and signed by the magistrate and

addressed to a police officer or some other person specially named, directing him or her to

arrest the person named in the warrant. In this way, a warrant is different with respect to a

summons as in the latter case, the summons is explicitly directed to the person sought to be

summoned while in the former, the warrant is directed to the person who is ordered to arrest8“.

The essential requirements for a warrant of arrest are that “it must be in writing, must be signed

by Presiding Officer, must be sealed, must clearly identify the person to be arrested, must

specify the offence charged, must name the persons directed to arrest, must indicate the

authority of the Magistrate, and must mention the age of the person sought to be arrested”. It

has to be kept in mind that warrants of arrest cannot, in any case, be general or blank. A warrant

directing officers to arrest unspecified persons is illegal. Moreover, conditional warrants

directing some action to be done, the failure of which would lead to arrest, are also deemed

illegal.

In the case of Alter Caufman v. Government of Bombay, the Magistrate issued a warrant

ordering the accused to remove themselves from India, failing which they would be arrested.

7
LawTeacher. November 2013. Criminal procedure code | LawTeacher. [online]. Available from:
https://www.lawteacher.net/free-law-essays/criminal-law/criminal-procedure-code.php?vref=1 [Accessed 13
mar 2019]
8
ibid

7
This warrant was deemed illegal because the authority to determine whether the accused had

done the needful was left to the officer entrusted with the arrest and not the Magistrate who

issued the warrant itself. Now, when an officer proceeds to arrest a person on a warrant which

is illegal, the right of private defence rests on that person to prohibit the officer from arresting9.

As is evident from Section 70(2), a warrant does not lapse; it remains valid as long as the

Magistrate does not explicitly revoke it. Section 71 basically deals with bailable warrants where

the person sought to be arrested can be released on execution of bond with sufficient sureties.

Bailable warrants are mostly issued in case of offences which are bailable but in some cases

bailable warrants have also been issued against non-bailable offences. An issue arose in a

Rajasthan High Court case where the Magistrate refused to cancel the warrant after the bail

bonds had been forfeited. The High Court, however, held that the magistrate was empowered

to cancel the warrant and had taken an erroneous view.

Sections 72 to 74 are inherently procedural and deal with direction of warrants to concerned

officers. Section 75 deals with notification of the substance of the warrant and mandates every

police officer (or any other officer) to notify the substance of the warrant to the person whom

he or she is arresting. Failure on the officer’s part would give the person sought to be arrested,

the right of private defence and consequently any resistance offered by such person will not be

punishable. Section 76 stipulates that the person arrested must be brought before the Court

without unnecessary delay10.

The time period,aoriginally, was not mentioned but with theaaddition of the proviso it is clear

that the delay, unless caused by extraneous circumstances, cannotube more than twenty-four

hours. Sections 77 to 80 talk about jurisdictionoof execution of warrant and while Section 77

9
Criminal procedure code | LawTeacher." LawTeacher. LawTeacher.net, November 2013. Web. 15 march
2019. <https://www.lawteacher.net/free-law-essays/criminal-law/criminal-procedure-code.php?vref=1>.
10
ibid

8
gives the functionaries the power to execute warrants anywhere in India, the other sections are

merely procedural and lay down elaborate rules of dealing with the execution of warrants

outside the local jurisdiction of the Courtaissuing it11.

This can be illustrated by a simple example. If, for example, the Metropolitan Magistrate issues

an arrest warrant for an accused and the accused is in Patna, then the officers directed may go

themselves and endorse the warrant by the Executive Magistrate of Patna district or the

Metropolitan Magistrate can forward it to the Executive Magistrate or the District

Superintendent of Police for execution12.

ISSUANCE OF WARRANT IN ADDITION TO OR IN PLACE OF SUMMONS

Section 87 of crpc dealspwith the in what circumstances the warrantpis issued in the place of

the summons. Even in cases where the Court is only empowered to issue a summons, it can, as

provided by Section 87, in two situations. First, if before the issuance of summons or after it

but before the time fixed for attendance, the Court is of the opinion that the person has

absconded or will not obey the summons. Alternatively, if the person concerned fails to appear

on the decided date with no reasonable excuse for such failure then the Court would have the

power to issue a warrant13.

11
(mar. 16, 2019, 10:04 PM), http://www.volokh.com/posts/1233241458.html.
12
ref>{{cite web|last=Teacher |first=Law |url=https://www.lawteacher.net/free-law-essays/criminal-
law/criminal-procedure-code.php?vref=1 |title=Criminal procedure code | LawTeacher
|publisher=LawTeacher.net |date=November 2013 |accessdate=16 march 2019 |location=Nottingham,
UK}}</ref>
13
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_85HNCK64.PDF (accessed on
19 march 2019)

9
Therefore, “the power to issue a warrant would depend on the service of summons and in cases

where there is no power to issue summons, he would not be able empowered to issue warrants

by virtue of this section14“.

In the case of C. McLenan v. State, the Calcutta0” High Court invalidated the magistrate’s

ruling that he was empowered to issue summons under 202 of the Act. Therefore, the Court

held that since the Magistrate had no power to issue summons under that section, consequently

he had no power to issue a warrant by virtue of Section 87. This section gives discretionary

powers to the Court to issue a warrant of arrest and such discretion has to be exercised

judiciously upon a consideration of the materials before the Court which would lead it to

conclude that the person has absconded or will not reply to the summons15“.

PROCLAMATIONS AND ATTACHMENT

Even after issuance of and warrant, thepCourt may find that the person concerned has either

absconded or is concealing himself. This would mean thatlthe Court cannot ensure the

attendance of that person unless it adopted some stringent measure. Section 82 of the Code lays

down that if the Court is satisfied that such are the circumstances then the Court will give a

time period of 30 days from the date of proclamation within which the person has to appear

before the Court. Hence, issuance of warrant is prerequisite for an order of proclamation.

Without having the authority to issue a warrant, a court cannot issue any order of

proclamation16.

These seemingly harsh measures are important as financial sanctions impel the person to come

to the Court. Therefore, before an order of proclamation is issued, what the Court must ensure

14
ibid
15
ibid
16
http://myblog-rajbhu.blogspot.com/2014/12/proclamation-and-attachment-of-property.html
|date=November 2013 |accessdate=19 mar 2019 |location=Nottingham, UK}}</ref>

10
is that it has the reasons for issuing such an order. An order of proclamation without sufficient

cause would be illegal and therefore any consequent action arising out of that order like

attachment would be deemed illegal as well17.

Therefore, much turns on the fact that whether the Court’s satisfaction that the person has

absconded or is concealing himself is justified or not. The meaning of the word ‘absconding’

thus has invited a lot of attention. Now, it is obvious that the word has a sense of continuity to

it. “A person cannot be said to have absconded if he was not present in the house for that day.

Absconding would occur if a person would run away hastily or secretly so as to avoid the legal

process18“.

In Vinod Kumar Khanna v. State, the petitioner sought to challenge the order of proclamation

by virtue of Section 482 of the Code. In that case, a notice of appearance was due to be served

on the petitioner but since he was in a foreign country, the notice was served on an official of

the companyuin which the petitioner was the chairman. The official had intimated that the

petitioner would appear before the Investigating Officer but on his non-appearance a warrant

of arrest was issued which also could not be executed. Thereafter, the Court thought it prudent

to issue a proclamation andothen proceed for attachment under Section 83 of the Code. The

petitioner contended that at no point of time had he evaded the warrant of arrest and that the

warrant of arrest never came to his knowledge and he could not have been said to have

absconded. This was invalidated by the Court as the facts did not point to such a conclusion.

The petitioner had officials who were working in India and it was inconceivable that he would

not be apprised of the notices and the subsequent warrant of arrest. Moreover, he had also

proceeded to execute a power of attorney to dispose of his assets so that the attachment would

17
http://myblog-rajbhu.blogspot.com/2014/12/proclamation-and-attachment-of-property.html free-law-
essays/criminal-law/criminal-procedure-code.php?vref=1> accessed 22 march 2019
18
ibid

11
not be carried out. All these facts pointed to the conclusion that the petitioner was well aware

of the notices and the warrant of arrest and on evasion of the same, could be said to have

absconded. Thus, as is evident from the case, knowledge of the order of the appearance, in

whatever form, and then non-appearance is essential to constitute absconding19.

The amendment to the Code in 2005 also brought in a few changes with regard to the order of

proclamation. A new subsection(4) was added to Section 82 which mandated that when a

person accused of an offence punishable by certain sections, including Section 302, fails to

appear within the specified time and place as given by the order of proclamation , he would be

declared a proclaimed offender. Section 174A was also included through the 2005 amendment

which stipulated a punishment of three years maximum with or without fine in case of

proclamation issued under Section 82(1) and seven years maximum with fine in case a

proclaimed offender.

Sections 83-86 deal with attachment and the effects arising thereof. Section 83 empowers the

Court to attach the property of any person concerned against whom a proclamation has been

issued. Therefore, an order of attachment can only be made after an order of proclamation has

been issued for justifiable reasons20.

This is in direct contrast to the Old Code where themattachment order could be issued at any

time, even simultaneously with the order of proclamation. Even in the present Code, the

attachment order can be made simultaneously with a proclamation order on two occasions: one,

when the property is about to be disposed of and two, the property is about to be removed from

19
http://www.shareyouressays.com 11 2013. All Answers Ltd. 04 2019 /knowledge/what-are-proclamation-
and-attachment-under-section-82-86-of-the-code-of-criminal-procedure/118041
20
ibid

12
the local jurisdiction of the Court. The Court can attach both moveable and immoveable

property but a curious wrangle arises when it comes to attaching joint family property21.

In Trigala Veeraya v. State, the Court laid down that the rights of the Government in case of

attachment of a part of the joint family property are the same as any coparcener. As the

coparcener derives an interest from the property, the Government too derives an interest and is

therefore entitled to the income accruing from that part of the property. Section 84 relates to

claims and objections regarding attachments. “If a person, other than the person proclaimed

person, has an interest in the property to be attached he may object to that attachment within

six months. Section 85 talks about release of the attached property on appearance of the

proclaimed person within the specified time and Section 86 lays down the rule regarding appeal

from order rejecting application for restoration of attached property22“.

Proceedings Against Absconders and Record of Evidence in their Absence

MEASURES TO ENFORCE APPEARANCE23

1. Attachment and sale of property-Sections 87 and 88 of the Code of Criminal Procedure

[Sections 81, 82, 83 and 84 of new Code] provide for the attachment and sale of the property

of any accused person or witness whose presence is required by a Criminal Court as a last

remedy for compelling his attendance. The procedure laid down must be strictly followed,

otherwise the attachment and subsequent sale will be liable to be set aside. The proper forms

21
http://www.aaptaxlaw.com/CRPC/Section-83-of-CRPC-How-Property-of-absconding-person-can-be-
attached.html (accessed on 23 march 2019 11:30 P.M)
22
<ref>{{cite web|last=Teacher |first=Law |url=https://www.lawteacher.net/free-law-essays/criminal-
law/criminal-procedure-code.php?vref=1 |title=Criminal procedure code | LawTeacher
|publisher=LawTeacher.net |date=November 2013 |accessdate=24 march 2019 |location=Nottingham,
UK}}</ref>
23
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_85HNCK64.PDF criminal-
procedure-code.php?vref=1> accessed 25 mar 2019

13
for the proclamation, attachment etc., to be used in such proceedings are given in Schedule V

of the Code.

2. Proclamation-No proclamation can issue under Section 87 unless a warrant has issued in

the first instance and the Court has reason to believe that the person against whom it was issued

has absconded or is concealing himself so that such warrant cannot be executed. The

proclamation must fix a date for the appearance of the person at a specified place and that date

must be not less than thirty days from the date of the publication of the proclamation. The

proclamation must be published in the manner specified in sub-section (2) of Section 87

[Sections 81, 82, 83 and 84 of new Code], and the Court should be careful to record the

statement as records the due publication of the proclamation as required by sub-section (3) of

that section. The Court has the discretion to issue an order for attachment of property

simultaneously with the issue of a proclamation. Section 88 (as amended in 1923) now provides

for the summary investigation of claims of objectors to the attachment by Magistrates. The

decision of the Magistrate can be challenged by a civil suit within a year.

3. Consequences of non-appearance of proclaimed person: Sale of property-If the

proclaimed person does not appear within the time specified in the proclamation, the property

under attachment remains “at the disposal of Government”. It can be sold at once at the

discretion of the Court when it is liable to speedy decay if the Court considers that the sale

would be for the benefit of the owner. But, otherwise it cannot be sold until the expiration of

six months from the attachment and until the disposal of claims of objectors (if any) by the

Magistrate.

4. Directions for sale: Only life interest can be sold in certain-In conducting sales, the

interest of the absconding person in the attached property which is to be sold should be clearly

specified so as to avoid complications in the future. It has been held by a Full Bench of the

14
Punjab Chief Court that only the life-interest of an absconder governed by agricultural custom

in ancestral immovable property can be sold under Sections 87-88, Criminal Procedure Code.

As a result the reversioners of the absoconder have a right to claim such property after the death

of the absconder (See 18 P. R. 1908 F. B., 52 P. R. 1915).

5. Property or its proceeds may be given to absconder if he appears before Court-If the

absconder appears or is apprehended and brought before the Court within two years from date

of the attachment of his property and satisfies the Court (i) that he did not abscond or conceal

himself for the purpose of evading execution of the warrant, and (ii) that he had no such notice

of the proclamation as could enable him to attended within the specified time, he can get the

property back or its net proceeds if it has been sold (Section 89).

RECORD OF EVIDENCE IN THE ABSENCE OF THE ACCUSED24

1. Introductory-The provisions of the Code of Criminal Procedure in regard to the taking and

recording of evidence in the absence of accused persons are important and should not be

overlooked.

2. Evidence recorded in absence of the absconding accused may be used against him in

certain cases-Section 512(1) [Section 299 of new Code] provides that whenever it is proved

that an accused person has absconded and there is no immediate prospect of arresting him, any

Court competent to try or commit such person for trial for the offence complained or may, in

his absence, examine the witnesses produced for the prosecution and record their depositions,

and such depositions may, on the arrest of the accused person, be used in evidence against him,

if the deponent is dead or is incapable of giving evidence, or his attendance cannot be

conveniently procured. It is also to be noted in connection with this the Section 164 enables a

24
http://www.mcrhrdi.gov.in/92fc/week4/CRPC.pdf/accesed on 27 mar 2019

15
Magistrate to record, in the same manner as evidence, any statement regarding an offence made

by an accused person whomsoever it may implicate.

3. Proceedings under Section 512-Proceedings under Section 512 [Section 299 of new Code]

should commence by evidence being taken and recorded (1) that the accused person has

absconded, and (2) that due pursuit having been made, there is no immediate prospect of

arresting him.

4. Medical evidence should be recorded in some cases-In cases where the crime has

terminated fatally, or where medical evidence would ordinarily be required at the trial the

evidence of the medical officer as to the cause of death or as to the injuries inflicted, should

invariably be recorded.

5. In cases where the crime has been committed by some persons unknown and the offence is

punishable with death or imprisonment for life, the High Court may order an inquiry similar to

that under Section 512 (1) of the Code [Section 299 of new Code] and statements recorded in

that inquiry can be used as evidence against the offender subsequently discovered.

Jharkhand High Court has referred to Division bench, to answer a question whether in an

anticipatory bail application preferred under section 438 Cr.P.C., the Court can look into the

legality or otherwise of issuance of process under section 82 Cr.P.C.

Reference was sought by the Single Bench of Jharkhand High Court in Kumar Anubhav Vs.

State of Jharkhand wherein the petitioner has been made an accused for an offence punishable

under section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition

Act. An anticipatory bail application was preferred by the petitioner in High Court on 9.9.2015

and on the same date itself, the process under section 82 Cr.P.C. was issued.

16
Section 82 of Code of Criminal procedure says that 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. Sub-Section (2)

and (3) of this section describes the procedure to be followed in proclamation.

The court observed that there are two conflicting decisions by High Court as regard to the

question whether anticipatory bail application, the Court can look into the legality or otherwise

of issuance of process under section 82 Cr.P.C.

In Mahendra Kumar Ruiya Vs. State of Jharkhand & Anr,25, it was held that a person

against whom proclamation under Section 82 Cr. P.C. has been issued is not entitled to the

relief of anticipatory bail but, proper compliance of Section 82 is very much essential. But in

Sheikh Anwar @ Sk. Anwar Vs. State of Jharkhand26, it was held that if anyone is declared

as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to

the relief of anticipatory bail.

In Mahendra Kumar case, the court had opined “strict compliance of sub-section (3) of Section

82 Cr. P.C. is very much required for declaring any accused as absconder. I would further like

to explain that Section 82 Cr. P.C. has mainly three parts. As per first part of the Section it is

well settled that issuance of warrant is condition precedent for issuance of process of

proclamation under Section 82 of the Code. The Court must be satisfied that it has reason to

believe that the accused has been absconding or concealing himself so that such warrant cannot

be executed. Second part suggest as to how proclamation has to be given effect or published to

make the accused acquaint that his appearance is required in connection with particular case

25
reported in 2013 3 JLJR 407
26
reported in 2014 (4) JLJR
17
before a particular Court. The third part as indicated under sub-section (4) of Section 82 of the

Cr. P.C. gives more discretion to make inquiry against an accused who has committed offence

indicated under sub- section (4). After recording reasons the Court can declare an accused of

such offence as proclaimed offender”.

The Court said that there is a conflict of opinion with regard to this issue and it would be

desirable that the matter be heard by the Division Bench.

Lavesh Vs.State (NCT of Delhi)27. it was held that considering the conduct of the petitioner

as he was not amenable for investigation, he was declared as an absconder and therefore there

was no question of grant of anticipatory bail.

Learned counsel has also referred to the case of State of Madhya Pradesh Vs. Pradeep

Sharma,28, wherein also as has been submitted by the learned counsel for the petitioner that

the accused persons were all along absconding and were not cooperating with the investigation.

Learned counsel further submits that declaring an accused as an absconder/proclaimed

offender, the same could be one of the grounds for non consideration of anticipatory bail but it

cannot be the sole ground while declaring the anticipatory bail application as not maintainable.

Reference has also been made in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujrat

and Ors,29, wherein the principles governing the grant of bail has been enumerated at

paragraph 23 of the said judgment. Submission has been advanced by the learned counsel for

the petitioner that there cannot be any strait jacket formula for consideration/non consideration

of grant of anticipatory bail and the judgements in the case of Lavesh (supra) and Pradeep

Sharma (supra) do not lay down that in all such cases, in which process under section 82 Cr.P.C.

has been initiated, the anticipatory bail application shall not be maintainable. With respect to

27
reported in (2012) 8 SCC 730
28
reported in (2014) 2 SCC 171
29
reported in AIR 2015 SC 3090
18
the other contentions, which have been advanced by the learned counsel for the petitioner, the

same are based on a judgement of this Court in the case of Mahendra Kumar Ruiya Vs. State

of Jharkhand & Anr30, wherein, in an anticipatory bail application consideration was also

made as to whether compliance with mandatory requirements of law prior to issuance of

process under section 82 Cr.P.C. has been followed or not.

Learned counsel has also referred to the provisions of Sections 482, 483 of Cr.P.C. and Section

227 of the Constitution of India to submit that the power of superintendence lies in the High

Court and therefore even in an application under section 438 Cr.P.C. before the High Court,

the legality or otherwise of issuance of process under section 82 Cr.P.C. can be looked into and

no separate proceeding is required to be instituted.

Mr. R.S. Mazumdar, learned senior counsel for O.P. No. 2, has countered the arguments

advanced by the learned counsel for the petitioner with respect to the first question formulated

and has submitted that the judgments rendered by the Hon'ble Supreme Court in the case of

Lavesh (supra) and Pradeep Kumar Sharma create a binding precedent and the law laid down

has to be interpreted in the strict sense of the term and there cannot be any liberal interpretation

of the same. It has been submitted that whatever may be the facts and circumstances of the

cases referred to by learned counsel for the petitioner, the only common thread binding both

the judgements are that an anticipatory bail application shall not be maintainable solely on the

ground of issuance of process under section 82 Cr.P.C. and the same cannot be circumvented

by contending that it may be an additional ground for not considering the anticipatory bail

application of an accused.

Learned senior counsel has submitted that there is no question of considering an anticipatory

bail application once process under section 82 Cr.P.C. has been issued and the Court is not to

30
reported in 2013 3 JLJR 407
19
see the conduct of an accused and whether he has cooperated with the investigating agency or

not. In this context, learned senior counsel has referred to the anticipatory bail application filed

on behalf of the petitioner praying for stay of warrant of arrest as well as the supplementary

affidavit and has submitted that the petitioner had appeared before the investigating officer

only with an umbrella of interim protection over him. It cannot be deduced in such

circumstances that the petitioner had cooperated with the investigating agency. Learned senior

counsel further submits that the petitioner has merely tried to distinguish the factual aspects of

the case of Lavesh(supra) and Pradeep Sharma (supra) but has not been able to distinguish that

the law laid down by the Hon'ble Supreme Court is not applicable in the facts and

circumstances of the case at hand. The contention with respect to second aspect of this

application has been answered by the learned senior counsel for the opposite party no. 2 by

making a reference to the case of Sheikh Anwar @ Sk. Anwar Vs. State of Jharkhand31 ,

wherein it was held that in view of the specific provision in the Code of Criminal Procedure

dealing with a specific subject, the other provisions of the Code cannot be resorted to by the

Courts. It has, therefore, been submitted that in an application under section 438 Cr.P.C. before

a High Court recourse cannot be taken by challenging the illegality of issuance of process under

section 82 Cr.P.C., which is an altogether different subject matter for which remedies are

available in the Code itself. Learned senior counsel, therefore, submits that in either of the

circumstances, the present anticipatory bail application is liable to be dismissed on the question

of maintainability itself.

Thus, from the above judgments, it is clear that in the anticipatory bail application, the Hon’ble

Court has considered the issuance of process under Sections 82 and 83 Cr.P.C. and has held

that the requirements before issuance of process has not been properly complied with and

31
reported in 2014 (4) JLJR
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thereafter the consideration has been made with respect to prayer for anticipatory bail of the

said petitioner.

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