Jharkhand High Court
Jharkhand High Court
Litigation News

"Mere absence" in Court does not imply accused is evading arrest, cannot be sole ground to issue non-bailable arrest warrant: Jharkhand HC

"The Court has to prima facie be satisfied that the person accused of committing a non-bailable offence is also evading his arrest. There has to be material before the Court to reach at the aforesaid conclusion."

Rintu Mariam Biju

The Jharkhand High Court has reiterated that the issuance of non-bailable arrest warrants, proclamations of accused as absconding and orders of attachment under the Code of Criminal Procedure (CrPC) can be issued only after the conditions envisaged in the respective sections are "strictly" followed.

Emphasizing this aspect, a Single judge Bench of Justice Ananda Sen stated that such orders cannot be passed in a mechanical manner.

"Non-recording of subjective satisfaction in the order will make the order bad and a non-speaking one. A non-speaking order involving a procedure, which attracts a penal offence (if the order is not complied with), cannot sustain in the eyes of law."
Jharkhand High Court

The observations were made in an application filed under Section 482, CrPC to quash orders passed by the Court of Chief Judicial Magistrate, Latehar.

Why "mere absence" of accused in Court cannot lead to a Non-Bailable Warrant

The petitioners contended that the Court below had issued a non-bailable warrant of arrest (Section 73, CrPC), and thereafter issued orders to declare the accused proclaimed offenders (Section 82, CrPC) before issuing an attachment order (Section 83, CrPC) in the most mechanical manner.

It was their case that the Magistrate had not recorded any subjective satisfaction that the mandatory preconditions outlined in the CrPC for issuing such orders were present.

The State Government countered that the challenged orders were issued as the petitioners failed to appear before the Magistrate. It was argued, therefore, that the Court had no other option but to issue the warrants of arrest and thereafter, the processes under Sections 82 and Section 83 of the CrPC.

The Court firstly observed that a non-bailable warrant can only be issued if the accused is (i) escaped convict, or (ii) a proclaimed offender, or (iii) a person waccused of a non-bailable offence and who is evading arrest.

In the present case, the Court observed that when warrant of arrest was issued, the petitioners were neither escaped convicts nor proclaimed offenders.

As they had not appeared before the Court, they could, at best, fall in the third category, i.e., "an accused of a non-bailable offence and is evading arrest."

As far as this third category is concerned, the judge emphasised that the accused person concerned must have fulfilled both conditions for the issuance of a non-bailable warrant i.e. "The said accused, who is wanted in a case involving a non-bailable offence, must also be evading his arrest."

However, the Court proceeded to point out that, "There is nothing in the impugned orders to suggest that the petitioners were evading arrest."

Addressing the submissions made by the State, and given that the Magistrate had only recorded that the accused were absent in Court before issuing the non-bailable warrant, the High Court emphasised,

"Mere absence of the accused cannot give rise to a presumption that he is evading arrest, which in turn cannot be the sole ground to issue warrant of arrest."
Jharkhand High Court

The Court opined, "Without recording subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the materials placed before the Court, warrant of arrest cannot be issued. This satisfaction can be derived from the police paper/ case diary."

In this regard, the Court also took critical note that there was nothing to indicate that a report of a bailable warrant being served was before the Magistrate prior to the issuance of the non-bailable warrant.

The Court, therefore, quashed the order issuing the non-bailable warrant, observing that, "Thus, the order issuing warrant of arrest, without recording satisfaction that the accused are evading their arrest, is not in consonance with the provisions of Section 73(1) of the Code."

Court must record reasons before issuance of order to declare "Proclaimed Offenders"/ for attachment of property

The High Court proceeded to quash the orders passed by the Magistrate to declare the accused as "proclaimed offenders" and for the subsequent attachment of their property.

This was in view of the fact that the prerequisites of the CrPC provisions enabling the issuance of such coercive orders were not present in this case, the Court found.

As far as the issuance of orders to declare an accused a "proclaimed offender", the Court pointed out that under Section 82, CrPC a person can be so declared "only after the Court is satisfied that the person is absconding, or is concealing, and it is not possible to arrest him."

The Court added that, "This satisfaction has to be recorded in the order while issuing processes under Section 82 of the Code."

Pertinently, the Bench emphasised that, "Non-recording of subjective satisfaction in the order will make the order bad and a non-speaking one. A non-speaking order involving a procedure, which attracts a penal offence (if the order is not complied with), cannot sustain in the eyes of law."

In other words,

"When violation of any procedure of law attracts a penal provision (herein declaration as proclaimed offender), the procedure, which seeks to declare him an offender, has to be strictly followed and cannot be relaxed. This penal provision makes compliance of Section 82(3) of the Code mandatory in nature."
Jharkhand High Court

On the other hand, in the present case the Court found that the coercive order was passed merely because the accused was absent, in a most mechanical manner and without recording subjective satisfaction as to why it is necessary to issue the proclamation.

In this regard, it was pointed out that there was no material indicating that the petitioners had absconded or were concealing themselves. Further, neither the place nor the date of appearance of the accused was mentioned in the order sheet, which is mandatory as per Section 82(1), CrPC

"These laches make the order issuing processes under Section 82 of the Code, absolutely bad and unsustainable in the eyes of law. Thus, the said order is also, hereby, quashed and set aside", the Court held.

Similar, the attachment order issued under Section 83. of the CrPC against the petitioners were also quashed after noting that the order did not reflect any reasons warranting such a step.

"It is ... the mandate of the law that the reasons for issuing attachment order has to be recorded in the order itself. Non recording of the reasons will make the order invalid and unsustainable."

The Court, ultimately ruled,

"In view of what has been discussed and held above, I find that none of the provisions, as envisaged in Sections 73, 82 and 83 of the Code has been complied with by the Court below. Non-compliance of the mandatory provisions of law renders the impugned orders, by which order issuing non bailable warrant of arrest, proclamation under Section 82 of the Code and attachment order, in terms of Section 83 of the Code have been passed in this case, are bad and, thus, are quashed and set aside."

Jharkhand High Court

The matter was, therefore, remitted back to the lower Court to be dealt with afresh, in compliance with the law.

[Read the judgment]

Jharkhand High Court order.pdf
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