Saturday, October 1, 2022

Jharkhand HC Says Non-Compliance Of Legal Provisions Renders The Order Passed As Illegal

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The Jharkhand High Court on Monday set aside the warrants issued and process initiated against the accused for not appearing before the Court on the ground of non-compliance of the mandatory provisions under Criminal Procedure Code.

In the present case, the trial court had declared the petitioner a permanent absconder, and had issued a permanent warrant of arrest against him. The petitioner filed a petition under section 482 for quashing of bailable and non-bailable warrant of arrest,and process under Section 82 and 83 of the Code of Criminal Procedure issued by lower Court against the petitioner to procure his attendance.

Section 81 of Cr.P.C. states that if any Court has reason to believe  that any person against whom a warrant has been issued by it has absconded or is concealing himself to hamper the execution of that warrantthe Court may publish a written proclamation requiring him to appear in 30 days at a specified place and at a specified time.

When such proclamation is made by the Court under Section 82 an order authorising the attachment of any property belonging to such person within the district may also be passed under Section 83 of Cr.P.C.

According to the petitioner, the non-bailable warrant of arrest was issued against the petitioner even without the service of bailable warrant. Similarly, without any service report of non bailable warrant of arrest, proclamation was made under section 82 and attachment his property was ordered under Section 83 to ensure attendance of the accused.

The petitioner said that in order to issue orders under Section 82 and 83 of Cr.P.C. the Court needs to apply its mind and satisfy itself that proclamation and attachment of the property are essential to procure attendance of the accused, and if satisfied, the reasons should be clarified in the order itself. The Court has however failed to record any such satisfaction, invalidating the orders. Thus, the orders need to be set aside in absence of any subjective satisfaction based on the materials on record, since the consequence of such orders is very serious, and therefore they must be passed judiciously and not mechanically.

The petitioner relied on the order of the Apex Court stating that even the Supreme Court has previously held that the Court has to be very cautious while issuing a warrant of arrest as it is a very serious act, which also directly affects the rights of an individual.

The State’s Counsel said that the orders were issued against the petitioner when he failed to appear before the Court. There is no illegality in the impugned orders since when an accused fails to appear in Court, the Court, can take all coercive steps to procure his attendance.

Acting upon the petition, the single judge bench of Justice Ananda Sen, observed that none of the provisions of Sections 73, 82 and 83 of the Code had been complied with by the Court below while passing the impugned orders. The impugned orders are invalid on grounds of non-compliance of the mandatory provisions of law, and must be quashed and set aside.

The Court while allowing the petition ordered the case to be remitted to the trial court for passing of fresh order in accordance with law, after complying with the provisions as provided in the relevant Sections of Code of Criminal Procedure and also in terms of the discussion and observations made in the present petition.

-India Legal Bureau

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