9911796707
TMI Blog2007 (10) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 82/83 Cr.P.C. issued against the petitioner is stayed till 19th September, 2007 provided the petitioner deposit a sum of ₹ 2,500/- as adjournment costs with the trial court by that date and appear before the trial court on that day. 4. On 19th September, 2007 as directed by this Court, the petitioner appeared before the trial court who passed the following order, relevant portion of which reads as under: Accused has appeared along with the counsel and has moved the bail application and annexed the copy of the order of the Hon'ble High Court of Delhi dated 17.09.07 in which he sought the stay of the order dated 31.05.07 and 25.07.07 whereby the process under Section. 82/83 Cr.P.C. was issued against the accused. The time requisite for process under Section. 82 Cr.P.C. had already expired on 29.08.07 when the process server returned the execution reports of the said process. Today the case was fixed for recording of the statement of the process server so that the accused could have been declared as a Proclaimed Offender and the case should have been fixed for recording the evidence under Section. 299 Cr.P.C. Although on 17.09.07 there was no cause of action in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri ASJ, Delhi/07.05.2007 10. On 31st May, 2007, the trial court passed the following order: Present: Deemed APP for the complainant The tenant at the premises in question informed that accused is residing at Daryaganj, Delhi. Issue NBW against the accused through SHO, P.S. Sangam Vihar, New Delhi for 25.07.07. Sd/- Rakesh Tewari ASJ, Delhi/31.05.2007 11. According to these proceedings, prima facie, it is apparent that the petitioner was never served with any summon nor he was avoiding to receive the summon. Be that as it may, on 25th July, 2007, the trial court passed the following order: Present:- Deemed APP for the complainant company The accused being the landlord of the premises in question seldom visits the premises as per report on NBW. Issue process under Section 82/83 Cr.P.C. against the accused through SHO, PS. Sangam Vihar, New Delhi on the last known address for 29.08.07. Sd/- Rakesh Tewari ASJ, Delhi/25.07.2007 12. On 29th August, 2007, the following order was passed: Present: Deemed APP for the complainant company Process under Section 82/83 Cr.P.C. received back against the accused. Let the Process Server be summon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... published under Sub-section (1) is in respect of a 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, 459 or 460 of the Indian Penal Code, 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. (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). 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 or 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation. 18. The expression 'reason to believe' occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term 'absconded' is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had 'absconded' or 'concealed himself.' 19. The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjunctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory. 20. Here the question to be seen is as to whether proclamation under Section 82 Cr.P.C. has been effected in accordance with law or not. 21. As per proclamation under Section 82 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f not less than 30 days from the date of the publication under Section 82. The words 'at any time' in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence. 27. So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void. 28. When on 29th August, 2007, no valid proclamation under Section 82 and 83 Cr.P.C. has been effected, then where was the question for the trial court for recording the statement of the process server so, that the petitioner could have been declared as a proclaimed offender and case should have been fixed for recording the evidence under Section 299 Cr.P.C. It appears that the trial court was in undue haste and was bent upon to decl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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