When Can A Court Issue Non-Bailable Warrant Of Arrest, Process For Declaring A Person As Proclaimed Offender & Order of Attachment Under CrPC: Jharkhand HC Clarifies [Read Judgment]

The Jharkhand High Court has reiterated that non-bailable warrant of arrest and processes and order of attachment under the CrPC cannot be issued in a mechanical manner, and the court has to record its satisfaction with regard to the pre-requisites before passing such an order. "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," a bench of Justice Ananda Sen has held. The observation has been made in an application filed under Section 482 of CrPC for quashing the orders by which non-bailable warrant of arrest and process and order of attachment had been issued against the Petitioners, by the court of Chief Judicial Magistrate, Latehar. The Petitioners had contended that Court had issued non-bailable warrant of arrest in their names, without receipt of the service report of bailable warrant of arrest. Similarly, they submitted, without there being any service report of non-bailable warrant of arrest, process under Section 82 of CrPC had been issued for declaring the Petitioners as proclaimed offenders. Further, without any service of the process under Section 82 CrPC, attachment order in terms of Section 83 had been issued. Finding merit in the Petitioners' arguments, the High Court quashed the impugned order for having been passed without due application of mind. Issuance of Non-bailable Warrant of Arrest In terms of Section 73 of CrPC, the court opined that a Magistrate has jurisdiction and power to issue warrant of arrest, which can be directed against any (i) escaped convict, (ii) proclaimed offender, or (iii) against any person who is an accused of a non-bailable offence and is evading arrest. A person against whom warrant of arrest can be issued, must fall in either of the aforesaid three categories. In the case in hand, the court observed, when warrant of arrest was issued the Petitioners were neither escaped convicts nor proclaimed offenders. The Petitioners had failed to appear before the Court and they could, at best, fall in the third category, i.e., "an accused of a non-bailable offence and is evading arrest", the court noted. On this aspect, the court clarified that only being an accused of a non-bailable offence is not a ground to issue warrant of arrest. Emphasizing on the conjunction "and", the court held that the accused must also be evading arrest. It observed, "Only being an accused of a non-bailable offence is not a ground to issue warrant of arrest, as per the provisions of Section 73 of the Code. The said accused, who is wanted in a case involving a non-bailable offence, must also be evading his arrest. The word 'and' used in Section 73(1) of the Code is a conjunctive clause. Thus, both the conditions should simultaneously exist to enable the Court to issue warrant of arrest. This position of law should have been considered by the Court while issuing a warrant of arrest. This means that a person not only should be an accused of an offence, non-bailable in nature, but also should be found evading his arrest. There is nothing in the impugned orders to suggest that the petitioners were evading arrest." The court added that execution of non-bailable warrant amounts to "curtailment of liberty" and whenever liberty of a person is to be curtailed the same has to be done strictly in accordance with the law so provided for. In view thereof and in terms of the Supreme Court ruling in Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791, the High Court held, "In this case, it [liberty] is being curtailed by issuance of non-bailable warrant of arrest. Thus, the Court has to record his satisfaction that the conditions laid down in the law for issuing warrant of arrest has been fulfilled and the procedure has been complied with. This satisfaction of the Court should be reflected in the order itself, to be gathered from the record, then only warrant of arrest can be issued. The Court has to prima-facie be satisfied that the person accused of committing a nonbailable offence is also evading his arrest. There has to be material before the Court to reach at the aforesaid conclusion. Without recording such 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. 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." Issuance of Proclamation for Person Absconding Section 82 of CrPC prescribes the procedure for declaring a person as a "proclaimed offender" and prescribes that only after the...

When Can A Court Issue Non-Bailable Warrant Of Arrest, Process For Declaring A Person As Proclaimed Offender & Order of Attachment Under CrPC: Jharkhand HC Clarifies [Read Judgment]

Akshita Saxena

Tags