Case Background
This case arose from Pachrukhi P.S. Case No.136 of 1996, in Siwan district. The criminal case was registered under Sections 341, 323, 324 and 307/34 of the Indian Penal Code. After investigation, the case was committed to the Sessions Court and numbered as Sessions Trial No.462 of 1997.
The present petitioners were accused persons in that sessions trial. They had been granted bail by the Sessions Court after commitment of the case. The orders granting them bail were passed on 9.4.2010 and 26.4.2010.
One of the co-accused, Ramnath Singh, died in 1999. Information about his death was given to the trial court and a report was called for. While that report was pending, the case file was transferred from one Sessions Court to another.
During this transfer process, on 3.4.2012, the bail bonds of the petitioners were cancelled and a non-bailable warrant (N.B.W.) was issued against them. The petitioners later stated that they had no knowledge either about the transfer of the case or about the issuance of the non-bailable warrant. They also claimed that the warrant was never executed by the police.
Subsequently, on 6.1.2015, the trial court issued processes under Sections 82 and 83 of the Code of Criminal Procedure (Cr.P.C.), declaring the petitioners as proclaimed offenders (absconders) and simultaneously ordering attachment of their property.
Finally, by order dated 16.5.2015, the trial court declared the accused as absconders and issued a permanent warrant of arrest against them. Aggrieved by this order, the petitioners approached the Patna High Court through Criminal Revision No.656 of 2017.
What the Court Examined and Decided
The criminal revision came before Hon’ble Mr. Justice Arun Kumar of the Patna High Court. The petitioners challenged the legality of the trial court’s order dated 16.5.2015, under which they were declared absconders and a permanent warrant of arrest was issued, along with earlier orders under Sections 82 and 83 Cr.P.C.
On behalf of the petitioners, it was argued that the basic court record had suffered serious disruption. The record of the trial court was burnt in an accidental fire that occurred in the record room of the Siwan Judgeship. The record was reconstructed only on 16.3.2017.
Counsel pointed out that the petitioners were on bail and had in fact appeared before the Sessions Court after their case was committed. They had obtained bail orders dated 9.4.2010 and 26.4.2010. According to them, the subsequent cancellation of their bail bonds on 3.4.2012 followed the transfer of the case from one Sessions Court to another, and they were unaware of this transfer.
It was further submitted that there was no execution report of the non-bailable warrant issued against them. There was no material to show that they had absconded or concealed themselves to avoid arrest. Despite this, the trial court issued proclamation under Section 82 Cr.P.C. and ordered attachment of their property under Section 83 Cr.P.C. simultaneously, which, it was argued, is contrary to law.
The petitioners’ counsel stressed that Sections 82 and 83 Cr.P.C. cannot normally be invoked together without fulfilling specific legal requirements. In particular, for simultaneous issue of proclamation and property attachment, the Court must have reasons recorded in writing, based on material such as an affidavit, indicating that the person is about to dispose of or remove his property.
On the other hand, counsel for the State argued that the petitioners had not been appearing before the trial court for a long time. According to the State, repeated processes had to be issued to secure their presence, and therefore the trial court was justified in declaring them absconders and ordering the property attachment.
The High Court carefully looked into the rival submissions and the order sheets produced by the petitioners. From the record, the Court found that both accused had indeed been on bail and had appeared before the Sessions Court after commitment. The record also showed that the case file had been transferred from one court to another several times.
Importantly, the High Court noted that there was no service report showing execution of the non-bailable warrant. There was also no report that the petitioners were evading arrest, or that the police were unable to arrest them because they had absconded.
Despite this absence of evidence, the trial court, by its order dated 6.1.2015, had issued processes under both Sections 82 and 83 Cr.P.C. simultaneously. This was done to proclaim the accused as absconders and to attach their properties. Even these processes were not shown to have been effectively executed by the police. Nevertheless, by the impugned order dated 16.5.2015, the trial court declared the accused as absconders and issued a permanent warrant of arrest.
To assess the legality of these steps, the High Court reproduced Section 83 Cr.P.C., which deals with attachment of property of a person absconding. Under sub-section (1), the Court issuing a proclamation under Section 82 may, for reasons recorded in writing, order attachment of the property of the proclaimed person at any time after issuing the proclamation.
The proviso to Section 83(1) allows simultaneous issuance of proclamation and property attachment only in a specific situation. This is when, at the time of issuing the proclamation, the Court is satisfied, by affidavit or otherwise, that the person in respect of whom the proclamation is to be issued is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local jurisdiction of the Court.
The High Court emphasised that this condition is the only basis under which both processes under Sections 82 and 83 Cr.P.C. can be issued together. In the absence of such satisfaction, supported by material on record, the Magistrate cannot lawfully issue both processes simultaneously.
Applying this requirement to the facts of the present case, the Court found that there was no affidavit or report from the police or the prosecution stating that the petitioners were about to dispose of or remove their property. There was also no execution report after the issuance of the non-bailable warrant showing that the petitioners were evading arrest or could not be apprehended.
Because of these gaps, the High Court held that the issuance of both processes—declaring the petitioners proclaimed offenders under Section 82 and simultaneously ordering attachment of their property under Section 83—was contrary to the provisions of law.
Consequently, the impugned order dated 16.5.2015, by which the trial court declared the petitioners absconders and issued permanent warrants, was set aside.
However, the High Court did not give the petitioners unconditional relief. It directed that the petitioners must surrender before the trial court within a fortnight from the date of receipt of the High Court’s order. It further directed that after such surrender, any bail petition filed by the petitioners should be considered on its own merits by the trial court.
The High Court also gave a direction for speedy disposal of the main sessions trial. It instructed the trial court to expedite the trial and to conclude it preferably within one year.
With these observations and directions, the criminal revision application was allowed.
Why This Judgment Matters
This decision of the Patna High Court is important for accused persons, lawyers and trial courts across Bihar. It shows that serious steps like declaring someone an absconder and attaching property cannot be taken casually.
The Court made it clear that before issuing both proclamation and attachment simultaneously, the trial court must have specific material on record. There must be some evidence, such as an affidavit or report, that the accused is attempting to dispose of or remove his property from the court’s reach.
For ordinary citizens facing criminal cases, the judgment underlines that their rights continue even after a case is transferred or records are damaged. If a non-bailable warrant or absconder order is passed without proper legal basis or without proper service, a higher court can correct it.
At the same time, the judgment reminds accused persons that they must appear before the trial court and co-operate with the trial. Even while setting aside the illegal order, the High Court insisted that the petitioners surrender and then seek bail on merits. This balances the rights of the accused with the need to complete long-pending trials.
Legal Issues and Answers
Issue: Could the trial court legally issue proclamation under Section 82 Cr.P.C. and attachment of property under Section 83 Cr.P.C. simultaneously against the petitioners, and declare them absconders with a permanent warrant, without material showing they were disposing of or removing their property or evading arrest?
Answer: No. The Patna High Court held that in the absence of an affidavit or other material satisfying the condition under the proviso to Section 83(1) Cr.P.C., and without any execution report of the non-bailable warrant or proof of evasion, the simultaneous issuance of processes under Sections 82 and 83 and the declaration of the petitioners as absconders with permanent warrants was contrary to law. The impugned order dated 16.5.2015 was therefore set aside, subject to the petitioners surrendering before the trial court.
Cases Cited by the Court
- The judgment does not cite or rely upon any previous decided cases. It interprets Sections 82 and 83 of the Code of Criminal Procedure directly.
Case Details
Case Number: Criminal Revision No.656 of 2017; arising out of Pachrukhi P.S. Case No.136 of 1996; Sessions Trial No.462 of 1997
Case Title: Munshi Singh & Anr. v. The State of Bihar
Coram: Hon’ble Mr. Justice Arun Kumar
Date of Judgment: 22-08-2017
Citation: 2019 (2) PLJR 943
Advocates:
- For the Petitioners: Mr. Prashant Kumar, Advocate; Mr. Animesh Kumar, Advocate
- For the Respondent: Smt. Pushpa, Advocate
- For the State: Mr. Ajay Kumar No.1, A.P.P.
Nature of the Case: Criminal revision challenging trial court order declaring accused absconders, issuing proclamation and attachment (Sections 82 and 83 Cr.P.C.) and permanent warrant of arrest.
Link to Judgment: Patna High Court Judgment
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