Subhash vs State

SANJEEV SACHDEVA, J

Petitioner impugns order dated 31.08.2018 of the Revisional Court dismissing the Review Petition filed by the petitioner impugning the order dated

16.07.2018, whereby process under Sections 82/83 of the Code of Criminal Procedure was initiated against the petitioner in FIR No. 193/2018.

Subsequent to the said orders, order dated 06.09.2018 has been passed being a consequential order to the order dated 16.07.2018 declaring the

petitioner as a Proclaimed Offender.

Learned Senior counsel for the petitionerinter alia contends that there was no cause for the Trial Court to initiate process under section 82/83 CrPC

and further to declare the petitioner as a Proclaimed Offender. Â

Learned Senior counsel further contends that on 22.06.2018, counsel for the petitioner was present in Court and petitioner was directed to join

investigation. Â

It is submitted that without requiring the petitioner to join investigation, the Investigating officer on the same date moved an application for issuance

of non-bailable warrants against the petitioner. Further, on 16.07.2018, an application was moved for issuance of process under Sections 82/83 of the

Code of Criminal Procedure on the ground that warrants could not be executed against the petitioner. Â

It is contended that no efforts were made to trace out the petitioner and there was no notice directing the petitioner to join investigation. Further, it is

further submitted that simultaneous process under Sections 82/83 is not permissible in law and the impugned order shows complete non application of

mind. It is submitted that prior to an order under section 83 being passed court has to record satisfaction that process under Section 82 has been

completed and sufficient time has been given to the proclaimed person to appear before the Trial Court.

Learned Senior counsel further contends that the petitioner was not aware of any non-bailable warrants having been issued. The petitioner is willing

to join investigation and as and when so required by the Investigating Officer.

Learned APP for the State submits that there was due cause for the Investigating Officer to seek initiation of process under Sections 82 and 83.

On perusal of the record, I am satisfied that due process as mandated by Sections 82 and 83 was not followed prior to the impugned orders being

passed. Â

On 22.06.2018, petitioner was represented before the Trial Court and the court directed the petitioner to join investigation at the earliest, inter alia

to specify the location for securing the CCTV footage. No time or date was fixed by the Trial Court directing the petitioner to join investigation.

Record does not reveal that any steps were taken by the Investigating Officer after the order was passed requiring the petitioner to join

investigation and that the accused failed to comply with the same. Further, record does not reveal the steps taken for execution of the non-bailable

warrants.

A composite order under Sections 82/83 is not permissible in law. Prior to an order under section 83 being passed there has to be an order under

section 82 and the process as prescribed therein followed. It is only after the court is satisfied that the process under section 82 has been followed and

the circumstances so warrant that court can pass an order under section 83 CrPC. Admittedly in the present case, this course has not been adopted

and court has passed a composite order under section 82 and 83 CrPC.

Learned APP for the State submits that without getting into the controversy, the petitioner be directed to appear before the Investigating officer.

In view of the above, the impugned order dated 16.07.2018, the non-bailable warrants issued against the petitioner and the order dated 06.09.2018

are quashed. Petitioner is directed to appear before the Investigating officer on 08.10.2018 at 4:00 P.M. at Police Station Govind Puri.

Petition is disposed of in the above terms.

Order Dastiunder signatures of the Court Master.