Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Srikant Upadhyay v. The State of Bihar has held that an accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under Section 82 of the Criminal Procedure Code, 1973 (CrPC) is pending against him.

What was the Background of Srikant Upadhyay v. The State of Bihar Case?

• In this case, the present appeal before the Supreme Court is directed against the order passed by the High Court of Judicature at Patna whereby and whereunder the application for anticipatory bail filed by the appellant was dismissed.
• The application was dismissed on the ground that the non-bailable warrant and the proclamation was issued against the accused for defying the lawful orders of the Trial Court and attempting to delay the proceedings.
• The pre-arrest bail/anticipatory bail application was moved in connection with the case registered against him and co-accused under the provisions of the Indian Penal Code, 1860 (IPC).
• The appeal was dismissed by the Court.

What were the Court’s Observations?

• The Bench Comprising of Justices C.T. Ravikumar and Sanjay Kumar observed that it is obvious that the position of law, which was being followed with alacrity, is that in cases where an accused against whom non-bailable warrant is pending and the process of proclamation under Sections 82 and 83 of CrPC is issued, is not entitled to the relief of anticipatory bail.
• The Court relied on the judgment given in the case of Lavesh v. State of NCT of Delhi (2012), wherein it was held when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the CrPC, he is not entitled to the relief of anticipatory bail.

What are the Relevant Legal Provisions Involved in it?

Section 82 of CrPC

• This Section deals with the proclamation for a person absconding. It states that—

(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows: —

(i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides.

(b) It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village.

(c) A copy thereof shall be affixed to some conspicuous part of the Court-house.

(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) Where a proclamation 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 of CrPC

• This Section deals with the attachment of property of person absconding. It states that—

(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 of 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 his property, or

(b) Is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.

(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made—

(a) By seizure; or

(b) By the appointment of a receiver; or

(c) By an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or

(d) By all or any two of such methods, as the Court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases—

(a) By taking possession; or

(b) By the appointment of a receiver; or

(c) By an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

(d) By all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide by the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908.