- (1.) The subject matter of challenge in this criminal revision is an order whereby the learned Additional Chief Judicial Magistrate, Kalna issued warrant of arrest and proclamation of attachment against the petitioners in connection with Kalna P.S. Case No. 165/2013 under Sections 498A/304B/34 of the Indian Penal Code read with Sections 3 /4 of the D.P.Act.
(2.) It appears that the impugned order was passed nearly 2 months after the registration of the FIR and on the prayer of the investigating officer of the case. The issue arises for consideration whether a court can issue both warrant of arrest and proclamation of attachment simultaneously. As also whether the court below was justified on the prayer of the Investigating officer of the case to make the impugned order by merely recording seen the prayer of the Investigating officer and the prayer stands allowed
(3.) The core issues involved are centered around the interpretation of the provisions of Section 73, 82 and 83 of the Code of Criminal Procedure. While the first provision prescribes against whom and under what circumstances warrant of arrest can be issued, the remaining two prescribes the procedure for proclamation and attachment. Which are quoted below, for better application of the case. Section 73 Cr.P.C. Warrants may be directed to any person.- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71. Section 82 CrPC Proclamation for person absconding.- (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 (45 of 1860), 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 provision 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 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 authorise the attachment of any property belonging to such person within the district inn which it is made; and it shall authorise 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 order 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 any one 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 or in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one of his behalf; or (d) by all or any tow of such methods, as the Court thinks fit. (5) If the property ordered to be attached consists of livestock 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 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 (5 of 1908).;