Proclaimation Order Not Possible in Non Henious Crimes

Case: Arun Kumar Parihar v. State (GNCTD of Delhi)

Case No.: Crl M.C. No. 863/2021

Court: Hon’ble High Court of Delhi

Bench: JUSTICE ANU MALHOTRA

INTRODUCTION:

In criminal matters, pending investigation or trial it is significant for court to exercise its discretion in balancing the personal or individual freedom of the accused and social interest of letting into the society a person who has committed an offence and thus a menace. The Delhi High Court in this case, while deciding the matter and perusing the law and judicial precedents on the subject carefully balanced the social and individual interest.

FACTS OF THE CASE:

The petitioner/accused in present case has a FIR registered against him vide No. 147/2020, PS EOW, under Sections 406/420/120B of the Indian Penal Code, 1860 for siphoning of funds. The police authority asked the accused to cooperate in the investigation and as per the status report filed by the IO in the court, the accused not only joined the investigation but also answered the questions asked from him, however the accused intentionally avoided certain queries posed to him by the officer and later sent written unsigned replies to the queries posed to him. The answers were not upto the satisfaction of the IO does believe that there is need for accused for interrogation and conducted raids wherein on not being able to find him applied to the Court of Ld. MM having jurisdiction to obtain non-bailable warrants against the accused and subsequently proclamation u/s 82 Cr.P.C. for the quashing of both the present proceedings were instituted by the Court.

CHARGES:

Section 406 IPC: Punishment for criminal breach of trust

Section 420 IPC: Cheating and dishonestly inducing delivery of property

Section 120B IPC: Punishment of criminal conspiracy

OBSERVATIONS OF THE COURT:

The offences for which the accused was charged do not find mention in Sec. 82(4) Cr.P.C. thus the accused cannot be declared as a proclaimed offender.

The Hon’ble Supreme Court in Inder Mohan Goswami and Ors. Vs. State of Uttaranchal and Ors. in Crl.A.1392/2007 held that non-bailable warrants should not be issued when the desired result can be obtained through issue of summons or bailable warrants and to be issued when:

“• it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.”

and further held that though no straitjacket rule can be laid down but the court should first issue summons, followed by bailable warrants and when court is convinced that accused is deliberately concealing then non-bailable warrants unless the nature of offence committed is heinous and there is apprehension of the accused destroying the evidence or evading the process of law.

The Hon’ble Supreme Court in State through C.B.I. Vs. Dawood Ibrahim Kaskar and Ors. Held that though it cannot be said that the magistrate does not exercise his power to aid the police authority in the investigation of the crime but the power under Chapter VI Cr.P.C. Sec. 61-90 (Process to compel appearance) should be exercised with discretion on the basis of material placed on record and cannot be done merely to aid the police in investigation. And further the Hon’ble High Court of Punjab and Haryana in Gurjeet Singh Johar Vs. State of Punjab and Haryana held that said powers cannot be exercised to enlarge the efforts of police qua its investigation.

HELD:

In present case, the court issued non-bailable warrants and process for proclamation merely on the ground that the accused/petitioner did not provide the answers as desired by the Police officer and avoided answer few queries, when the accused has a fundamental right against self-incrimination under Art. 20(3) of Constitution of India. Thus, in the light of the provisions and judicial precedents as mentioned above set aside the non-bailable warrants and order issuing process under sec. 82 Cr.P.C. against the accused.

CONCLUSION:

The processes meant for compelling the appearance before the Court are meant to ensure the effective dispensation of justice especially when the accused is deliberately evading the process of law or concealing himself from the court however same should not be misused by the investigating authorities merely to avoid responsibilities and should carry their investigation to its logical end as investigating authorities have power to search for the accused throughout the territory of Indi and specifically in the cases of cognisable offences where police has the power to arrest without the warrant. Issuance of non-bailable warrants or proclamation against an accused would interfere with the personal liberty of the individual as well as enhance unnecessary workload of the courts, this would be specifically unreasonable when the accused has joined the investigation like in this case.