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TMI Blog2003 (8) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... . Complaint for the offence punishable under Section 22A of the Minimum Wages Act was filed against the petitioner in 2000. The offence carries a sentence of fine to the maximum limit of ₹ 500/- and therefore is a `summons' case. Vide order dated 23.10.2000 the learned Metropolitan Magistrate, while taking cognizance summoned the accused through bailable warrants for a sum of ₹ 5000/- . Said order reads as under:- "23.10.2000 Present: Sh. O.P. Arya, complainant Accused by summoned with Bailable warrant in the sum of ₹ 5,000/- with one surety through SHO concerned. dusty for 3.8.01." 4. Section 204 Cr.P.C provides the procedure for issuing processes for procuring attendance of the accused while taking cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in warrants case appearance of the accused can be ordinarily procured through summons though the Magistrate has the discretion to issue a warrant. Word `shall' projects the mandatory nature of the provision so far as process in a summons case whereas work `may' in relation to a warrant case shows the discretionary power of the Magistrate. 6. Section 87 of Cr.P.C vests the discretion in the court which is empowered to issue the summons for appearance of any person to issue warrant of his arrest but in that case as the provision would show certain conditions are necessary to exist. Section 87 provides as under: "87. Issue of warrant in lieu of, or in addition to, summons- A court may, in any case in which it is empowered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 204 Cr.P.C. Subsequent orders passed by Metropolitan Magistrate particularly orders dated 3.8.2001 and 19.9.2002 do not spell out the reasons for issuing non-bailable warrants of arrest and process under Section 82/83 of Cr.P.C. Orders read as under:- "3.8.2001 Present: Inspector for MW. Accused Absent. He is deliberately avoiding service of B/W. Issue NBW against him through SHO/HC Sarita Vihar for 18.10.01. 19.9.2002 Present: Sh. Om Prakash and Pankaj Sharma for MW Accused absent. He is deliberately avoiding arrest. Issue Process U/S 82 & 83 Cr.P.C against accused through Sarita Vihar for 29.10.02." 10. As regards order dated 3.8.2001, reasons for issuing non-bailable warrants as prescribed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." " 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 proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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). " 13. It is manifest from the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve it nor can it rise about it. It has to remain within its precincts and cannot afford to traverse beyond it. Any order passed beyond the provisions and in violation of mandatory provisions empowering the court to issue warrant of arrest or proclamation under Section 82 or attachment of property under Section 83 have to be reasoned one and in accord with essential requirements. Curtailment of any person's liberty with the sledge of hammer does not comport with judicial discretion vested by the provisions of Criminal Procedure Code in the criminal court. More absolute power the court enjoys more circumspective and sparing use of it is expected. Absolute power does not admit element of arbitrariness. 16. I find that each and every order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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