TMI Blog1993 (3) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant filed an application under Section 482, Cr.P.C. stating that the police was trying to arrest him on the strength of a so called confession made by co-accused Rishi and Yogendra Singh to the police which was not even admissible and there was hardly any other material against the applicant. The applicant had set up a case of mala fide on the part of the police and the learned counsel had further submitted that the bail matters were being dealt with in a lethargic manner at Tehri Garhwal. Considering the entire circumstances of the case, it was directed that if the applicant surrendered and applied for bail, his bail application may be considered the same day by the learned Magistrate concerned, but if the disposal of the bail application was adjourned, the applicant may be released on executing a personal bond till such adjourned date only. The same relief was granted in respect of bail application if moved before the Court of Sessions. This order was passed on 30-9-1992. The present application has been moved on 8-1-1993 stating that even though the applicant wanted to surrender he was not taken into custody and that Sri Naresh Jain, learned C.J.M., Tehri Garhwal, was try ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. 7. Sri Naresh Jain appeared before me and has filed his counter affidavit. He also brought another file separately opened by him on the basis of the supplementary charge-sheet against the applicant. Thus, two parallel files were being maintained in respect of the same case by Sri Jain. It is distressing to note that some papers and orders are in one file while other papers and orders are in the other file. The memo of attachment of property is very much there on the record but Sri Jain was unable to tell when the proclamation under Section 82, Cr.P.C. was issued and when the order of attachment under Section 83, Cr.P.C. was made. These orders are not to be found in either of the two files. Even warrant of attachment has not been returned to the court after its execution and only a memo of attachment is there. Sri Jain was unable to tell as to when and by whom the orders under Sections 82 and 83, Cr.P.C. were passed. 8. Tehri Garhwal has only two criminal courts, the Sessions Judge and the C.J.M. A Munsif is also posted there without being conferred with jurisdiction in criminal matters. The report of registry, which I called for, reveals that Sri M. N. Kulshrestha, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned C. J. M. I do not propose to draw the proceedings of contempt of court. However, I must observe that the C.J.M. should have accepted the surrender of the applicant specially when he had been proclaimed as absconder. Sri A.B.L. Gaur, appearing on behalf of the learned C.J.M., has drawn my attention to the fact that the C.J.M. was bound by the order dated 30-9-1992 to consider the bail application of the applicant in the first hours of a working day. This is however, not correct. In the order dated 30-9-1992 this court had directed that in case the learned Magistrate chose to reject the bail application of the applicant, he would do so in the first working hours of the day to enable the applicant to apply for bail in the court of sessions. On 29-10-1992 when the applicant had appeared in the first hours of the day there was no reason not to take him into custody. Sri Gaur has further argued that on some subsequent dates the applicant himself either came late or sought adjournment. The conduct of the applicant was quite natural because his anxiety was not to fall in the hands of the police. By adjourning the surrender of the applicant to 4-11-1992 the C.J.M. had made the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the crime to enable him to surrender to custody. Section 82(2) lays down rigorous conditions of the manner in which the proclamation has to be published. The publication includes, inter alia, the affixation of the proclamation at some conspicuous place of the house and homestead of the accused, as also at the notice-board of the court house. 14. The words, has absconded or is concealing himself so that such warrant cannot be executed in Section 82 of the Code are significant. Every person who is not immediately available cannot be characterised as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions of Section 82 are mandatory and are to be construed strictly. Section 82 requires that the court must, in the first instance, issue a warrant and it must put down its reasons for believing that the accused is absconding or concealing himself. My view expressed above is supported by a Division Bench case of Dip Narain Singh v. State of Bihar, 1981 Cri LJ 1672 (Patna). Thus, in every case where the warrant is not executed, resort cannot be had to Section 82 and it may be neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and the provisions in this respect are mandatory. (See Gurappe Gugal v. State of Mysore. The words 'at any time' in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Magistrate has to record his reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence. If Section 83(1) is interpreted to mean that it confers arbitrary powers on the Magistrates to order an attachment at their sweet will or in a whimsical manner Section 83(1) of the Code might have to be struck down as violative of Articles 14 and 21 of the Constitution. In the case of Maneka Gandhi v. Union of India, it was held that equality and arbitrariness are sworn enemies. In para 56 the Supreme Court observed :-- The principle of reasonableness, which legally as well as philosphically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence. 17. The proviso to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (The underlining is mine). 19. In the case of Berium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 the Supreme Court held that even a subjective satisfaction has in existing circumstances to reach such satisfaction. Shelat J. observed (at p. 325):-- If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. Hidayat Ullah J. (as he then was) went on to observe (at p. 309, para 27) :-- Since the existence of circumstances is condition fundamental to the making of an opinion, the existence of circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusions of certain definiteness. 20. In the case of Rohtas Industries Ltd. v. S.D. Agarwal, the Supreme Court has held that when an opinion has to be formed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bouring district. The submission made by the learned counsel for the applicant has substance. The applicant has not been given a fair deal when he wanted to surrender and he may have a reasonable apprehension in his mind that he will not get even justice in the surcharged atmosphere at present. I am further of the view that in the circumstances prevailing at Tehri Garhwal the speedy disposal of the bail application of the applicant is far dream. The case may be transferred for the speedy disposal of the bail application of the applicant to some neighbouring district. 25. In the result, this application is disposed of with the following directions:- (a) The applicant may surrender before the Sessions Judge, Dehradun within one month from today. If he surrenders and makes an application for bail the Sessions Judge shall dispose of his bail application in the manner as directed by the order of this Court dated 30-9-92. Needless to observe that the learned Sessions Judge shall be free to decide the bail application on merits. The Registrar shall, within 3 days, send the two records of this case through a Special messenger to the Sessions Judge, Dehradun in a sealed cover who afte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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