When section 82 of Cr.P.C. stipulates that the Court must have reason to believe that after the warrant was issued against the person, he has absconded or concealed himself somewhere so that warrant could not be executed for which he may direct for publishing a written proclamation, such belief must be based on concrete materials and in absence of such materials, the Court should not mechanically pass an order under section 82 of Cr.P.C. directing publishing a written proclamation. Law is well settled that when the statute provides something to be done in a particular manner, it should be done in that manner or not at all.
In case of Dr. Santanu Kr. Parida -Vrs.- State of Orissa reported in 1999 (II) Orissa Law Reviews 191, it is held as follows:-
“4. On perusal of the records, it appears that the summons issued by the trial Court from time to time had not been served and, in fact, the service returns were not back. Similarly, bailable warrant as well as non-bailable warrant issued against the petitioner had also remained unexecuted. From the lower Court records, it is not established that the petitioner had, in fact, avoided the process of Court after receiving the summons, or had evaded the execution of the warrants in any manner. In the absence of any categorical material, it was not open to the Magistrate to jump to a conclusion that the petitioner had deliberately avoided the process of Court and as such, issuance of N.B.W. or issuance of process under Sections 82 and 83, Cr.P.C. was uncalled for. Before taking any steps under Section 82 Cr.P.C., the Court has to be satisfied that the person against whom warrant had been issued had absconded or was concealing himself. In the present case, the Sub-Divisional Judicial Magistrate has nowhere come to the conclusion that the petitioner had, in fact, absconded or concealed. Since there was no justification for taking steps under Section 82, there was no scope for invoking the power under Section 83, Cr.P.C. and as such the action of the Sub-Divisional Judicial Magistrate in taking steps under Sections 82 and 83, Cr.P.C. cannot be sustained.”
In case of Antaryami Barik -Vrs.- State of Orissa reported in 2016 (I) ILR – Cuttack 959, it is held as follows:-
“3. Now, in this case it is apparent from the record that the learned S.D.J.M., Udala has observed that the I.O. has prayed to issue processes under Sections 82 and 83 of the Cr.P.C. against the petitioners. He further observed that both are residents of village Garadihi, P.S. Berhampur, District Balasore and as the accused persons are yet to be arrested though N.B.W. has been issued on 30.4.2005, in spite of several raids conducted by the I.O. and the accused persons are untraced. The learned S.D.J.M. was satisfied from the case diary that the O.I.C. has taken sincere steps to arrest the accused persons. Accordingly the learned S.D.J.M., Udala allowed the prayer. There is no finding by the learned S.D.J.M. that the persons have absconded or concealing themselves so that warrant cannot be executed. So the order issuing proclamation under sub-section (1) of Section 82 of the Cr.P.C. is not complied with.
4. Moreover, in order to issue an order of attachment of property of a person absconding under Section 83 of the Cr.P.C., the Court issuing a proclamation under Section 82 of the Cr.P.C., 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 the Court is satisfied 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. Only on satisfaction of such condition, the Court may order the attachment simultaneously with the issue of the proclamation. The order passed by the learned S.D.J.M., Udala is cryptic one. No reasons have been given in the order. It is also not apparent from the record that an affidavit has not been filed to the effect that the proclamation is about to dispose or remove the whole or any part of his property belong to him, the order cannot be sustained. It is well settled law of land that reason is the heartbeat of orders passed by the Court. Reasons always show the basis on which the learned Court came to a particular conclusion and absence of reasons in an order itself is violative of principles of natural justice.”
The words ‘has absconded or is concealing himself so that such warrant cannot be executed’ as appearing in section 82 of Cr.P.C. are significant inasmuch as every person who is not immediately available at a place cannot be characterized as an absconder and 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 under section 82 of Cr.P.C. are mandatory in nature and are to be construed strictly. The expression ‘reason to believe’ as occurs in section 82 of Cr.P.C. suggests that the Magistrate must be subjectively satisfied that the person has absconded or has concealed himself on the basis of the materials before him. The processes of proclamation and attachment should not be issued whenever a warrant fails of its effect. If it is necessary, the officer sent to serve the warrant should be examined as to the measures adopted by him to serve it and if on his evidence, or in any other manner the Court is satisfied that the accused is evading justice, then and then only can the processes of proclamation and attachment be issued. The Magistrate must record the grounds which satisfied him that the accused was absconding and concealing him to evade justice.
In view of the above discussion, I am satisfied that the impugned order dated 05.08.2016 passed by the learned S.D.J.M., Puri is not sustainable in the eye of law and therefore, the same stands quashed.
For taking recourse to section 83 of Cr.P.C. regarding attachment of property of the absconding person, there must be material before the Court that after issuance of the proclamation, there was necessity for passing an order of attachment of the property either movable or immovable or both belonging to the proclaimed person and the reasons for passing an attachment order should be recorded in writing. Though the Court has power to issue an order of attachment of property at the time of issuance of proclamation but such order can be passed only when the Court is satisfied that the person is about to dispose of the whole or part of his property or to remove the whole or any part of his property from the local jurisdiction of the Court.
Law is well settled that an order of attachment of property should not be passed in haste and without proper application of mind. The procedure laid down under section 83 of Cr.P.C. has to be followed strictly. The words ‘at any time’ as appears under section 83(1) of Cr.P.C. only mean that if after the issuance of proclamation, either of the two conditions mentioned in clauses (a) and (b) of the proviso to section 83(1) of Cr.P.C. comes into existence, an order of attachment can be made even without waiting for thirty days to expire as envisaged under section 82(1) of Cr.P.C. On fulfillment of either of the two conditions as mentioned in clauses (a) and (b) of the proviso to section 83(1) of Cr.P.C., order of attachment of property can be simultaneously passed with the issue of the proclamation. Even in such a case, the Magistrate has to record his reasons for arriving at judicial satisfaction that such condition as mentioned in the proviso to have come into existence. [Orissa High Court in Ipsita Pratihari vs State Of Orissa 23/03/2017]
