GAUTAMBHAI DINESHBHAI CHAUHAN vs STATE OF GUJARAT

R/SCR.A/12609/2026 JUDGMENT DATED: 19/10/2026
(GJHC240644762026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12609 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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Approved for Reporting Yes No
✔
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GAUTAMBHAI DINESHBHAI CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR. AARSH BHADRESHBHAI CHOKSHI(15622) for the Applicant(s) No. 1
MR. ANILKUMAR H CHAUHAN(17450) for the Applicant(s) No. 1
MR. MEET THAKKAR, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER

Date : 19/10/2026

JUDGMENT
1. Rule returnable forthwith. Learned APP Mr. Meet
Thakkar waives service of notice of Rule on behalf of
respondent-State.
2. This application is filed seeking the following reliefs: —
“A. Your Lordship may be pleased to allow and admit this
petition;
B. Your Lordship may be pleased to quash and set aside the order
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R/SCR.A/12609/2026 JUDGMENT DATED: 19/10/2026
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dated 06.08.2026 passed by Learned 2nd Additional Sessions
Judge, Additional District Court, Rajula, Amreli in Sessions Case
number 7 of 2026 whereby Learned Court had issued proclamation
order against Petitioner-Accused;
C. Pending hearing, disposal of the present Petition, to stay the
implementation, execution of the impugned order 06.08.2026
passed by Learned 2nd Additional Sessions Judge, Additional
District Court, Rajula, Amreli in Sessions Case number 7 of 2026;
D. This Honourable Court may be pleased to grant such other and
further relief/s as may be deemed fit and proper in the interest of
justice.”
3. Heard learned advocate Mr. Aarsh Choksi for the
petitioner and learned APP Mr. Meet Thakkar for the
respondent–State.
4. Learned advocate for the petitioner submitted that the
impugned order has been passed by the learned Trial
Court issuing a proclamation under Section 82 of the
Code of Criminal Procedure, 1973, on 06.08.2026. It is
submitted that there is no report placed on record by the
Investigating Officer indicating that the petitioner is
absconding or concealing himself so as to render
execution of the warrant impossible. It is further
submitted that the learned Trial Court has issued the
proclamation in a routine manner and without assigning
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any cogent or sufficient reasons, despite the serious
consequences flowing from such an order. Relying upon
the judgment cited before this Court, learned advocate
for the petitioner submitted that, before issuing a
proclamation, the learned Trial Court was required to
satisfy itself that the statutory conditions for issuance of
such proclamation were duly fulfilled, including the
existence of a warrant and the Court's reason to believe
that the petitioner had absconded or was concealing
himself so that the warrant could not be executed. In
view of the aforesaid submissions, learned advocate for
the petitioner has prayed that the present application be
allowed.
5. Learned APP Mr. Thakkar, appearing for the respondent–
State, has submitted upon instructions that, except for
the entries made in the case diary, the Investigating
Officer has been unable to demonstrate that, prior to
passing of the order dated 06.08.2026, any effective
efforts were undertaken to secure the presence of the
petitioner or to execute the warrant issued against him.
6. Having considered the submissions advanced by learned
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advocate for the petitioner and learned APP appearing
for the respondent–State, and having perused the
decision relied upon by learned advocate for the
petitioner, this Court finds that the object and purpose of
Section 82 of the Code of Criminal Procedure is to
secure the presence of a person who is required to
appear before the Court and against whom a warrant
has been issued. The power to issue a proclamation
under Section 82 of the Code of Criminal Procedure is
attracted only when the Court has reason to believe that
such person has absconded or is concealing himself so
that the warrant issued against him cannot be executed.
This Court finds it appropriate to refer to the relevant
observations of the Apex Court in the case of Daljit
Singh v. State of Haryana reported in 2025 AIJEL-SC
74497 . The relevant portion of the said judgment, is
reproduced hereinbelow:—
“6.1 In Kartarey v. State of U.P.8 the meaning of the word
‘absconder’ was recorded as follows:-
“43. …To be an “absconder” in the eye of law, it is not
necessary that a person should have run away from his home, it
is sufficient if he hides himself to evade the process of law, even
if the hiding place be his own home…” Further, in Jayendra
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Vishnu Thakur v. State of Maharashtra9, it was observed:-
“40. The term “absconding” has been defined in several
dictionaries. We may refer to some of them:
Black's Law Dictionary — To depart secretly or suddenly,
especially to avoid arrest, prosecution or service of process. P.
Ramanatha Aiyar — primary meaning of word is “to hide”.
Oxford English Dictionary — “To bide or sow away”. Words and
Phrases — “clandestine manner/intent to avoid legal process”.
(1976) 1 SCC 172 (2009) 7 SCC 104
6.2 The object and purpose of Section 82, Cr.P.C. was taken note
of in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel10. S.B
Sinha J., writing for the Court held as under:-
“32. The provisions contained in Section 82 of the Code of
Criminal Procedure were put on the statute book for certain
purpose. It was enacted to secure the presence of the accused.
Once the said purpose is achieved, the attachment shall be
withdrawn. Even the property which was attached, should be
restored. The provisions of the Code of Criminal Procedure do not
warrant sale of the property despite the fact that the absconding
accused had surrendered and obtained bail. Once he surrenders
before the court and the standing warrants are cancelled, he is no
longer an absconder. The purpose of attaching the property comes
to an end. It is to be released subject to the provisions of the
Code. Securing the attendance of an absconding accused, is a
matter between the State and the accused. The complainant
should not ordinarily derive any benefit therefrom. If the property
is to be sold, it vests with the State subject to any order passed
under Section 85 of the Code. It cannot be a subject-matter of
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execution of a decree, far less for executing the decree of a third
party, who had no right, title or interest thereon.” (Emphasis
Supplied) 6.3 The evidentiary value of a person absconding has
been discussed in Raghubir Singh v. State of U.P.,11 in the
following terms:
“11. …the act of absconding, even if proved, is normally
considered a somewhat weak link in the chain of circumstances
utilised for establishing the guilt of an accused person. If the
evidence of eye- witnesses is held trustworthy then the act of
absconding even if established would serve only to further fortify
the satisfaction of the court with respect to the guilt of the
accused concerned, for, even an innocent person may well try to
keep out of the way if he learns of his false implication in a
serious crime reported to the police. ...” (Emphasis Supplied) 6.4
In Rahman v. State of U.P.,12 it was held that absconding by
itself is not conclusive either of guilt or of a guilty conscience.
For, a person may (2008) 4 SCC 649 (1972) 3 SCC 79 AIR 1972
SC 110 abscond on account of fear of being involved in the
offence or for any other allied reason. The observations in Matru
v. State of U.P.,13 are instructive.
“19. … Even an innocent man may feel panicky and try to evade
arrest when wrongly suspected of a grave crime such is the
instinct of self-preservation. The act of absconding is no doubt
relevant piece of evidence to be considered along with other
evidence but its value would always depend on the circumstances
of each case. Normally the courts are disinclined to attach much
importance to the act of absconding, treating it as a very small
item in the evidence for sustaining conviction. It can scarcely be
held as a determining link in completing the chain of
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circumstantial evidence which must admit of no other reasonable
hypothesis than that of the guilt of the accused. …” (Emphasis
Supplied) 6.5 The notice under Section 41 Cr.P.C., must have
necessarily been issued prior to the notice and declaration under
Section 82, and attachment under its subsequent sections. In State
v. Dawood Ibrahim Kaskar14, it was held: -
“22. … Now, the power of issuing a proclamation under Section
82 (quoted earlier) can be exercised by a Court only in respect of
a person “against whom a warrant has been issued by it”. In
other words, unless the Court issues a warrant the provisions of
Section 82, and the other sections that follow in that part, cannot
be invoked in a situation where in spite of its best efforts the
police cannot arrest a person under Section 41.” 6.6 Numerous
judgments of this Court which concern this Section, have been
about bail. Illustratively, Sureshchandra Ramanlal v. State of
Gujarat15, State of M.P. v. Pradeep Sharma16, Prem Shankar
Prasad v.
State of Bihar17 and Srikant Upadhyay v. State of Bihar18.
However, we (1971) 2 SCC 75 (2000) 10 SCC 438 (2008) 7 SCC
591 (2014) 2 SCC 171 (2022) 14 SCC 516 2024 SCC OnLine SC
282 are not concerned with bail in the present matter, so it is
not necessary to go into them.
7. Having considered the law as laid down in the judgments
above in respect of Section 82, at this stage we must also consider
Section 174A IPC which lays down penal consequences for
intentionally evading the process under Section 82 Cr.P.C. It reads
as under :-
“174A. Non-appearance in response to a proclamation under
section 82 of Act 2 of 1974.— Whoever fails to appear at the
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specified place and the specified time as required by a
proclamation published under sub-section (1) of section 82 of the
Code of Criminal Procedure, 1973 shall be punished with
imprisonment for a term which may extend to three years or with
fine or with both, and where a declaration has been made under
sub section (4) of that section pronouncing him as a proclaimed
offender, he shall be punished with imprisonment for a term
which may extend to seven years and shall also be liable to fine.”
Now, let us consider the second question arising in this appeal, in
reference to this provision is, whether the subsistence of the
proclamation u/s 82 Cr.PC is necessary for the authorities to
proceed against the accused person u/s 174A IPC.
In other words, whether Section 174A IPC can stand independent
of the proclamation u/s 82 Cr.P.C. or not?
7.1 The purpose of Section 82 Cr.P.C., as can be understood from
a bare reading of the statutory text is to ensure that a person who
is called to appear before a Court, does so. This Section appears
as part of Chapter VI which is titled ‘Process to Compel
Appearance’. Section 83 to 90 provide for the additional method
of attachment of property to the end of securing appearance.
Necessarily then some or the other proceeding has to be ongoing
for which the presence of such person is necessary. The words of
the Section dictate that it can be only issued in respect of a
person against whom a warrant has been issued. Neither a
warrant nor proclamation subsequent can be conjured up out of
thin air.
7.2 Section 174A IPC, inserted by the 2005 Amendment to the
Indian Penal Code inserts a substantive offence, prescribing
punishment of three years or fine or both when such proclamation
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is issued under Section 82(1) Cr.P.C. and, seven years and fine if
the said proclamation is under Sub- section (4) thereof. The object
and purpose of this Section is to ensure penal consequences for
defiance of a Court order requiring a person’s presence.”
6.1. In view of the aforesaid decision, in the opinion of this
Court, before issuing a proclamation under Section 82 of
the Cr.P.C., the Court must be satisfied, on the basis of
the material available on record, that the person
concerned, despite having knowledge of the
proceedings, is deliberately avoiding the process of law.
The Court is required to consider the relevant
circumstances, including whether the accused was
aware of the non-bailable warrant issued against him
and whether, despite the efforts made by the concerned
Officer to execute the warrant by adopting fair and
lawful means, the accused was evading arrest.
6.2. In the facts of the present case, except for the entries
made in the case diary, there is no material on record to
show that the Investigating Officer had taken any
effective steps to secure the presence of the petitioner
or that the petitioner was absconding or concealing
himself so as to avoid execution of the warrant. In the
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absence of such material, this Court is unable to find
from the record the basis on which the learned Trial
Court arrived at the satisfaction required for issuing the
proclamation under Section 82 of the Code of Criminal
Procedure.
7. At this stage, this Court deems it appropriate to refer to
the guidelines issued by this Court vide judgment dated
05.10.2026, which are reproduced hereinbelow:—
“(1) The police officer shall submit a report before the Court
stating that the person against whom the warrant has been issued
has absconded or is concealing himself. Such concealment must be
deliberate and with the intention of avoiding arrest. The mere fact
that the police could not find the accused is not sufficient.
(2) Mere non-availability of the accused at the address is not
sufficient unless it is established that the accused is deliberately
concealing himself to avoid arrest.
(3) The police officer shall file an affidavit/status report disclosing
the address, telephone number and email address, if available, of
the accused against whom the warrant has been issued, along
with the reasons for the inability to secure the presence of the
accused before the Court.
(4) Where the warrant has been affixed to a conspicuous part of
the house in which the person ordinarily resides, the police officer
shall annex to the affidavit a photograph showing the affixation of
the warrant. The photograph must be taken in such a manner as
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to clearly establish that the warrant has been affixed to the very
house in which the person ordinarily resides.
(5) The Investigating Officer or the Police Inspector shall record in
the case diary the names of at least two respectable persons
residing in the locality of the accused/suspect, along with their
contact details, including their addresses and telephone numbers,
who can verify that the address of the accused/suspect mentioned
in the application seeking issuance of a warrant of arrest is
correct and complete. Photocopies of the identity proofs of such
persons shall also be obtained by the police officer concerned.”
8. Considering the aforesaid facts and circumstances, this
Court is of the view that the present application
deserves to be allowed. Accordingly, the impugned order
dated 06.08.2026 passed by Learned 2nd Additional
Sessions Judge, Additional District Court, Rajula, Amreli
in Sessions Case number 7 of 2026 is hereby quashed
and set aside.
8.1. The petitioner is directed to remain present before
the learned Trial Court on the date fixed by the said
Court and shall furnish an undertaking that he shall
remain present on each and every date of hearing, as
and when directed by the learned Trial Court.
8.2. The learned Trial Court shall release the petitioner on
furnishing a bond in the sum of Rs. 25,000/-, subject to
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such terms and conditions as may be imposed by the
learned Trial Court.
9. Rule is made absolute.
10. Direct Service is permitted.
(M. K. THAKKER,J)
NIVYA A. NAIR
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