Section 82 Cr.P.C. proclamation requires recorded satisfaction of absconding and specified time and place for appearance.

In brief

The question

1. Whether the order issuing a proclamation under Section 82 of the Cr.P.C. is legally sustainable if the Magistrate fails to record a specific satisfaction that the accused is absconding or concealing himself to evade arrest.

The court held

The High Court held that the order dated August 14, 2024, was unsustainable due to non-compliance with the mandatory provisions of Section 82 Cr.P.C.

It also directed

The Court quashed and set aside the impugned order specifically in relation to the petitioner

However, the Court granted liberty to the learned CJM, Godda, to pass a fresh order in accordance with the law

The Criminal Miscellaneous Petition was allowed

01Facts

The petitioner, Md. Sabat, was an accused in Basantrai P.S. Case No. 40 of 2023 for offences under Sections 364, 506, 120B, and 34 of the Indian Penal Code

¶ 2

On August 14, 2024, the learned Chief Judicial Magistrate (CJM), Godda, issued a proclamation against the petitioner under Section 82 of the Code of Criminal Procedure (Cr.P.C.)

¶ 2

The petitioner moved the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, seeking to quash the said order on the grounds that it was issued without following due process of law

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02Issues

i.1. Whether the order issuing a proclamation under Section 82 of the Cr.P.C. is legally sustainable if the Magistrate fails to record a specific satisfaction that the accused is absconding or concealing himself to evade arrest.

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ii.2. Whether the failure to specify a fixed time and place for the appearance of the accused in the proclamation order constitutes a jurisdictional error.

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03Law Applied

The court applied the mandatory procedural requirements of Section 82 of the Cr.P.C. (corresponding to the relevant provisions of BNSS).

¶ 3, 5

It is a settled principle that the issuance of a proclamation is a "sine qua non" for which the court must record its satisfaction that the accused is absconding or concealing himself to evade arrest

¶ 3, 5

Furthermore, the order must strictly adhere to the statutory requirement of fixing a specific time and place for the appearance of the accused

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The court also exercised its inherent powers under Section 528 of the BNSS, 2023, to prevent the abuse of the process of law

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Provisions in the judgment · 5 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528

Indian Penal Code, 1860 Section 364 Section 506 Section 34

Code of Criminal Procedure, 1973 Section 82

04Reasoning

The High Court scrutinized the impugned order dated August 14, 2024, passed by the CJM, Godda.

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The court observed that while issuing the proclamation under Section 82 of the Cr.P.C., the CJM failed to record any subjective satisfaction regarding the petitioner's intent to abscond or conceal himself

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The High Court emphasized that such recording is a mandatory legal prerequisite.

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Additionally, the CJM's order was found deficient as it did not specify the mandatory time and place for the petitioner’s appearance

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The court reasoned that since these "mandatory requirements of law" were ignored, the order lacked legal foundation.

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Consequently, allowing the order to stand would result in a grave illegality and constitute an abuse of the process of law

¶ 5