1. Heard Sri Manish Tiwary, learned Senior counsel assisted by and Sri Pranav Tiwary, learned counsel for applicant and Sri Pritam Singh Sandhu, learned counsel for opposite party no.2 appears in person.
2. The applicant has been implicated in this case along with 15 other co-accused persons for committing the offences alleged in the FIR under different sections of Indian Penal Code.
3. Learned Senior counsel for the applicant submits that number of co-accused persons have been granted anticipatory bails, stay of arrest and regular bail. The offences alleged are of civil nature and engaging the attention of civil court hence the applicant is also entitled to be enlarged on bail on anticipatory bail.
4. The informant/opposite party no. 2, appearing in person, has vehemently opposed the anticipatory bail application. He has submitted that the applicant has not come with clean hands to this court. Proclamation under Section 82 Cr.P.C. was issued against the applicant on 12.01.2024 directing him to appear before the court on 26.02.2024 but he failed. Thereafter, proceedings under Section 83 Cr.P.C. was initiated against him vide order dated 17.01.2024. He approached this court praying for quashing of the aforesaid impugned orders passed by C.J.M., Ghaziabad vide Criminal Misc. Application U/S 438 Cr.P.C. No. 2605 of 2024. It was submitted before this court that the applicant may be permitted to file objection under Section 84(2) Cr.P.C. before the court concerned against the order passed U/S 82/83 Cr.P.C. within two weeks. This court by the order dated 11.03.2024 granted liberty to the applicant to file his objection under Section 84(2) Cr.P.C. before the court concerned within two weeks from the date of order. The opposite party no. 2 has submitted that as per Section 84(2) Cr.P.C., applicant was not entitled to file any objection since it is clear from Section 84(1) Cr.P.C. that the same can only be filed by a person, other than the proclaimed person, on the ground that the objector has interest in such property and it is not liable to attachment under Section 83 Cr.P.C. He has submitted that the applicant was a proclaimed offender and he had no right to file objection under Section 84(1)(2) Cr.P.C. His objection was rightly rejected by the C.J.M. Being proclaimed offender he is not entitled to grant of anticipatory bail by this court.
5. He has further pointed out that the Sessions Judge, Ghaziabad has refused to grant anticipatory bail to applicant because he was found to be a proclaimed absconder.
6. After hearing the rival contentions, this court deems it appropriate to refer to sections 82 to 84 Cr.P.C. which are quoted hereinbelow :-
S. 82 Cr.P.C
Proclamation for person absconding
Description
1. If Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.
2. The proclamation shall be published as follows- (i) a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village; c) a copy thereof shall be affixed to some conspicuous part of the Court house; (ii) the Court may also, if it 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.
4. Where a proclamation published under Sub-Section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860) and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
5. The provisions of Sub-Sections (2) and (3) shall apply to a declaration made by the Court under Sub-Section (4) as they apply to the proclamation published under Sub-Section (1).
S. 83 Cr.P.C
Attachment of property of person absconding
Description
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 property, movable or immovable, or both, belonging to the proclaimed person;
Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued;
1. is about to dispose of the whole or any part of his property, or
2. is about to remove the whole or any part of his property from the local jurisdiction of the Court It may order the attachment simultaneously with the issue of the proclamation.
2. Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.
3. If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
1. by seizure; or
2. by the appointment of a receiver; or
3. by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
4. by all or any two of such methods, as the Court thinks fit.
4. If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases-
1. by taking possession; or
2. by the appointment of a receiver; or
3. 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
4. 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).
S. 84 Cr.P.C
Claims and objections to attachment
Description
1. If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part;
Provided that any claim preferred or objection made within the period allowed by this Sub-Section may, in the event of the death of the claimant or objector, be continued by his legal representative.
2. Claims or objections under Sub-Section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under Sub-Section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made.
3. Every such claim or objection shall be inquired into by the Court in which it is preferred or made;
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him.
4. Any person whose claim or objection has been disallowed in whole or in part by an order under Sub-Section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.
7. It is clear from Section 84(1) Cr.P.C. that a proclaimed offender had no right to file objection under Section 84(2) Cr.P.C. The applicant is clearly a proclaimed offender and an absconder. In the cases of Srikant Upadhyay and Ors vs. State of Bihar and Another in Special Leave Petition (Crl.) No. 7940 of 2023; Lavesh vs. State (NCT of Delhi) MANU/SC/0701/2012 : (2012) 118 AIC 118 and Prem Shankar Prasad vs. The State of Bihar and Another, MANU/SC/0951/2021 : 2021:INSC:658 : (2021) 0 AIR (SC) 5125, it has been held that anticipatory bail cannot be granted to a proclaimed offender. No law to the contrary has been placed before this court by the counsel for the applicant.
8. In view of the above, this anticipatory bail application is rejected and the interim anticipatory bail granted to the applicant also stands cancelled.
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