TaxTMI 
TaxTMI 
2021 (10) TMI 330
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....read with Sections 141 and 142 N.I. Act and Section 420 IPC being Complaint Case No. 8416/2017 against the petitioner and others. On noting that the petitioner was stated to be an Authorized Signatory of the cheque in question and a Director in the accused Company, namely ABC Aviation & Training Services (P) Ltd., cognizance was taken by the learned Metropolitan Magistrate against the accused under Section 138 N.I. Act read with Section 141 N.I. Act and summons were issued. 3. Learned counsel for the petitioner has assailed the order declaring the petitioner as an 'Absconder' as well as consequent registration of the aforementioned FIRs by raising the following contentions: (i) the proceedings conducted by the concerned Court while declaring the petitioner an 'Absconder' show complete non-application of mind; (ii) the proceedings under Section 82 Cr.P.C. were conducted while showing the petitioner to be a resident of Kerala, whereas he was residing in Karnataka; the correct address of the petitioner (i.e., of Karnataka) was placed on record by the complainant himself; (iii) the procedure prescribed under Section 82 Cr.P.C. was given complete gobye; and (iv) two FIRs on the....
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....ng such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.] 1[(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).]" 6. A plain reading of sub-section (1) of Section 82 Cr.P.C. would show that publication of proclamation must be preceded by issuance of a warrant and the satisfaction of the Court having 'reason to believe' that the person against whom warrant has been issued is absconding or concealing himself so that such warrant cannot be executed. On satisfaction of the twin conditions, the Court may cause a written proclamation to be published requiring such a person to appear at a specified place and a specified time in not less than 30 days from the date of publishing of such proclamation. 7. The expression 'reason to believe' means sufficient cause to believe. As also enunciated in Section 26 IPC, a person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. Thus, 'reason to believe' that a person against whom warrant has been issued is....
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....he facts discernible from the material placed on record are that the complainant/respondent No. 2 had preferred a complaint under Section 138 N.I. Act read with Sections 141 and 142 N.I. Act impleading the petitioner as one of the Directors of the accused company, and in pursuance, the petitioner was summoned vide order dated 05.08.2017. 13. The summons addressed to the petitioner at his address in Kerala i.e., Rajab, T.C. 27/648(1), Vanchiyoor, P.O. Trivandrum-695035, Kerala, were received back with the report 'addressee left'. On 03.11.2017, while noting that tracking report of summons for the petitioner mentioned 'unclaimed', bailable warrants were issued against the petitioner which were made returnable on 11.01.2018. In the meantime, the matter was put up for appearance of another accused, namely Sanaulla Zulfiqar Ahmed Khan. On this date, i.e. 15.11.2017, the matter was referred to the Mediation Centre at request of parties and the case was directed to be listed before the Court on 04.12.2017. 14. The matter was taken up on 04.12.2017, on which date an application was filed by the complainant thereby bringing on record the fresh address of the petitioner in Karnataka. The T....
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....herein the Supreme Court cautioned the Courts to not issue bailable and non-bailable warrants without proper scrutiny. It was enunciated as under: "Personal liberty and the interest of the State 50. Civilised countries have recognised that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice-liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law. 51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised ....
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.... company, the question of its absconding does not arise. The process of proclamation and attachment are exceptional remedies and should not be issued as a matter of course whenever the warrant is returned unexecuted. The non-conformance of Section 82(1) and (2) would be violation of the procedure established by law within the meaning of Article 21 of the Constitution of India. It appears that while issuing process under Sections 82/83 Cr. P.C., the Court did not even notice the report on the warrant. The impugned order issuing proclamation against the petitioner, on the face of it is not sustainable." (emphasis added) 20. It would be expedient to refer also to the decision rendered by another Bench of this Court in G. Sagar Suri v. State and Anr. reported as 2003 SCC OnLine Del 759, where the importance of recording of reasons by the Magistrate before issuing written proclamation has been noted, besides highlighting that the processes illustrated in Section 82 Cr.P.C. may first be exhausted before directing attachment of property of the person absconding:- "13. It is manifest form the provisions of Section 82 Cr. P.C. that before publishing the written proclamation requiring th....