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rahul (manager)     01 September 2012

Absconding- ab bail - sc judgment

Dear Experts

   If due to business a person has to travel and an FIR is filed by wife after CAW proceedings fail, would a warrant be issued in the name of the person and his family?? If the person and family are away from their home, how would they come to know about the FIR? The possibility of FIR happening would be in Delhi. As per the below judgement, it means that if persons travel and FIR happens a possibility of warrant wouldbe there then AB would also not be possible. Kindly if someone can explain the scenario.

One more judgement by SC which will be used against husband for 498a, Maintanance, DV , etc.

New Delhi, Aug 31 (PTI) In a significant ruling, the Supreme Court today said an absconding accused, who has also been declared a proclaimed offender, cannot be accorded the benefit of anticipatory bail. "Normally, when the accused is absconding and declared a proclaimed offender, there is no question of granting anticipatory bail," said a bench of justices P Sathasivam and Ranjan Gogoi. "We reiterate that when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of the warrant and declared a proclaimed offender in terms of Section 82 of the Criminal Procedure Code, is not entitled to the relief of anticipatory bail," the bench added. The bench made the observation in its verdict dismissing the bail plea of a Delhi-based diamond merchant, Lavesh who is absconding since he was made a co-accused in the suicide case of his brother's pregnant wife. Vibha, who was married to Lavesh's younger brother on January 19, 2010, had committed suicide within two years after tying the nuptial knot. On the basis of a complaint lodged by the victim's mother that her daughter was being harassed by her in-laws, who were demanding Rs five lakh more as dowry, an FIR was lodged against the victim's husband and her in-laws including Lavesh. While, the husband and mother-in-law of the victim were arrested, Lavesh absconded and was later declared proclaimed offender in the case. As his successive anticipatory bail pleas were dismissed by the sessions court and the Delhi High Court, Lavesh had moved the apex court for anticipatory bail.



Learning

 2 Replies

Adv. Nikhil Seth (legal consultant (9867264707))     01 September 2012

Dear Rahul ,

Sc judgement states that proclaim offender cannot be granted Anticipatory bail . In the above cse lavesh was declared has procliam offender as he was absconding from 2 years.

If you or any "Somebody" is not going to appear in Court on Court Warrant than the Judge will Issue Non-Bailable Warrants against you under Section 70 of the Code of Criminal procedure.

THis Warrant under Section 70 will give powers to the Police to arrest you at any moment at any place [even by breaking doors and walls of your house or the place where you are trying to hide form the arrest].

If even after Non-Bailable Warrants you don't care to appear in Court than the Judge can declare you "Proclaimed Offender" under Section 82 and 83 of the Code of Criminal procedure.--- The meaning of being declared as proclaimed Offender is that you can be arrested by ANY citizen of India at any time -- any place. Your passport will be automatically confiscated so that you don't go out of the country. -- if at the time of being declared proclaimed offender you are doing any Government Job -- You will be expelled and if not you cannot apply for any government job at any level throughout your life-- even if you are declared proclaimed offender only for One day.

So. Don't try to play dirty games and do appear in Court of the next date of hearing which must had been informed to you by the Court through summons.

 

Section 70 of the Code of Criminal procedure--
70.Form of warrant of arrest and duration.- (1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.



Section 82 and 83 of the Code of Criminal procedure--
82.Proclamation for person absconding.- (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 public a written proclamation requiring him to appear at a specified 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 homestead 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.

83.Attachment of property of person absconding.- (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, -

(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,

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-

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; on

(d) 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-

(a) by taking possession; or

(b) by the appointment of a receiver; or

(c) 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

(d) 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).

ADV S PATHAK (lawyer)     01 September 2012

get the copy of jimni orders first from court in which proclamation has been done.

look for the loop hole in the procedure adopted for po.

date of proclamation process to start, date of proclamation.


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