Petitions under Section 482 of the Code of Criminal Procedure for the relief as stated therein.
For petitioner in Crl.O.P. No.18411/09 : Mr.T.P.Senthilkumar For petitioner in Crl.O.P. No.16414/09 : Mr.L.Pandian For Petitioner in Crl.O.P. No.13992/09 : Ms.C.Uma For Petitioners in Crl.O.Ps.20051 & 20052/09: Mr.S.R.Sundaram For respondent/police : Mr.N.R.Elango, Additional Public Prosecutor.
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COMMON JUDGMENT The petitioner in Crl.O.P. No.18411 of 2009 is the son of one Kaliyamoorthy, who was murdered on 07.11.1990 and the accused-trio faced trial before the Sessions Court, East Thanjavur (Nagapattinam) in S.C. No.110 of 1991 and ultimately, A1 was found guilty under
Section 302 IPC and sentenced to undergo life imprisonment while A2 and A3 were convicted under
Section 326 IPC and sentenced to undergo rigorous imprisonment for 5 and 3 years respectively. On Appeal before this Court in C.A. No.735 of 1992, though the sentence imposed by the trial court was suspended by ordering the miscellaneous petitions, by Judgment dated 27.03.2001, the appeal was dismissed, whereupon, A-3 surrendered and served the sentence while A-1 and A-2 did not surrender and they remain to be at large in spite of the Non-Bailable Warrants issued; therefore, the petitioner seeks to direct the respondents to secure A-1 and A-2 for serving the remaining period of sentence.
2. In Crl.O.P. Nos.13992, 16414, 20051 and 20052 of 2009, the petitioners/complainants in C.C. No.381 of 2006 on the file of JM-V, Salem, C.C. No.36 of 2007 on the file of JM, Tiruttani and C.C. Nos.652 and 130 of 2006 on the file of JM-I, Tiruppur, seek to execute the Non-Bailable Warrants issued against the accused concerned.
3. All the above Criminal Original Petitions pertain to prayer for execution of NBWs of course in variant proceedings pending before different criminal courts, hence, they are disposed of by this Common Judgment.
4. Learned counsel for the petitioner in Crl.O.P.18411 of 2008 submits that A-1 and A-2, who are brothers, are attending public functions along with political leaders and though they are apparently visible in the society, because of their high political influence, the respondent police never turned towards them to perform the legal obligation as a law enforcing agency. Several representations sent repeatedly with the final one on 06.08.2009 did not yield any outcome; hence, the petitioner has been constrained to prefer the present petition for a direction to secure them so that they are sent to Prison for undergoing the remaining period of sentence.
4-A. To begin with, learned Additional Public Prosecutor, by assuring this Court that such unwanted instances would not recur in future, submits that the present officer of the 4th respondent-police station has taken charge only on 13.08.2009 and, on coming to know that the accused persons in the murder case are still absconding, he approached Judicial Magistrate-I, Mayiladuthurai, who issued a Non-bailable Warrant dated 09.09.2009, whereupon, A2 was arrested on 28.09.2009 while A1 surrendered before the Sessions Court, Nagapattinam, on 05.10.2009. He states that in between 2001 and 2009, several Officers were sequentially in charge of the 4th respondent-police station and that the Officer, who is now serving in the said Station, soon after issuance of notice by this Court, received NBW from the court of the Magistrate and duly executed the same. He further states that because of transfer of officers and hectic pressure and workload, sometimes pendency of NBWs escape their notice and as a consequence thereof, enquiry, trial and further proceeding of criminal cases are unfortunately getting delayed. He submits that necessary instructions would be given to the first respondent, Director General of Police, Tamil Nadu, for suitably directing the Station House Officers relating to execution of pending NBWs without any delay so that the absconding accused could be secured and made available in future for the enquiry/trial/further proceedings before court.
Focussing on the prevalent situation in the Criminal Justice Administration, learned Additional Public Prosecutor states that in some cases where accused is absconding and final report is ready to be filed, the committal courts decline to accept the final report and insists for production of the accused and there are instances where, for the reason that one of the accused is absconding, some Magistrates decline to proceed with committal proceedings and there is no proper adherence to the procedure fixed in the code; added to that, because of the difficulty in securing the accused, the present day order is split up of cases between the available and absconding accused, with the net result, there is uncontrollable pendency of cases at the doorstep itself. There are also cases where, after obtaining bail orders, the accused abscond and even leave the country on foreign assignments and in such cases, hardly courts take steps against sureties.
5. In the other petitions relating to NBWs issued against the accused in cheque bounce cases under Section 138 of the Negotiable Instruments Act, learned counsels submitted that though NBWs have been issued against the accused followed by reminders, the respondent police concerned did not accomplish the task of executing the warrants as a result of which, proceedings are pending for years together. Learned counsels expressed the grievance that in some matters where ultimately, the accused could not be produced in spite of issuance of NBWs, the Magistrates closed the cases, thereby, the purpose in approaching the courts rendered meaningless. By adverting to the odd position that 1000s of cases are pending without progress for want of appearance of the accused, it is submitted that, not only in cheque bounce cases but also in murder cases, though the accused are very much available in the locality, because of the collusion and hidden links between the accused and the police officers, the warrants issued by courts remain to be unconcerned for execution. Because of the unholy alliance between the accused and some of the police officials and taking advantage of minute lacuna in the procedural law, the warrants issued by courts are flouted conveniently and seen as mere paper-decrees. Large amount of judicial time and resources are wasted at the risk of piling up of cases at all levels as there is no temperance in the enforcement agency performing the task which they are legally bound to do with a sense of responsibility and alacrity; in such circumstances, if this unprecedented perilous trend is not curbed effectively, there would be havoc in the judicial system at the bottom line.
6. I have given my thoughtful consideration to the arguments advanced having regard to the materials available on record.
7. It is very unfortunate that A-1 and A-2 in S.C. No.110 of 1991, who were convicted and sentenced by the trial court to undergo life imprisonment and RI for 5 years respectively, in spite of dismissal of their appeal by the High Court and such verdict not having been challenged before the Apex Court by preferring SLP, enjoyed extraordinary liberty nearly for 8 years by freely moving in the society and participating in public functions due to the lapses lurching in the system. Similarly, it is painful to note that in many cheque bounce cases, where non-bailable warrants are issued only based on necessity and the facts and circumstances involved, there is abrupt failure in execution of warrants and conveniently, the accused are leaving the country with the State Document/Passport to escape the legal proceedings. At this appalling situation, a flaw-free, prompt and perfect procedure, mindful judicial reaction and compliant enforcement are essentially required to tackle with the crisis. In that perspective, it is but proper to precisely delve into the Code of Criminal Procedure which enumerates the procedure involved in issuance and execution of summons and warrants.
8.
Sections 61 to
69 of the Code at Section-A pertaining to 'Summons' in Chapter VI with the caption "processes to compel appearance" deal with form of summons and different modes of service while Section-B of the Chapter with the title 'Warrant of arrest' and containing
Sections 70 to
81 prescribes form of warrant and execution of warrants and the procedure involved; in particular,
Section 71 with the heading 'Power to direct security to be taken' provides thus:-
" (1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the court the officer to whom the warrant is directed shall take such security and shall release such person from custody.
(2) The endorsement shall state-
(a) The number of sureties;
(b) The amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound;
(c) The time at which he is to attend before the court.
(3) Whenever security is taken under this section the officer to whom the warrant is directed shall forward the bond to the court.
Section 72 prescribes the authority through whom the warrant would be executed,
Section 73 confers power on the Magistrate to issue warrant of arrest,
Section 74 relates to warrants directed to police officers and
Section 75 ordains for notification of substance of warrant.
Section 76 specifies that the person arrested must be brought before court without unnecessary delay. By virtue of
Section 77, a warrant may be executed at any place in India. Sections-78 and 79 deal with warrant forwarded for execution outside jurisdiction and warrant directed to police officers for execution outside jurisdiction and
Section 80 prescribes the procedure as to how an arrested person is to be dealt with when he is produced before the Magistrate.
9. Having regard to the procedure underlined in the Code as well as the law laid down by the Apex Court relating to the area of service of summons and execution of warrants, it must be pointed out that Magistrates/Criminal Courts vested with judicial discretion, issue non-bailable warrants not as routine in all matters but only in deserving cases where the accused is charged with the commission of an offence of a heinous crime and it is feared that he may tamper with or destroy the evidence or he is likely to evade the process of law. In general practice, at the first instance, courts direct service of summons along with the copy of the complaint and if the accused is non-compliant and seems to be avoiding the summon, the court, in the second instance would issue bailable-warrant and only thereafter, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant is resorted to. Therefore, issuance of non-bailable warrants is the ultimate course adopted by courts to secure the presence of the accused so as to conduct the proceedings for deciding the cases and if such mode turns to be a failure, undoubtedly, the justice delivery system would be at stake. That is why, to take care of such exigency, the Code provides further modes through Sections-82 and 83 at Section-C of Chapter VI titled 'Proclamation and Attachment'. Section-82 is relevant to be quoted below, " 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 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."
A careful reading of
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82 </act>makes it clear that before publishing the "written proclamation" requiring the accused to appear under the said provision, Courts must record the reasons either after taking evidence or without evidence that a person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed. Sub-section (1) provides that the Court shall wait for thirty days after publication of the proclamation for the appearance of the accused and the procedure for publication of the proclamation is prescribed in sub-section (2) of
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82.</act> It is only after processes involved under
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82 </act>Cr.P.C are exhausted that the next step under
Section 83 is taken. Section-83 is rather prompt in proceeding towards next step, for, the language employed is 'at any time after the issue of the proclamation', the Court may order attachment of any property movable or immovable or both belonging to the proclaimed person. The ultimate purpose of this Section is to secure the presence of the accused and once the task is accomplished, the attachment will be withdrawn and the property attached is restored. Further, even the order of attachment of property has two pre-requisites viz., (i) the court has to satisfy itself either by affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to dispose of whole or any part of the property and (ii) he is about to remove whole or part of the property from the local jurisdiction of the court.
10. From a meticulous scrutiny of the relevant provisions in the Code, it could be seen that the crucial aspect that is missing is the time factor regarding execution of warrants. Though
Section 76 highlights the importance of production of the person arrested 'without unnecessary delay', in respect of execution of warrants, there is no specific mentioning about the period within which the task should be carried out. In the forms of Warrants also, such aspect is missing, with the result, the Judicial Officers are mechanically, without application of mind, simply adopting the format, go on issuing warrants and the executing authorities in many cases sleep over such warrants to the adverse impact on the functioning of the judicial system since there is no specified time prescribed for execution. Even in cases preferred before various levels of courts including High Court, for directing execution of warrants, it is seen only individual orders are being passed and in those orders, unfortunately, time factor is not touched and delve into. Resultantly, it is witnessed that in thousands of cases execution of warrants is not complied with and in handful of cases, litigation initiated by the complainant is closed or charge sheet filed is returned for failure in executing NBW for a long period and want of production of the accused. In such a dire and desperate situation, I am of the considered opinion that a time frame is absolutely necessary for execution of warrants so as to make the relevant provisions effective and result-oriented. For such purpose, the time factor provided in
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82 </act>viz., 30 days respite for appearance of the accused person from the date of publication of proclamation to appear before court, may be imported for the purpose of execution of warrants also so that the enforcement agency would act with a sense of responsibility and urgency. It must also be pointed out that even in
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82 </act>with the language, any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, the time factor for a police officer, who failed in spite of his diligent attempts to secure the accused, to approach the court for the purpose of invoking the procedure adumbrated in
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82 </act>is not prescribed; thus, implicitly, a police officer can, in appropriate cases, at any time seek for proclamation against an absconding accused before the court having due regard to the nature of offences and the compelling circumstances. By taking into consideration the workload on the police officers and the various tasks required to be performed by them including investigation of countless cases being lodged day by day, I am of the view that the Station House Officers must be granted sufficient and reasonable time to execute the warrant as they have to conduct search at various places to reach the person against whom warrant is issued and in that perspective, the learned Magistrates may fix a time limit of 30 days for the enforcing agency to come forward either with execution or a status report. Therefore, henceforth, every warrant issued by the criminal courts in the subordinate judiciary must reflect time-frame for execution as 30 days from the date of the order and on the very next date of expiry of the time, the police officer concerned must file a status report as to the steps taken by him in his endeavour to carry out the task accompanied with a requisition for proclamation under
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82 </act>Cr.P.C. It is made clear that if it is brought to the notice of the court that the police officer concerned had colluded with the accused and because of such ugly association, the accused was left to roam free and silhouette in the society, direction may be issued to the District Superintendent of Police to proceed against such officer. Since
<act id=4LGxPokB_szha0nWDtBn section=82>Section 82 </act>pertains exclusively to cases where warrants have been issued, on assessing the status report, the learned Magistrates, if necessary, may resort to the procedure outlined therein and such course seems to be not yielding any result, may proceed under
Section 83 Cr.P.C.
11. In the light of the foregoing discussion, while directing the Registry, High Court, Madras, to ensure that as soon as judgement is passed in criminal appeals, revisions cases etc., observing that the accused/appellant at large on account of suspension of sentence be secured and committed to prison to undergo sentence, message is forthwith conveyed to the lower court enabling it to take steps to secure the accused without any delay and report compliance;
the criminal courts in the subordinate judiciary are hereby instructed to scrupulously adhere to the following directives,
(a) Soon after receipt of copy of judgment/order/direction to secure the accused, NBW shall be issued forthwith so as to commit him/them to custody;
(b) While issuing warrants, the Magistrates shall mention in the Form of warrant the time factor for execution as "within 30 days";
(c) The Chief Judicial Magistrates/Chief Metropolitan Magistrates shall call for monthly statistics from the Magistrates and if long pendency of non-execution of NBW is noticed, after consultation with the District Judge, suitable direction be issued to the Superintendent of Police;
(d) In matters where non-execution is reported, it must be seen that, on the very next day of expiry of the respite, viz., 30 days, the officer concerned files status report exhaustively reflecting the efforts taken by him and if it is expressed that there are prospects of securing the person concerned before long, reasonable time may be granted by the Judicial Officer not exceeding 15 days by way of extension so that the warrant could be executed without resorting to further modes prescribed in the procedural law;
(e) If the officer concerned assigns valid reasons and expresses inability to secure the person against whom warrant is issued, after examining the reasons and assessing the facts and circumstances of the case and after fully being satisfied that the accused is obviously evading arrest in spite of knowing issuance of NBW, the Court shall resort to the procedure adumbrated in
Section 82 Cr.P.C. and, without any loss of time, if necessary, thereafter, further proceed under
Section 83 Cr.P.C.; and
(f) In the event of an accused, who is at large by virtue of bail orders, clandestinely fleeing the country or continuously hiding away from appearing before the court, steps shall be taken to proceed against the sureties simultaneously in the manner known to law.
11-A. For effective implementation of the job on the part of the police department, in parallel, the Director General of Police, Tamil Nadu, is directed to forthwith collect statistics of cases where non-bailable warrants are pending/could not be executed by the Station House Officers so as to examine the actuality and to issue suitable instructions to the high ranking officers involved in the administration to,
(i) devise an effective in-house mechanism by fixing targets for the Station House Officers and formulating step-by-step methods that may be adopted during the one month period, that is to say, concerted efforts for search at suspicious places, paper publication, cautioning the immigration authorities, etc. and while doing so, the officers may seek co-operation and assistance of the complainant who can hint out the place or veiled movements of the person/accused concerned;
(ii) ensure prompt execution of warrants by the Station House Officers keeping in view the adverse impact on the justice administration because of the failure in execution of warrants;
(iii) if it is discerned that the absconding accused particularly in murder cases, cheating and fraud cases involving crores of rupees, may try to escape the warrant and court proceedings by fleeing the country, admonish the SHOs to suitably caution the immigration authorities and if necessary, to affix photographs of the person concerned at the Airports, Railway Stations, Bus stands and conspicuous places of the locality; and
(iv) to see that stern and real action is taken in cases where the court makes observation or issues direction to the department finding that the officer concerned acted in collusion with the accused and submitted a false report before the court as to his/their availability .
11-A. In the result, Criminal Original Petition No.18411 of 2009 is closed since the accused are reported by the State to have been secured while other petitions are disposed of with a direction to the courts below to proceed in terms of the directions issued in this order. Registry to issue guidelines as reflected in this order to all the criminal courts in the subordinate judiciary, after obtaining necessary orders from the Hon'ble The Chief Justice, for strict adherence and also communicate the order to the police department for compliance.
06.10.2009.
Index : yes / no.
Internet : yes / no.
JI.
R.REGUPATHI, J.