J.D. Kapoor, J.
1. Short question of law arising in this petition is whether the Magistrate has the powers to procure the attendance of the accused through warrants of arrest while taking cognizance of a summons case without giving a finding that the accused has either absconded or will not obey the summons. Answer is emphatic `no’ as it lies in the provisions of Section 204 Cr.P.C relating to “issue of process” itself.
2. Facts giving rise to aforesaid proposition of law are, put briefly, as under:
3. Complaint for the offence punishable under Section 22A of the Minimum Wages Act was filed against the petitioner in 2000. The offence carries a sentence of fine to the maximum limit of Rs.500/- and therefore is a `summons’ case. Vide order dated 23.10.2000 the learned Metropolitan Magistrate, while taking cognizance summoned the accused through bailable warrants for a sum of Rs.5000/- . Said order reads as under:-
Present: Sh. O.P. Arya, complainant
Accused by summoned with Bailable warrant in the sum
of Rs.5,000/- with one surety through SHO concerned.
dusty for 3.8.01.”
4. Section 204 Cr.P.C provides the procedure for issuing processes for procuring attendance of the accused while taking cognizance of the offence. Procedure laid down is as under:-
204″Issue of process:- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.”
5. Bare perusal shows that the law enjoins upon the Magistrate to issue summons for attendance of the accused if it is a summons case and if it is a warrant case he may issue warrant and if he thinks fit he may issue summons for causing appearance of the accused. As is apparent even in warrants case appearance of the accused can be ordinarily procured through summons though the Magistrate has the discretion to issue a warrant. Word `shall’ projects the mandatory nature of the provision so far as process in a summons case whereas work `may’ in relation to a warrant case shows the discretionary power of the Magistrate.
6. Section 87 of Cr.P.C vests the discretion in the court which is empowered to issue the summons for appearance of any person to issue warrant of his arrest but in that case as the provision would show certain conditions are necessary to exist. Section 87 provides as under:
“87. Issue of warrant in lieu of, or in addition to, summons- A court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-
(a)if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b)If at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
7. Bare perusal shows that to cause appearance through warrant of arrest it is mandatory for the court to record reasons in writing and it is only in following two eventualities that such a steps is resorted to. Firstly, the court should see reasons to believe that the said person has absconded or will not obey the summons; Secondly if such a person has failed to appear despite due service of summons upon him.
8. Thus there is no scope of doubt as to the nature of process to be issued in a summons case. It was mandatory for the Metropolitan Magistrate to issue at the first instance process of summons for the attendance of the petitioner. In case he had failed to appear despite due service of summons upon him, the Magistrate could have resorted to coercive process of warrants of arrest and that too after recording the reasons in writing.
9. As is apparent the initial order of summoning dated 23.10.2000 was against the mandatory provisions of Section 204 Cr.P.C. Subsequent orders passed by Metropolitan Magistrate particularly orders dated 3.8.2001 and 19.9.2002 do not spell out the reasons for issuing non-bailable warrants of arrest and process under Section 82/83 of Cr.P.C. Orders read as under:-
"3.8.2001 Present: Inspector for MW. Accused Absent. He is deliberately avoiding service of B/W. Issue NBW against him through SHO/HC Sarita Vihar for 18.10.01. 19.9.2002 Present: Sh. Om Prakash and Pankaj Sharma for MW Accused absent. He is deliberately avoiding arrest. Issue Process U/S 82 & 83 Cr.P.C against accused through Sarita Vihar for 29.10.02."
10. As regards order dated 3.8.2001, reasons for issuing non-bailable warrants as prescribed by Section 87 Cr.P.C have not been recorded in writing. Court has to satisfy itself before issuing warrant of arrest that the accused has either absconded or has failed to appear despite of service of summons upon him. Thus this order also suffers from inherent infirmity.
11. As regards order dated 19.9.2002 , the learned Magistrate straightaway issued dual process of sections 82 and 83 of Cr.P.C and that too without following the mandatory procedure envisaged in these provisions.
12. This is apparent from the bare reading of these provisions which are as under:-
“Section 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 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.”
” Section 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 in 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; or
(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). ”
13. It is manifest from the provisions of Section 82 Cr.P.C that before publishing the written proclamation requiring the accused to appear under the provisions of Section 82 Cr.P.C the court has to 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. The procedure for publication of the proclamation is laid down in sub-section (2) of Section 82. Sub-section (1) provides that the Court shall wait for thirty days after publication of the proclamation for the appearance of the accused and it is only after processes under Section 82 Cr.P.C are exhausted that the next step under Section 83 is to be taken by the Court.
14. Section 83 enjoins upon the court to record the reasons in writing for ordering the attachment of any property belonging to the person who has been proclaimed as an offender under Section 82 Cr.P.C. Even the order of attachment of property has two pre-requisites. Firstly 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 or secondly that he is about to remove whole or part of the property from the local jurisdiction of the court. Thus the orders passed by learned MM in this regard suffer from gross illegality and inherent infirmity.
15. Every criminal court is a creature of Criminal Procedure Code. It is neither above it nor can it rise about it. It has to remain within its precincts and cannot afford to traverse beyond it. Any order passed beyond the provisions and in violation of mandatory provisions empowering the court to issue warrant of arrest or proclamation under Section 82 or attachment of property under Section 83 have to be reasoned one and in accord with essential requirements. Curtailment of any person’s liberty with the sledge of hammer does not comport with judicial discretion vested by the provisions of Criminal Procedure Code in the criminal court. More absolute power the court enjoys more circumspective and sparing use of it is expected. Absolute power does not admit element of arbitrariness.
16. I find that each and every order passed by the learned MM right from 23.10.2000 till 9.7.2003 was against the rudimentary and basic principles of law relating to issue of warrant of arrest and processes under Sections 82 and 83 of Cr.P.C.
17. As a result, the petition is allowed. Impugned orders are set aside and the proceedings taken against the petitioner so far are quashed. In view of the failing health and old age of the petitioner, he is allowed to appear and reply to the notice of offence before the learned MM through his counsel on 1st September, 2003, the date already fixed as it is a summons case and the maximum sentence is fine up to Rs.500/- as the process of appearance is issued in the form of Schedule I under Section 61 of Cr.P.C which empowers the accused not only to appear through pleader but plead guilty also. Proforma of summons is as under:-
“To…………………..(name of accused) of
WHEREAS your attendance is necessary to answer to a charge…………..(state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate) of…………..on the…………………..day of
………………………Herein fail not.
Dated, this……….day of …………….20…
(Seal of Court) (Signature)"