# Pankaj Singh @ Ajay Singh v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 511
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-25
- **Case number:** Application U/S 482 No.175 of 2022
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-singh-ajay-singh-v-state-of-u-p-ors-48132
- **Pages:** 5

## Headnote

512 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Code of Criminal Procedure, 1973 -
Section 82 - Requirement of filing affidavit
by I.O. for issuance of proclamation u/S
82 Cr.P.C. not mandatory- Upon Perusal of
the provisions of Section 82 Cr.P.C. the court is
of considered opinion that submission of an
affidavit by the I.O. at the time of making of an
application for issuance of process u/S 82
Cr.P.C. cannot be a mandatory provision in as
much as there is no such provision u/S 82
Cr.P.C. requiring the I.O. to submit an affidavit
along with the application. Such a provision may
be required when orders are being passed
simultaneously u/Ss 82 and 83 Cr.P.C. The law
as laid down in Kunwar Mahendra Pratap Singh
v St.of U.P. & ors., 482 No. 2261 of 2021, is not
in accordance with provisions of Section 82
Cr.P.C. and hence distinguished.

B. The court has a bounden duty to indicate the
factors for which it has reason to believe that
the person concerned has absconded or is not
cooperating for the purposes of service of
warrant. Such a procedure is compulsorily
required to be undertaken by the court
concerned in view of the provisions of Section
82 Cr.P.C. St.Through CBI v Dawood Ibrahim
Kakkar(sic Kaskar) & ors. (2000)10 SCC 438
followed.

Application allowed. Matter remanded. (E12)

List of Cases cited:-

## Text

2 All. Pankaj Singh @ Ajay Singh Vs. State of U.P. & Ors.
511
circular to prescribe a period of limitation
for filing an application for compounding.
The Court accordingly held as follows:

"14. The Court finds nothing in
Section 279 of the Act or the Explanation
thereunder
to
permit
the
CBDT
to
prescribe such an onerous and irrational
procedure which runs contrary to the very
object of Section 279 of the Act. The CBDT
cannot arrogate to itself, on the strength of
Section 279 of the Act or the Explanation
thereunder, the power to insist on a 'predeposit' of sorts of the compounding fee
even without considering the application
for compounding. Indeed Mr Kaushik was
unable to deny the possibility, even if
theoretical,
of
the
application
for
compounding being rejected despite the
compounding fee being deposited in
advance. If that is the understanding of
para 11(v) of the above Circular by the
Department,
then
certainly
it
is
undoubtedly ultra vires Section 279 of the
Act. The Court, accordingly, clarifies that
the Department cannot on the strength of
para 11(v) of the Circular dated 23rd
December 2014 of the CBDT reject an
application for compounding either on the
ground of limitation or on the ground that
such application was not accompanied by
the
compounding
fee
or
that
the
compounding fee was not paid prior to the
application being considered on merits."

13. However, in the present case a
specific limitation has been provided by para
7(ii)
of
the
compounding
guidelines
contained in the circular dated 14.6.2019 in
purported exercise of power under the
second Explanation to Section 279(2) of the
Act, 1961. The second Explanation merely
enables the Board to issue instructions or
directions to other Income Tax authorities
for the proper composition of offences under
that Section. That is to say the instructions
or directions may prescribe the methodology
and manner of composition of offences to
clarify any obscurity or vagueness in the
main provisions to make it consistent with
the dominant object of bringing closure to
such
cases
which
may
be
pending
interminably in our Court system. Such
instructions or directions that are prescribed
by the Explanation cannot take away a
statutory right with which an assessee has
been clothed, or set at naught the working of
the provision of compounding of offences.

14. Considering
the
facts
and
circumstances of the case and the provisions
of sub-section (2) of Section 279 of the Act,
1961, the writ petition is allowed to the
extent that compounding application of the
petitioner cannot be rejected by the Income
Tax Authority concerned on the ground of
delay in filing the application. Accordingly,
we also direct that compounding application
of the petitioner shall be considered by the
Income
Tax
Authority
concerned
in
accordance with law.
----------
(2022)02ILR A511
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.01.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Application U/S 482 No.175 of 2022

Pankaj Singh @ Ajay Singh ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Dr. Pooja Singh

Counsel for the Opposite Parties:
G.A.
512 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Code of Criminal Procedure, 1973 -
Section 82 - Requirement of filing affidavit
by I.O. for issuance of proclamation u/S
82 Cr.P.C. not mandatory- Upon Perusal of
the provisions of Section 82 Cr.P.C. the court is
of considered opinion that submission of an
affidavit by the I.O. at the time of making of an
application for issuance of process u/S 82
Cr.P.C. cannot be a mandatory provision in as
much as there is no such provision u/S 82
Cr.P.C. requiring the I.O. to submit an affidavit
along with the application. Such a provision may
be required when orders are being passed
simultaneously u/Ss 82 and 83 Cr.P.C. The law
as laid down in Kunwar Mahendra Pratap Singh
v St.of U.P. & ors., 482 No. 2261 of 2021, is not
in accordance with provisions of Section 82
Cr.P.C. and hence distinguished.

B. The court has a bounden duty to indicate the
factors for which it has reason to believe that
the person concerned has absconded or is not
cooperating for the purposes of service of
warrant. Such a procedure is compulsorily
required to be undertaken by the court
concerned in view of the provisions of Section
82 Cr.P.C. St.Through CBI v Dawood Ibrahim
Kakkar(sic Kaskar) & ors. (2000)10 SCC 438
followed.

Application allowed. Matter remanded. (E12)

List of Cases cited:-
1. St.Through CBI Vs Dawood Ibrahim Kaskar &
ors. (2000)10 SCC 438

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Siddharth Luthra
learned Senior Counsel assisted by Ms.
Shakshi Kakkar and Mr. Shakti Singh
learned counsel for petitioner and learned
A.G.A. appearing on behalf of opposite
parties 1 to 3. In view of order being
passed, notices to opposite party No.4 stand
dispensed with.

2. Petition under Section 482 Cr.P.C.
has been filed challenging the order dated
31st August, 2021 and 15th September,
2021 passed passed by Chief Judicial
Magistrate,
Pratapgarh
initiating
proceedings under Section 82(3) Cr.P.C.

3. Learned counsel for petitioner
submits that petitioner was the first
informant in the incident that has taken
place with regard to case crime No. 407 of
2020 under Sections 147, 148, 149, 307
and 302 IPC in Police Station Kotwali
Nagar, District Pratapgarh. It is submitted
that petitioner was not initially named in
the first information report and his name
has been included only during investigation
after one year after lodging of the first
information report. It is submitted that an
application for issuance of non bailable
warrant against the petitioner was filed by
the investigating officer in which non
bailable warrant was issued. It is however
submitted that the petitioner was not made
aware of the proceedings prior to the
issuance of the said warrant since his name
was not included in the first information
report. It is submitted that the entire
proceedings as well as the impugned order
have been passed behind the back of
petitioner.

4. It has been further submitted that a
co-accused Anurag Dubey had filed writ
petition
No.22124
(M/S)
of
2021
challenging
the
order
dated
15th
September, 2021 under Section 82 Cr.P.C.
and the said writ petition was allowed by
means of judgment and order dated 28th
October, 2021 quashing the order passed
under Section 82 Cr.P.C. It is submitted
that petitioner's case is relative to the said
case.
2 All. Pankaj Singh @ Ajay Singh Vs. State of U.P. & Ors.
513

5. Learned Senior Counsel has further
more submitted that the impugned order is
not in consonance with provision of
Section 82 Cr.P.C. inasmuch as there is no
subjective satisfaction recorded by the
court
with
regard
to
petitioner
not
cooperating in the investigation or evading
arrest. Reliance has been placed upon
judgment of Hon'ble Supreme Court in the
case of State through C.B.I. versus
Dawood Ibrahim Kakkar reported in
(2000)10 SCC 438 as well as judgment of
this Court in the case of Kunwar
Mahendra Pratap Singh versus State of
U.P. and others, petition under Section
482 No. 2261 of 2021.

6. It has been further submitted that
prior to issuance of the order under section
82 Cr.P.C., the investigating officer was
required to furnish an affidavit as per
judgment of this court in the case of
Kunwar Mahendra Pratap Singh (supra).
That having not been done, the impugned
order even otherwise is unsustainable
particularly
since
affidavit
by
the
investigating
officer
was
submitted
subsequent to the impugned order dated
31st August, 2021 and therefore there was
no material before the court concerned at
the time of passing of the impugned order
for
recording
subjective
satisfaction
regarding evasion of petitioner or his non
cooperation during investigation.

7. Learned A.G.A. appearing on
behalf of opposite parties opposed has
opposed the petition with the submission
that the order impugned is perfectly cogent
and reasonable and in accordance with
provisions of Section 82 Cr.P.,C., which
therefore does not require any interference.
It is submitted that the court concerned in
the impugned order has clearly recorded
the
fact
that
the
petitioner
is
not
cooperating in the investigation and is
evading arrest due to which order under
Section 82 Cr.P.C. was required to be
passed.

8. Having considered submissions
advanced by learned counsel for parties and
upon perusal of material on record, it
appears that initially an application was
filed by the investigating officer for
issuance of non bailable warrant against the
petitioner whereafter non bailable warrants
were issued and subsequently the order
impugned has been passed under section 82
Cr.P.C. It is not denied that the petitioner
was initially not named in the first
information report.

9. From a perusal of the impugned
order, it appears that the court concerned
has passed orders under section 82 Cr.P.
after examining the case diary and upon the
plea raised by the investigating officer
regarding non cooperation of petitioner in
the
investigations
being
carried
out.
However it is also evident that a number of
accused have been named in the first
information report but only a general
allegation has been recorded in the order
impugned with regard to non cooperation
in the investigation proceedings. The court
concerned has not bothered to indicate on
which dates the petitioner was made aware
with regard to issuance of any letter by the
investigating
officer
for
seeking
cooperation in the investigation or even the
date on which the non bailable warrant was
served upon the petitioner. There is only a
bland assertion recorded in the impugned
order that the petitioner is evading arrest.

10. Section 82 Cr.P.C. pertains to
proclamation for person absconding and for
provisions of attachment. It clearly states
that the court has to record a reason to
514 INDIAN LAW REPORTS ALLAHABAD SERIES
believe if any person against whom a
warrant has been issued by it has
absconded or is concealing himself so that
such warrant can not be executed then such
court may publish a written proclamation
requiring him to appear at specified place
and at a specified time not less than 30 days
from
the
date
of
publishing
such
proclamation.

11. Upon perusal of provision of
Section 82 Cr.P.C., it is evident that prior
to issuance of any order under the said
provision, the court has to record a reason
that the person against whom warrant has
been issued has specifically absconded or
has concealed himself so that such a
warrant can not be executed. As such from
reading of the aforesaid provision, it is a
mandatory duty cast upon the court
concerned to record as to how and when
the person concerned has absconded or has
concealed himself so that the warrant can
not be executed. For such purpose, it is the
duty of the court concerned to indicate that
the person was aware of the proceedings
against
him
particularly
also
the
investigation being conducted against him.
Unless
and
until
such
a
subjective
satisfaction is recorded by the court
concerned, provisions of Section 82 Cr.P.C.
can not be invoked by the court concerned.

12. In the case of Dawood Ibrahim
(supra),
Hon'ble
Supreme
Court
has
referred to provisions of section 73 which
may be read in the context of Section 82
Cr.P.C. in the following manner:-

"24. Now that we have found that
Section 73 of the Code is of general
application and that in course of the
investigation a Court can issue a warrant in
exercise of power thereunder to apprehend,
inter alia, a person who is accused of a nonbailable offence and is evading arrest, we
need answer the related question as to
whether such issuance of warrant can be for
his production before the police in aid of
investigation. It cannot be gainsaid that a
Magistrate plays, not infrequently, a role
during investigation, in that, on the prayer of
the Investigating Agency he holds a test
identification parade, records the confession
of an accused or the statement of a witness,
or takes or witnesses the taking of specimen
handwritings etc. However, in performing
such or similar functions the Magistrate does
not exercise judicial discretion like while
dealing with an accused of a non-bailable
offence who is produced before him pursuant
to a warrant of arrest issued under Section
73. On such production, the Court may either
release him on bail under Section 439 or
authorise his detention in custody (either
police or judicial) under Section 167 of the
Code. Whether the Magistrate, on being
moved by the Investigating Agency, will
entertain its prayer for police custody will be
at his sole discretion which has to be
judicially exercised in accordance with
Section 167(3) of the Code. Since warrant is
and can be issued for appearance before the
Court only and not before the police and
since authorization for detention in police
custody is neither to be given as a matter of
course nor on the mere asking of the police,
but only after exercise of judicial discretion
based on materials placed before him, Mr
Desai was not absolutely right in his
submission that warrant of arrest under
Section 73 of the Code could be issued by the
courts solely for the production of the
accused before the police in aid of
investigation."

13. The aforesaid judgment clearly
indicates that for exercise of powers by the
magistrate concerned, orders are not to be
passed as a matter of course on a mere
2 All. Rama Shankar Mishra Vs. State of U.P. & Ors.
515
asking of police but only after exercise of
judicial discretion based on material placed
before him particularly since provisions of
Section 82 Cr.P.C. are stringent in nature
and may entail loss of liberty and property.

14. In the present case, merely a bland
advertment to the case diary would not be
enough , the court has a bounden duty to
indicate the factors for which it has reason to
believe that the person concerned has
absconded or is not cooperating for the
purposes of service of warrant. Such a
procedure is compulsorily required to be
undertaken by the court concerned in view of
the provisions of Section 82 Cr.P.C.

15. Learned counsel for petitioner has
also referred to judgment of this Court in the
case of Kunwar Mahendra Pratap Singh
(supra) with the submission that prior to
issuance of any order under Section 82
Cr.P.C., it is compulsory that the magistrate
should consider the application of the
investigating
officer
which
should
be
supported by affidavit stating the reasons why
non bailable warrant and proclamation under
Section 82 Cr.P.C. is required since the issue
relates to personal liberty of a person
guaranteed
under
Article
21
of
the
Constitution of India.

16. Upon perusal of the aforesaid
judgment, juxtaposed with the provisions of
Section 82 Cr.P.C., it is the considered opinion
of this Court that submission of an affidavit by
the investigating officer at the time of making
of application for issuance of process under
Section 82 Cr.P.C. can not be a mandatory
provision. There is no such provision under
Section 82 Cr.P.C. requiring the investigating
officer to submit an affidavit along with the
application. Such a provision may be required
when orders are being passed simultaneously
under Sections 82 and 83 Cr.P.C., but can not
be considered to be mandatory at the time of
consideration of an application filed only
under section 82 Cr.P.C. It is trite that casus
omissus can not be supplied by the court
particularly when there is no confusion with
regard to the provisions of statute. As such and
also upon reading of the judgment of this
Court in the case of Kunwar Mahendra Pratap
Singh (supra), it is evident that the requirement
of affidavit to be filed by the investigating
officer while seeking an application for
issuance of proceedings under Section 82
Cr.P.C. is merely directory and not mandatory
and may be insisted upon the court concerned
in specific cases for reasons to be recorded.

17. Considering the aforesaid factors, it
is evident that the impugned orders not being
in consonance with the provisions of Section
82 Cr.P.C. are therefore unsustainable.
Consequently the impugned orders dated 31st
August, 2021 and 15th September, 2021
passed passed by Chief Judicial Magistrate,
Pratapgarh with regard to case crime No. 407
of 2020 under Sections 147, 148, 149, 307 and
302 IPC in Police Station Kotwali Nagar,
District Pratapgarh quashed and resultantly the
petition is a allowed. Liberty however is
granted to the court concerned for passing
fresh orders in case it is necessary to do so but
only in accordance with provisions of Section
82 Cr.P.C. as indicated herein above.
----------
(2022)02ILR A515
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.02.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No.479 of 2021

Rama Shankar Mishra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties