# Vivekanand Dobriyal v. State of U.P

- **Citation:** (2022) 7 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-23
- **Case number:** Application U/S 482 No. 3899 of 2022
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivekanand-dobriyal-v-state-of-u-p-48896
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 82 -
Indian Penal Code, 1860- Sections 120-B,
384, 389, 405, 420,467, 468, 465, 471 &
504 - Prevention of Corruption Act, 1988Section
7/13(1)(b)-challenge
to-Nonbailable warrant-In the present case, the
process issued or even the publication
does not indicate any specified time and
place-Furthermore, none of the sections
as mentioned in Section 82(4) are the part
of the FIR of which the applicant is
allegedly
accused
of,
as
such,
the
applicant , prima facie cannot be declared
as proclaimed offender in exercise of
powers u/s 82(4) of the Cr.P.C.-Thus, on
that count also, the apprehension of the
applicant is not justified.(Para 1 to 22)
B. On a plain reading, the intent and
purpose of section 82 is to secure the
presence of the accused who does not
participate in the proceedings despite
issuance of warrants. To exercise the said
powers, the court is to form 'reasons to
believe' based upon material before him
that any person against whom a warrant
has been issued has absconded or is
concealing himself so that such warrant
cannot
be
executed.
The
second
requirement is that the court shall issue a
written
proclamation
requiring
the
accused to appear at a specified place and
at a specified time which could not be less
than 30 days from the date of publication
of such proclamation. In the absence of
the court forming the 'reasons to believe'
the power clearly cannot be exercised and
in terms of the powers so conferred, it is
also
essential
that
the
written
proclamation should specify the place and
the time for appearance which could not
be less than 30 days from the date of
application.(Para 13, 14)

The application is allowed. (E-6)
List of Cases cited:

## Text

7 All. Vivekanand Dobriyal Vs. State of U.P.
437
with law and the principle laid down by the
Hon'ble Apex Court in the case of Prabha
Tyagi
(supra),
without
giving
any
unnecessary adjournments to either of the
parties.
----------
(2022)07ILR A437
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.06.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Application U/S 482 No. 3899 of 2022

Vivekanand Dobriyal ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Arun Sinha, Sri Ram Chandra Singh, Sri
Siddhartha Sinha, Sri Umang Agarwal

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 82 -
Indian Penal Code, 1860- Sections 120-B,
384, 389, 405, 420,467, 468, 465, 471 &
504 - Prevention of Corruption Act, 1988Section
7/13(1)(b)-challenge
to-Nonbailable warrant-In the present case, the
process issued or even the publication
does not indicate any specified time and
place-Furthermore, none of the sections
as mentioned in Section 82(4) are the part
of the FIR of which the applicant is
allegedly
accused
of,
as
such,
the
applicant , prima facie cannot be declared
as proclaimed offender in exercise of
powers u/s 82(4) of the Cr.P.C.-Thus, on
that count also, the apprehension of the
applicant is not justified.(Para 1 to 22)
B. On a plain reading, the intent and
purpose of section 82 is to secure the
presence of the accused who does not
participate in the proceedings despite
issuance of warrants. To exercise the said
powers, the court is to form 'reasons to
believe' based upon material before him
that any person against whom a warrant
has been issued has absconded or is
concealing himself so that such warrant
cannot
be
executed.
The
second
requirement is that the court shall issue a
written
proclamation
requiring
the
accused to appear at a specified place and
at a specified time which could not be less
than 30 days from the date of publication
of such proclamation. In the absence of
the court forming the 'reasons to believe'
the power clearly cannot be exercised and
in terms of the powers so conferred, it is
also
essential
that
the
written
proclamation should specify the place and
the time for appearance which could not
be less than 30 days from the date of
application.(Para 13, 14)

The application is allowed. (E-6)
List of Cases cited:

1. Lavesh Vs St. (NCT of Delhi) (2012) LawSuit
SC 562: (2012) 8 SCC 730

2. St. thru CBI Vs Dawood Ibrahim Kaksar &
ors. (2000) 10 SCC 438

3. Kunwar Mahendra Pratap Singh @ Chandan
Singh, Appl. u/s 482 No. 2261 of 2021)

4. Pankaj Singh @ Ajay Singh Vs St. of U.P. &
ors., Appl. u/s 482 No. 175 of 2022

5. Kalbe Raza Abidi Vs St. of U.P.,Appl. u/s 482
No. 102 of 2022

6. Vinod Kumar Singh @ Vinod Singh Vs St. of
U.P., Appl. u/s 482 No. 5195 of 2021

7. N. Nagendra Rao & Co. Vs St. of A.P.(1994) 6
SCC 205

8. Dr. Pratap Singh & anr. Vs ED (1985) 3 SCC 72

9. Dr. Jai Shanker Vs St. of H.P. (1973) 3 SCC 83

(Delivered by Hon'ble Pankaj Bhatia, J.)
438 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Siddhartha Sinha, learned
Counsel for the applicant as well as Sri
S.N. Tilhari, learned Counsel appearing on
behalf of the State and perused the record.

2. The present application under
Section 482 of Cr.P.C. has been filed
challenging the order dated 14.06.2022
issued in exercise of powers under Section
82 of the Code of Criminal Procedure (in
short
"the
Cr.P.C.").
Although other
prayers have been made in the application,
however, the Counsel for the applicant
confines his submission to the challenge to
the order dated 14.06.2022 alone.

3. The facts in brief are that an FIR
No.82 of 2022, under Sections 120-B, 384,
389, 405, 420, 465, 471, 504 IPC read with
Section 7/13(1)(b) of the Prevention of
Corruption Act, 1988 at Police Station
Kaiserbagh,
District
Lucknow
was
registered against the applicant. It is also on
record that subsequently, Sections 467 and
468 IPC were added.

4. It is argued by the Counsel for the
applicant that on 09.05.2022, a non-bailable
warrant was issued by the court concerned at
the instance of the investigating authorities
who had alleged that the applicant is not cooperating
with
the
investigation.
Subsequently, an application was moved on
24.05.2022 stating therein that despite efforts
for arresting the accused in terms of the nonbailable warrant issued on 09.05.2022, the
applicant has concealed himself, as a result
whereof, non-bailable warrant could not be
executed, as such, it was prayed that a
proclamation under Section 82 of Cr.P.C. be
issued and published against the applicant.
An affidavit was also filed on 24.05.2022 in
support of the application, wherein the
averments similar to the one made in the said
application were made. Subsequently, on
25.05.2022, an application was moved by the
Investigating Officer stating that in pursuance
to the non-bailable warrant issued on
09.05.2022, efforts were made for arresting
the accused which has resulted in vain and as
an application had already been filed on
24.05.2022 for passing orders against the
accused under Section 82 of Cr.P.C., and
prayed that the orders be passed. It was also
recorded in the said application that during
the investigation, it was revealed that the
applicant is in the process of selling of
valuable assets and may leave the country
and as such, it was essential that process be
issued against the applicant under Section 82
of the Cr.P.C. On the said applications, an
order came to be passed on 14.06.2022
wherein after recording the contents of the
application and the submissions made by the
Public Prosecutor, the court recorded that
prima facie, there was no reason to disbelieve
the contents of the application or the affidavit
in its support and thus, proceeded to pass an
order for issuance of process under Section
82 of the Cr.P.C. The said order is under
challenge in the present proceedings.

5. The Counsel for the applicant
argues that the application filed for
issuance of process under Section 82 of the
Cr.P.C.
clearly
fell
short
of
the
requirements prescribed for issuance of
process under Section 82 of the Cr.P.C.,
inasmuch as, in the application, it was only
stated that the non-bailable warrant issued
by the court could not be executed. He thus
argues that based upon the application and
the affidavit, the court could not have
formed an opinion which is sine qua non
for exercise of powers under Section 82 of
the Cr.P.C.

6. T he Counsel for the applicant
further argues that in pursuance to the order
passed by this Court, the process issued
under Section 82 of the Cr.P.C. is also
7 All. Vivekanand Dobriyal Vs. State of U.P.
439
defective,
inasmuch
as,
neither
any
specified time nor any specified place has
been recorded in the proclamation and thus,
the
proclamation
falls
short
of
the
requirements as specified under Section
82(1) of the Cr.P.C. He lastly submits that
in
the
present
case,
in
which
the
investigating authority has approached the
court for issuance of the process under
Section 82 of the Cr.P.C. was malafide and
only with a view to deny the benefit of
anticipatory bail to the applicant in the light
of observations made in the judgment of
the Hon'ble Supreme Court in the case of
Lavesh vs State (NCT of Delhi); 2012
LawSuit (SC) 562) [Equivalent Citation
(2012) 8 SCC 730] wherein the Hon'ble
Supreme Court observed in para 10 as
under:

"(10) From these materials and
information, it is clear that the present
appellant
was
not
available
for
interrogation
and
investigation
and
declared as "absconder". Normally, when
the accused is "absconding" and declared
as a "proclaimed offender", there is no
question of granting anticipatory bail. We
reiterate that when a person against whom
a warrant had been issued and is
absconding or concealing himself in order
to avoid execution of warrant and declared
as a proclaimed offender in terms of
Section 82 of the Code is not entitled the
relief of anticipatory bail."

7. In the light of the said submission,
he argues that the proceedings under
Section 82 of the Cr.P.C. has been initiated
by the impugned order are liable to be set
aside.

8. Sri Tilhari, learned A.G.A.
appearing on behalf of the State opposes
the application and argues that only process
have been issued against the applicant as he
was not co-operating with the investigation
and despite efforts being made, the nonbailable warrant could not be executed
against him which is exactly the intent and
purpose of Section 82 of Cr.P.C. He further
argues that para 10 of the judgment in the
case of Lavesh vs State (NCT of Delhi)
(supra) is confined to the cases where a
person is declared a proclaimed offender or
absconder under Section 82(4) of the
Cr.P.C. and thus, the apprehension of the
applicant is misfounded.

9. Sri Tilhari further argues that in
terms of the mandate of Section 82 (2) of
the Cr.P.C., a publication was also made in
the newspaper. He has drawn my attention
to the publication by passing a copy of the
same newspaper which is taken on record.
Curiously enough, the said publication in
the newspaper also does not specify time
and place for appearance of the applicant.
He lastly submits that the directions be
issued to the applicant to co-operate with
the investigation.

10. In rejoinder, the Counsel for the
applicant argues that his anticipatory bail
was rejected by the court below and the
applicant has approached this Court by
filing an application which is likely to
come up tomorrow i.e. 24.05.2022 before
the appropriate Court. He also places
reliance on the judgment of the Hon'ble
Supreme Court in the case of State through
CBI vs Dawood Ibrahim Kaskar and
others; (2000) 10 SCC 438 and places
emphasis on paragraph 24 which is quoted
below:

"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
440 INDIAN LAW REPORTS ALLAHABAD SERIES
in exercise of power thereunder to
apprehend, inter alia, a person who is
accused of a non-bailable 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 nonbailable 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
authorisation 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 Court solely for the
production of the accused before the
police in aid of investigation."

11. The Counsel for the applicant has
also drawn attention to the orders passed by
this Court in the cases of Kunwar
Mahendra Pratap Singh @ Chandan Singh
(Application u/s 482 No.2261 of 2021)
decided on 18.08.2021, Pankaj Singh @
Ajay Singh vs State of Uttar Pradesh and
others (Application u/s 482 NO.175 of
2022) decided on 25.01.2022, Kalbe Raza
Abidi vs State of U.P. (Application U/S 482
No.102 of 2022) decided on 11.01.2022
and Vinod Kumar Singh @ Vinod Singh vs
State of U.P. (Application U/S 482 No.5195
of 2021) decided on 10.12.2021.

12. Considering the submissions
made at the bar, this court is to consider
whether the steps for issuance of the
process under Section 82 of the Cr.P.C.
could be resorted to in the facts of the case
and whether the process issued under
Section 82 of the Cr.P.C. is in accordance
with the scope of Section 82 (1) of the
Cr.P.C.?

13 . To appreciate the controversy as
raised at the bar, it is essential to look at
Section 82 of the Cr.P.C., which is 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 specified
place and at a specified time not less than
thirty days from the date of publishing such
proclamation.
7 All. Vivekanand Dobriyal Vs. State of U.P.
441

(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 Courthouse;

(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.

[(4)
Where
a
proclamation
published under sub-section (1) is in
respect of a person accused of an offence
punishable under section 302, 304, 364,
367, 382, 392, 393, 394, 395, 396, 397,
398, 399, 400, 402, 436, 449, 459 or 460 of
the Indian Penal Code (45 of 1860), and
such person fails to appear at the specified
place
and
time
required
by
the
proclamation, the Court may, after making
such inquiry as it thinks fit, pronounce him
a proclaimed offender and make a
declaration to that effect.

(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).]"

14. On a plain reading, the intent and
purpose of Section 82 is to secure the
presence of the accused who does not
participate in the proceedings despite
issuance of warrants. To exercise the said
powers, the court is to form 'reasons to
believe' based upon material before him
that any person against whom a warrant has
been issued has absconded or is concealing
himself so that such warrant cannot be
executed. The second requirement is that
the court shall issue a written proclamation
requiring the accused to appear at a
specified place and at a specified time
which could not be less than 30 days from
the
date
of
publication
of
such
proclamation. In the absence of the court
forming the 'reasons to believe' the power
clearly cannot be exercised and in terms of
the powers so conferred, it is also essential
that the written proclamation should
specify the place and the time for
appearance which could not be less than 30
days from the date of application.

15. The reason recorded in the
impugned order by the court below while
issuing the process under Section 82 of the
Cr.P.C. are to the effect that there is no
reason to disbelieve the version as
contained in the application and the
affidavit filed in support thereof. There is
no averment or mention of the Magistrate
having perused any martial, nor is there any
consideration to any other material relating
to the execution of the non-bailable
442 INDIAN LAW REPORTS ALLAHABAD SERIES
warrant. The reasoning recorded clearly
falls short of the requirements to pass an
order which cannot be done only after
having 'reasons to believe'. It is well
established that 'reasons to believe' as
contained in various statutes, both fiscal
and penal, have been interpreted by the
Hon'ble Supreme Court to hold that the
'reasons to believe' should be based upon
the
material
as
exists
and
should
demonstrate application of mind, as the
steps proposed to be taken are harsh and
stringent in nature and have the effect of
infringing
the
rights
of
the
citizen
guaranteed under Articles 21 and 300-A of
the Constitution of India.

16. The expression 'reasons to believe'
has come for interpretation on various
occasions before the Hon'ble Supreme
Court wherein it was categorically held in
the case of N. Nagendra Rao & Co vs
State Of A.P.; (1994) 6 SCC 205 that
expression 'reasons to believe' means
formation of an opinion which may be
subjective but it must be based on material
on record. It cannot be arbitrary, capricious
or whimsical. In the case of Dr. Partap
Singh and another vs Director Of
Enforcement; (1985) 3 SCC 72, it has been
held that 'reasons to believe' is not
synonymous with subjective satisfaction of
the Officer. The belief must be held in good
faith; it cannot be merely be a pretence. In
the case of Dr. Jai Shanker vs State of
Himachal Pradesh; (1973) 3 SCC 83, the
Hon'ble Supreme Court has held that
expression 'reasons to believe' mean a
belief which a reasonable person would
entertain on the facts before him.

17. The reasons recorded in the
impugned order clearly do not show any
application of mind, or reference to any
material
before
the
Magistrate
to
demonstrate as to how the Magistrate
formed 'reasons to believe' and thus on that
ground alone, the order is liable to be set
aside.

18. Coming to the second part of the
requirement as specified under Section
82(1), the process so issued should indicate
specific
date,
time
and
place
for
appearance, as the sole purpose of Section
82 of the Cr.P.C is to secure the presence of
the accused and without there being any
specific time and place mentioned in the
order, the same would not satisfy the
requirements which is contemplated under
Section 82 (1) of the Cr.P.C. In the present
case, the process issued or even the
publication does not indicate any specified
time and place and thus on this ground also,
the process issued under Section 82 cannot
be sustained.

19. As regards the third submission of
the Counsel for the applicant that the whole
action was done to deny the benefit of
anticipatory bail by the State, I do not find
any material on record to substantiate the
said submission. Furthermore, the State
would not benefit by getting the issuance of
proclamation under Section 82(1) as in
terms of the mandate of the Hon'ble
Supreme Court in the case of Lavesh vs
State (supra), the benefit of anticipatory
bail are not available only when the person
is declared proclaimed offender under
Section 82(4) of the Cr.P.C. or abscond and
not prior thereto.

20. It is interesting to note that in
terms of the prescription of Section 82(4)
of the Cr.P.C., in the cases where the
proclamation prescribed and published
under sub-section (1) is in respect of a
person accused of an offence punishable
under Sections 302, 304, 364, 367, 382,
7 All. Santosh Sahgal Vs. State of U.P. & Ors.
443
392, 393, 394, 395, 396, 397, 398, 399,
400, 402, 436, 449, 459 or 460 IPC, the
court can declare the person, who fails to
appear at the specified place and time
required
under
proclamation,
as
a
proclaimed offender and make declaration
to that effect.

21. In the present case, none of the
sections as mentioned in Section 82(4) are the
part of the FIR of which the applicant is
allegedly accused of, as such, the applicant,
prima facie cannot be declared as proclaimed
offender in exercise of powers under Section
82(4) of the Cr.P.C., thus on that count also, the
apprehension of the applicant is not justified.

22. In view of the reasonings recorded
above, the application is allowed and the order
dated 14.06.2022 is set aside.

23 . It is informed at the bar by the
Counsel for the applicant that the
passport of the applicant has already been
seized by the police authority, however,
in case the passport has not been seized
by the police authority, the applicant
shall surrender the passport before the
court concerned.

24. It is further clarified that investigating
authority shall be at liberty to carry out the
investigation in accordance with law in respect
of the offence in question and the applicant
shall also be at liberty to avail such remedy as
may be available to him under law.
----------
(2022)07ILR A443
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.06.2022

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.
Application U/S 482 No. 9060 of 2022

Santosh Sahgal ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Utkarsh Malviya

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973-Sections
482,
420,
467,468 & 471 - Copy Right Act, 1957Section 63-preparing fake pan masala and
using fake wrappers to be genuine branded
wrappers, there is no allegation of cheating
by personation in the First Information
Report-no case is made out against the
applicant u/s 419,272 IPC while in other
section no prayer is made regarding
quashing of entire proceedings though the
arguments were made. (Para 1 to 20)

B. A person is said to cheat by personation
if he cheats by pretending to be some
other person, or by knowingly substituting
one person for another, or representing
that he or any other person is a person
other than he or such other person really
is. (Para 14, 15)
The application is partly allowed. (E-6)

List of Cases cited:

1. M/s Pepsico India Holdings (Pvt.) Ltd & anr.
Vs St. of U.P. & ors. (2010) SCC OnLine All 1708

2. Mahesh Kumar Agarwal Vs St. of U.P. & anr.
(2013) SCC OnLine All 13094

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Learned counsel for the applicant is
present. He has filed the amendment
application with affidavit. The same be
kept on the record.