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(Allowed) Alpana Mondal @ Alpana … vs State Of West Bengal on 12 October, 2018

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C.R.M. 7132 of 2018
24
sg 12.10.2018
Ct. No.34 In Re: – An application for anticipatory bail under Section 438 of the Code of Criminal
Procedure.

(Allowed) Alpana Mondal @ Alpana Biswas
Versus
State of West Bengal

Mr. Arnab Chatterjee, Adv.
Mr. Anand Keshari, Adv.
Mr. Sekhar Mukherjee, Adv.
…for the petitioner.
Mr. Sudip Ghosh, Adv.
Mrs. Sujata Das, Adv.
…for the State.

The petitioner seeks anticipatory bail in connection with Bongaon Police Station Case

No. 299 of 2018 dated 01.05.2018 under Sections 498A/302/34 of the Indian Penal Code.

The first ground taken by the State is that this petition should not be heard on merits

since a warrant of proclamation has been issued against the petitioner and the same has been

duly published.

In support of such contention, a judgment reported at (2012) 8 SCC 730 (Lavesh v.

NCT of Delhi) has been cited for the enunciation of the law, inter alia, at paragraph 12 thereof.

What fell for consideration in that case was as to how relevant the post-incident conduct of the

petitioner would be in considering the petitioner’s prayer for anticipatory bail and even as to

how the post-interim protection conduct of the petitioner would impact the matter. It will be

evident from the relevant dates indicated in the judgment that the petitioner had been absconding

for long and was declared a proclaimed offender. Thus, the Supreme Court found the conduct of

the accused to be unworthy of being granted anticipatory bail.

In the present case, the complaint was lodged on May 1, 2018. On or about August 18,

2018, a prayer was made for the issuance of a warrant of arrest and the returnable date therefor

was fixed on August 23, 2018. However, the matter was taken up on August 27, 2018 when a

prayer was made for the issuance of a warrant of proclamation against the petitioner. The

necessary order was passed on August 27, 2018. On August 30, 2018, the investigating officer

visited the relevant village under Bongaon Police Station and found the petitioner herein not

available in the village. The warrant of proclamation was read out to the local witnesses and

their signatures obtained thereon. A copy of the warrant was affixed to a conspicuous part of the

house of the petitioner.

Section 82 of the Code provides for a proclamation to be published. For the conclusive

evidence that the proclamation was published, Section 82(3) mandates that a statement in

writing by the Court issuing the proclamation has to be made. In respect of certain specified

offences, Section 82(4) of the Code requires a person against whom a proclamation has been

issued to be pronounced as a proclaimed offender and a declaration to be made to such effect.
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Even though it appears from the investigating officer’s report that the proclamation

may have been published by reading the order aloud at a public place and by affixing a copy

thereof to a conspicuous part of the petitioner’s residence, there is no statement issued by the

trial court regarding the publication of such proclamation. Further, since there is no statutory bar

for entertaining a petition under Section 438 of the Code upon a proclamation being issued or

published, it is the essence of the Supreme Court dictum carved out from the judgment in

Lavesh that has to be followed. The mere issuance of a warrant of arrest followed by the

mechanical issuance of a proclamation without recording any satisfaction that the concerned

person had dodged the service of the warrant of arrest, may not amount to the kind of conduct

referred to in Lavesh to disentitle an accused from approaching a Court under Section 438 of the

Code.

In this case, the issuance of the proclamation was close on the heels of the issuance of

the warrant of arrest without any satisfaction recorded by the trial court as to the necessity for

the proclamation to be issued. A proclamation ought only to be issued against a person who is

found to be absconding or concealing himself so that a warrant of arrest cannot be executed. It

can scarcely be accepted that a warrant of arrest issued on a Monday remains unserved till

Wednesday and the proclamation would be issued on Thursday without the investigating officer

demonstrating that a battery of persons attempting to execute the warrant had failed in their

collective endeavour. The mechanical issuance of a proclamation on the mere prayer of the

investigating agency may not be the be-all or end-all of a matter for the dictum in Lavesh to be

attracted and debar the petitioner from exercising a basic right as under Section 438 of the Code.

In the context of how things panned out in this case, the conduct of the petitioner is

not such as would prompt this Court to not entertain the petition under Section 438 of the Code

on merits. The essence of the judgment in Lavesh does not prohibit this petition being taken up

on merits.

The petitioner is the sister of the husband of the victim who claims not to have been

involved in the incident which led to the death of the victim.

The State produces the case diary and there is a statement of the victim prior to her

death that the fire may have been accidental in nature.

Considering the material and the extent of this petitioner’s involvement in the incident

that led to the death of the victim, there is no need for her to be taken into custody.

Accordingly, in the event of arrest, the petitioners are directed to be released on bail

upon furnishing a bond of Rs.10,000/- (Rupees Ten Thousand Only) with two sureties of

Rs.5,000/- (Rupees Five Thousand Only) each, one of whom must be local, to the satisfaction of

the Arresting Officer, subject to the conditions laid down under Section 438(2) of the Code of

Criminal Procedure, 1973. In addition, the petitioner will also report to the Investigating Officer

at such time and place as may be specified by the concerned police officer.
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The petition for anticipatory bail is allowed on the conditions indicated above.

A certified copy of this order be immediately made available to the petitioners, subject

to compliance with all requisite formalities.

(Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J.)

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