1 2025:CGHC:36264-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2335 of 2025 Dilip Kumar Veerwani S/o Shri Ghansyam Das Veerwani Aged About 55 Years R/o Aacharya Kriplani, Ward Kereen Line, Murwara, Distt. Katni, M.P. ... Petitioner versus State Of Chhattisgarh Through Station House Officer, P.S. Gandhinagar, Sarguja, District Ambikapur (C.G.) ... Respondent For Petitioner : Mr.Shailendra Dubey along with Mr.Roshan Sharma, Advocates For Respondent : Mr.Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha , Chief Justice 25.07.2025 1. Heard Mr.Shailendra Dubey, learned counsel for the petitioner as well as Mr.Hariom Rai, learned Panel Lawyer appearing for the respondent/State. 2. The petitioner has filed this petition under Section 528 of the Bhartiya Nagrik Suraksha Sanhita with following prayers:- BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.07.28 17:11:06 +0530 2 “A. Quash and set aside the order dated 09.03.2021 passed by the Special Judge (NDPS), Surguja, Ambikapur in Crime No. 336/2020 (Special Case (NDPS) No. 10/2021), whereby the petitioner was declared absconding and a permanent warrant of arrest was issued against him under Section 299 CrPC; B. Quash all subsequent proceedings arising out of the said illegal declaration of absconding, including charge sheet and FIR if any, in relation to the petitioner; C. Pass such other and further order(s) as may be deemed just and proper in the facts and circumstances of the case.” 3. Case of the prosecution, in brief, is that on the basis of secret information received on 18.09.2020 regarding illegal sale of toxic injection drugs in Jai Guru Dev Colony, Rubhash Nagar, Ambikapur, a raid was conducted by the local police. During this raid, two persons namely Babita Saha and Ranjeet Rai were arrested, and certain banned injections were seized. During the investigation, names of Ravi Rajak and Akash Rajak emerged as persons involved in the supply of the contraband. Both were arrested on 23.10.2020. Upon further inquiry and based on the memorandum statement of Ravi Rajak and Akash Rajak, the present petitioner was also implicated. 4. The petitioner was never arrested nor served with any notice or summons under Section 41A CrPC. No steps under Section 82 or 83 CrPC were initiated against the petitioner. However, the 3 learned trial Court, on mere police panchnama, without any valid proclamation or service attempt, erroneously invoked Section 299 CrPC and declared the petitioner as absconding on 9.3.2021 and issued a permanent warrant of arrest. 5. The petitioner was wrongly declared absconding by the trial Court without following the procedure prescribed under Section 82 CrPC, and on that basis, a separate charge-sheet was filed only against co-accused persons, excluding the present petitioner. This charge-sheet was submitted while showing the petitioner as absconding, which is legally impermissible in absence of due proclamation and proceedings under Section 82 CrPC. A copy of the said charge sheet is annexed herewith as Annexure A/2. 6. The trial proceeded against other accused persons and eventually concluded. Vide judgment dated 18.01.2022, learned trial Court acquitted all co-accused persons, including those whose memorandum statement had implicated the petitioner. A copy of the said judgment is annexed herewith as Annexure A/3. 7. The prosecution failed to lead any direct or independent evidence against the petitioner. In fact, the prosecution witnesses turned hostile and did not support the case during trial. Copies of relevant statements are annexed as Annexure A/4. 8. The petitioner was undergoing medical treatment during the pendency of the investigation/trial, and had tested COVID-19 positive. He was admitted to hospital, and later resumed normal 4 life. He was not absconding in law. Medical documents are annexed as Annexure A/5. 9. The earlier petition filed by the petitioner seeking quashment of FIR was withdrawn with liberty to file a fresh petition. A copy of the order dated 27.11.2024 and 06.05.2025 is annexed as Annexure A/6 colly. 10. Learned trial Court completed the trial and all accused persons in said crime is acquitted from all charges but permanent warrant of arrest was issued against the present petitioner. Hence, this petition. 11. Learned counsel for the petitioner submits that the present petitioner is innocent and he has not committed any offence as alleged against him. Learned trial Court invoked Section 299 CrPC and declared the petitioner as absconder without following the mandatory procedure prescribed under Section 82 of the CrPC. The petitioner has filed complete order-sheets which show that there is not a single entry which shows any compliance with the provisions contained in Section 82 of the CrPC. Neither any proclamation was issued in the prescribed form, nor was there any publication or affixation as required under law. Hence, the impugned order dated 09.03.2021 is illegal, arbitrary and liable to be quashed for want of jurisdiction and violation of procedural safeguards. He further submits that proclamation process under Section 82 CrPC is a sine qua non (mandatory precondition for invoking Section 299 CrPC) and without following the said 5 procedure, declaration of an accused as "absconding” is null and void. He also submits that learned trial Court completed the trial and all accused persons in said crime are acquitted from all charges. The present petitioner has made an accused based on memorandum of the co-accused and the memorandum witnesses has been examined before the trial Court and they have turned hostile and based on the same memorandum statement, the present petitioner was made an accused. He contended that learned trial Court issued a permanent warrant of arrest against the petitioner and after discharged from the hospital, he was running their business and living a normal life residing in his own house and as such, the police had an ample opportunity to arrest him by serving him notice of arrest, but nothing was done on the part of police and learned trial Court without following the procedure contined in Section 82 of the CrPC declared him absconding, which is per se illegal and arbitrary. As such, the petition deserves to be allowed and the order dated 9.3.2021 passed by the Special Judge (NDPS), Surguja, Ambikapur in Special Case (NDPS) No.10/2021, whereby the petitioner was declared absconder and issuane of permanent warrant of arrest against him under Section 299 of the CrPC deserves to be set aside. He relies upon the judgment of learned Single Bench of this Court in the matter of Dr.Ram Kumar Nayak v. Gajanan Agrawal (CRMP No.303 of 2021), decided on 17.03.2021, the judgment of Delhi High Court in the matter of Rohit Kumar @ Raju v. State of 6 NCT Delhi thr. The Standing Counsel & Ors, 2007 (98) DRJ 714 and the judgment of the Allahabad High Court in the matter of Devendra Singh Negi v. State of U.P. and others, 1993 SCC OnLine All 90. 12. On the other hand, learned Panel Lawyer appearing for the respondent/State opposes the submissions made by learned counsel for the petitioner and submits that vide letter dated 4.3.2021 the Inspector General of Police, Surguja Range, Surguja has granted permission to file a charge-sheet in the Court under Section 299 of the CrPC against the absconding accused Dilip Kumar (petitioner herein) and directed the Superintendent of Police, District Surguja to take legal action against the absconding accused of the case within 10 days and thereafter on 9.3.2021 charge-sheet was submitted before the competent Court only against co-accused persons, excluding the present petitioner and learned Special Court has recorded in the order-sheet that accused Babita Saha, Ranjit Rai, Ravi Rajak, and Akash Rajak are in judicial custody. The remand case was attached to the original record. The investigating officer has declared the remaining accused, Dilip Kumar Virwani (petitioner herein), to be absconding. The absconding panchnama has also been attached in connection with his absconding, and despite efforts, expressing the possibility of not finding this accused / petitioner in the near future, a challan has been submitted in his absence. Regarding the absconding accused / petitioner Dilip Kumar Virwani, evidence 7 was recorded under Section 299 CrPC by Investigating Officer Mr. Bhoj Kumar Gupta. Therefore, the said accused was declared absconding, and a permanent warrant of arrest was issued agaisnt him. He also submits that the Special Judge (N.D.P.S. Act), Surguja, Ambikapur after full-fledged trial vide judgment dated 18.01.2022 acquitted other co-accused namely, Babita Saha, Ranjit Rai, Ravi Rajak, and Akash Rajak mentioning a note in para 54 of its judgment that one of the accused / petitioner in the case, Dilip Kumar Virwani, is absconding. Therefore, all the seized property in the case should be kept safe. Considering the above-stated facts, the petition deserves to be dismissed. 13. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the documents appended with petition. 14. Learned Single Bench of this Court in the matter of Dr.Ram Kumar Nayak (supra) has held as under:- “9. A careful perusal of the aforesaid orders would show that on 06/08/2018, learned trial Magistrate issued warrant of arrest against the petitioner/accused and when it returned unserved, on 06/02/2019, he directed for issuance of fresh warrant of arrest against the petitioner/accused and fixed the matter for 07/03/2019 and signed it but thereafter, he again recalled that order and placed the matter for consideration on 07/02/2019. Then, on 07/02/2019, learned trial Magistrate declared the petitioner/accused as an absconder giving complete go-by to the provisions contained under sub-sections 8 (1) and (2) of Section 82 of CrPC. It is quite apparent from the aforesaid orders that the Court has not recorded satisfaction that petitioner/accused is absconding or is concealing himself in order to avoid service of warrant of arrest issued against him and moreover, the proclamation has also not been published asking him to appear within 30 days at specified time and place in the manner prescribed under Section 82(2) of CrPC and straightway, petitioner/accused has been declared as absconder and permanent warrant of arrest has been issued against him. The procedure adopted by learned trial Magistrate is contrary to sub-sections (1) and (2) of Section 82 of CrPC and without following the procedure which is mandatory in character, the petitioner/accused has been declared as absconder and permanent warrant of arrest has been issued against him, which is absolutely illegal and bad in law, as such, the impugned orders are hereby set aside in both the petitions. Petitioner/accused is accordingly directed to appear before the trial Magistrate on 05/04/2021. The evidence has already been closed and the matter has been heard, but since it has been stated at the Bar that the Judicial Magistrate First Class, Basna, Mahasamund who heard the matter has now been transferred, the trial Magistrate currently posted at Basna, Mahasamund is directed to decide the matter within 30 days from the date of receipt of copy of this order.” 15. The Delhi High Court in the matter of Rohit Kumar @ Raju (supra) has held as under:- 9 “22. the proclamation issued under Section 82 Cr.P.C. requires appearance of the person, against whom warrant has been issued, at a specified time, at a specified place. The date fixed should be not less than thirty days from the date of publication of the proclamation. If that be so, simultaneous attachment of property cannot be effected. 25. The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment under cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words “at any time after the issue of proclamation” are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 & 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in clauses (a) and (b) of the provision to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.” 10 16.The Allahabad High Court in the matter of Devendra Singh Negi (supra) has observed as under:- “24. The circumstances upon which attachment order is founded should clearly spell out from the order itself. The Magistrate should also bear in mind that orders under Sections 82, 83 of the Code should always be passed in open court and preserved on the record and at the same time the process of attachment should not be hastily issued in a routine manner or surreptitiously. 25. In the present case I have already noticed earlier that the orders under Sections 82, 83 of the Code have not been preserved on the record. The learned C.J.M. has not been able to tell who passed these orders and he further informed the court that some times the orders in original are passed on an application given by the Investigating Officer and the same is taken away by him. Such a practice, on the face of it is beyond all known canons of judicial process. In such circumstances, I have no option but to quash the proceedings under Secs.82, 83 Cr.P.C. against the applicant. 26. The learned counsel for the applicant has taken pains to argue that the atmosphere against the applicant at Tehri Garhwal is surcharged with bias and more so now because it is on his application that this Court had issued notice to the C.J.M. Tehri Garhwal. He has prayed that the case be transferred to some neighbouring district. The submission made by the learned counsel for the applicant has substance. The applicant has not been given a fair deal when he wanted to surrender and he may have a reasonable apprehension in his mind that he will not get even justice in the surcharged atmosphere at present. I am 11 further of the view that in the circumstances prevailing at Tehri Garhwal the speedy disposal of the bail application of the applicant is far dream. The case may be transferred for the speedy disposal of the bail application of the applicant to some neighbouring district.” 17.In the present case, it appears that on the basis of secret information received on 18.09.2020 regarding illegal sale of toxic injection drugs in Jai Guru Dev Colony, Rubhash Nagar, Ambikapur, a raid was conducted by the local police. During this raid, two persons namely Babita Saha and Ranjeet Rai were arrested and certain banned injections were seized. During the investigation, names of Ravi Rajak and Akash Rajak emerged as persons involved in the supply of the contraband. Both were arrested on 23.10.2020. Upon further inquiry and based on the memorandum statement of Ravi Rajak and Akash Rajak, the present petitioner has also been implicated. It also appears that the Inspector General of Police, Surguja Range, Surguja vide letter dated 4.3.2021 has granted permission to file a charge- sheet in the Court under Section 299 of the CrPC against the absconding accused / petitioner Dilip Kumar Virwani and directed the Superintendent of Police, District Surguja to take legal action against the absconding accused within 10 days and thereafter separate charge-sheet was filed before the competent Court only against co-accused namely, Babita Saha and Ranjeet Rai, Ravi Rajak and Akash Rajak, excluding the present petitioner on 12 9.3.2021 and learned Special Court on 9.3.2021 has recorded in the order-sheet that accused Babita Saha, Ranjit Rai, Ravi Rajak and Akash Rajak are in judicial custody. The remand case was attached to the original record. The investigating officer has declared the remaining accused, Dilip Kumar Virwani (petitioner herein), to be absconding. The absconding panchnama has also been attached in connection with his absconding and despite efforts, expressing the possibility of not finding this accused in the near future, a challan has been presented in his absence. Regarding the absconding accused Dilip Kumar Virwani, evidence was recorded under Section 299 CrPC by Investigating Officer Mr. Bhoj Kumar Gupta. Therefore, the said accused was declared absconding and a permanent warrant of arrest was issued against him. It also appears that the Special Judge (N.D.P.S. Act), Surguja, Ambikapur after full-fledged trial vide judgment dated 18.01.2022 acquitted other co-accused Babita Saha, Ranjit Rai, Ravi Rajak, and Akash Rajak mentioning a note in para 54 of its judgment that one of the accused in the case, Dilip Kumar Birwani, is absconding. 18. In the matter of Dr.Ram Kumar Nayak (supra), final arguments have already been heard on 23.07.2018 i.e. more than two years back and since final argument has already been heard and merely because of the absence of the petitioner/accused, judgment could not be pronounced. In Devendra Singh Negi (supra), the Court held that process of attachment should not be hastily issued in a 13 routine manner or surreptitiously. In Rohit Kumar @ Raju (supra), the Court held that he lacks even elementary knowledge about the Code of Criminal Procedure and also does not know as to in which cases and in what manner, proclamation under Section 82/83 Cr.P.C. are to be issued. But in the present case, learned Special Court on 9.3.2021 has recorded that the investigating officer has declared accused / petitioner Dilip Kumar Virwani to be absconder, absconding panchnama has also been attached in connection with his absconding and despite efforts, expressing the possibility of not finding this accused in the near future, a challan has been presented in his absence. Regarding the absconding accused / petitioner Dilip Kumar Virwani, evidence was recorded under Section 299 of the CrPC by Investigating Officer Mr. Bhoj Kumar Gupta and as such, the said accused was declared absconder and permanent warrant of arrest was issued against him. As such, the judgments relied upon by learned counsel for the petitioner are distinguishable to the facts of the present case. 19. A fugitive from justice does not have the right to approach a High Court (or any higher court) without first surrendering to the trial court where the case is pending. The principle is that a person on the run cannot seek legal remedies while evading the legal process. 20. Considering the arguments advanced by learned counsel for the parties, further considering the fact charge-sheet was filed 14 showing the petitioner as an absconder and throughout the trial the present petitioner was not appeared / present before the Special Court and after acquittal of co-accused Babita Saha, Ranjit Rai, Ravi Rajak, and Akash Rajak, he has filed the present petition for quashing of the order dated 9.3.2021 by which the petitioner has been declared as an absconder under Section 299 of the CrPC and a permanent warrant of arrest was issued against him and there is already a police report that the petitioner is not traceable and also considering the fact that the person who is freeing from the clutches of law has no right to approach the High Court or any higher Court, we are of the considered opinion that learned Special Judge has not committed any illegality or irregularity in invoking the provisions contained in Section 299 of the CrPC, declaring the petitioner as absconder and issuing a permanent warrant of arrest against him. No interference is called for. 21. Accordingly, the petition being devoid of merit is liable to be and is hereby dismissed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu