Mere Non-Availability Of Accused At His Address Not Sufficient To Proceed Against Him As Absconder Unless Deliberate Concealment To Avoid Arrest Is Established: Gujarat High Court
The Court quashed Section 82 CrPC proclamation based on police report found to be forged; directed prosecution of head constable and issued guidelines for trial courts.
The Gujarat High Court has held that the mere non-availability of an accused at his address is not sufficient to treat him as an absconder, unless it is established that he is deliberately concealing himself to avoid arrest. The Court added that the mere fact that the police could not find the accused is also not enough.
Applying this, the Court quashed an order issuing a proclamation under Section 82 of CrPC and directing evidence to be recorded in the accused’s absence under Section 299. The order rested on a police report whose genuineness the Court doubted. The Court directed criminal prosecution of the Head Constable who filed it and issued five guidelines for courts, to be circulated to all district courts in Gujarat.
A Bench of Justice M.K. Thakker observed, “Mere non-availability of the accused at the address is not sufficient unless it is established that the accused is deliberately concealing himself to avoid arrest”.
Senior Advocate H.S. Tolia appeared for the applicant Hardik Dave, Public Prosecutor appeared for the respondent.
The other issued guidelines that the Bench issued, for the Courts before declaring the person as a proclaim offender, are:
(1) The police officer shall submit a report before the Court stating that the person against whom the warrant has been issued has absconded or is concealing himself. Such concealment must be deliberate and with the intention of avoiding arrest. The mere fact that the police could not find the accused is not sufficient.
(2) The police officer shall file an affidavit/status report disclosing the address, telephone number and email address, if available, of the accused against whom the warrant has been issued, along with the reasons for the inability to secure the presence of the accused before the Court.
(3) Where the warrant has been affixed to a conspicuous part of the house in which the person ordinarily resides, the police officer shall annex to the affidavit a photograph showing the affixation of the warrant. The photograph must be taken in such a manner as to clearly establish that the warrant has been affixed to the very house in which the person ordinarily resides.
(4) The Investigating Officer or the Police Inspector shall record in the case diary the names of at least two respectable persons residing in the locality of the accused/suspect, along with their contact details, including their addresses and telephone numbers, who can verify that the address of the accused/suspect mentioned in the application seeking issuance of a warrant of arrest is correct and complete. Photocopies of the identity proofs of such persons shall also be obtained by the police officer concerned
“The Superintendent of Police, Gir Somnath, is directed to conclude the departmental inquiry in accordance with law, in a manner that conveys a clear message to all police officers that any attempt to fabricate or create evidence while discharging their official duties shall be viewed seriously. The learned Court at Veraval is directed to initiate criminal prosecution against Head Constable Mr. P.A. Parmar for producing a false report during judicial proceedings, after following the due procedure prescribed under law”, the Bench had noted.
The petitioner is an accused in an FIR registered at Una Police Station, Gir Somnath, under Sections 406, 409, 420 and 120B of the IPC and Section 3 of the Gujarat Protection of Interest of Depositors Act, 2003. He was granted anticipatory bail, and a chargesheet was filed before the Special Court at Rajkot, where he appeared regularly. The case was later transferred to the Special Court at Veraval. He said he never received notice of the transfer and still lives at the same address.
The Veraval court’s notices and bailable warrant were returned unserved, and a non-bailable warrant followed. No report on its service had been filed when the court issued the proclamation. The State defended the order, relying on a Head Constable’s report recording a local resident’s statement.
The Court found that the trial court did not satisfy itself about service of the notice or the bailable warrant. Relying on Inder Mohan Goswami v. State of Uttaranchal, it noted that warrants interfere with personal liberty and must not be issued without scrutiny and application of mind. It held that a Section 82 proclamation requires satisfaction, on the material on record, that the person knows of the proceedings and is avoiding the process despite lawful efforts to execute the warrant.
The statement relied on gave no specific address or contact details for the witness. The Court directed the Head Constable to produce him. The Police Inspector informed the Court that no such person lived at the stated address and that no “Siddharth Apartment” existed in the area. The Superintendent of Police suspended the Head Constable for preparing a forged report. The Court held that a departmental inquiry alone would not suffice, as the petitioner had been declared an absconder and forced to approach the High Court.
Cause Title: Sandeepkumar Radhakrushnalal Shrivastav v. State of Gujarat (Neutral Citation: 2026:GUJHC:64164)
Appearances:
Applicant: Senior Advocate H.S. Tolia with Biren J. Panchal Public Prosecutor.
Respondent: Hardik Dave with Addl. Public Prosecutor Monali Bhatt.