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Judgment
VIKRAM AGGARWAL, J (Oral).
The present petition instituted under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, assails the order dated 20.01.2025 (Annexure P.1) passed by the Court of Chief Judicial Magistrate, Chandigarh, whereby the petitioner was declared a proclaimed person.
The facts, as emanating from the paper book, are that a complaint under Section 276(B) read with Section 278-B of the Income Tax Act, 1961 (for short referred to as `the I.T. Act) [Annexure P.2), was instituted against M/s Zanders Engineers Ltd. in which the petitioner was accused No.3. In the said complaint, summoning order dated 15.02.2018 (Annexure P.3) was issued.
Thereafter, the matter remained pending for service of the accused. Perusal of order dated 02.09.2024 (Annexure P.8) shows that bailable warrants were issued to procure the presence of the accused. Thereafter, non-bailable warrants were issued and eventually proclamation under Section 82 Cr.P.C. was issued on 29.11.2024 for 20.01.2025. On 20.01.2025, the petitioner was declared a proclaimed person.
Learned counsel for the petitioner submits that the order vide which the petitioner was declared a proclaimed person is not sustainable, for, at no point of time, was the petitioner served and even the order issuing proclamation under Section 82 Cr.P.C., was not passed in accordance with law.
Learned counsel for the petitioner submits that the petitioner is willing to surrender before the trial Court, but apprehends that since she has been declared a proclaimed person, the moment she surrenders, she would be taken into custody.
Notice of motion.
Mr. Shubham Mangla, APP, U.T., Chandigarh accepts notice on behalf of respondent No.1, whereas Mr. Amanpreet Singh, Senior Standing Counsel, accepts notice on behalf of respondent No.2.
I have considered the submissions made by learned counsel the petitioner.
Concededly, the matter remained pending for service of the accused on account of non furnishing of correct address, the Presiding Officer not holding Court etc. On 02.09.2024, the following order was passed:-
“Correct address of accused not filed. An application for placing on record filed by the complainant, in which it is mentioned that address mentioned in the complaint is the last known address of accused. Same is taken on record. Perusal of the case file shows that summons to accused have been issued various times but it has remained unserved. It appears that accused is intentionally avoiding service and has left the address mentioned in the complaint. Accordingly, now, let the presence of the accused persons be secured by way of issuance of bailable warrants in the sum of Rs. 50,000/- with one surety in the like amount for 30.09.2024.”
Thereafter, on 30.09.2024, the following order was passed:-
“Bailable warrants issued against the accused persons received back unserved. It appears that the accused persons are having due knowledge of the pendency of the case against them and still not appearing in the Court. Let the presence of the accused persons be secured by way of issuance of non-bailable warrants of arrest for 25.10.2024.”
Since, Non Bailable Warrants of arrest also remained unserved, the following order was passed on 29.11.2024:-
“Non-bailable warrants of arrest received back unserved. Despite issuance of non-bailable warrants of arrest against the said accused persons, their presence could not be secured nor they have themselves surrendered before the Court till now. In view of the report on non-bailable warrants of the accused persons, this Court is satisfied that the presence of the said accused persons cannot be secured through issuance of non-bailable warrants. Therefore, presence of the accused persons are ordered to be secured through proclamation U/Sec. 82 Cr.P.C. for 20.12.2024. The executing official be also directed to come present in person in the Court on 20.12.2024 for recording his statement regarding publication of proclamation against the accused persons. Also, to come up on 20.01.2025 for awaiting presence of the accused persons.”
Eventually, on 20.01.2025, the petitioner was declared a proclaimed person.
Before proceeding to examine the legality of the impugned order, it would be apposite to refer to the statutory provisions and the law on the subject.
Section 82 Cr.P.C lays down as under:-
“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.
(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 court-house;
(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 Sections 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).”
In the case of Sonu Vs. State of Haryana, 2021(1) RCR (Criminal) 319, a coordinate Bench, while examining Section 82 Cr.P.C, summarised the essential requirements for issuance and publication of proclamation against an abconder and declaring him a proclaimed person/offender;
“9.The essential requirements of section 82 of the Cr.P.C., 1973 for issuance and publication of proclamation against an abconder and declaring him as proclaimed person/offender may be summarized as under:-
(i)Prior issuance of warrant of arrest by the Court is sine qua non for issuance and publication of the proclamation and the Court has to first issue warrant of arrest against the person concerned. (See Rohit Kumar v. State of Delhi: 2008 Crl. J. 2561).
(ii)There must be a report before the Court that the person against whom warrant was issued had absconded or had been concealing himself so that the warrant of arrest could not be executed against him. However, the Court is not bound to take evidence in this regard before issuing a Proclamation under section 82(1) of the Cr.P.C., 1973. (See Rohit Kumar v. State of Delhi: 2008 Crl. J 2561).
(iii)The Court cannot issue the Proclamation as a matter of course because the Police is asking for it. The Court must be prima facie satisfied that the person has absconded or is concealing himself so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence. (See Bishundayal Mahton and others v. Emperor: AIR 1943 Patna 366 and Devender Singh Negi v. State of U.P.: 1994 Crl LJ (Allahabad HC) 1783).
(iv)The requisite date and place for appearance must be specified in the proclamation requiring such person to appear on such date at the specified place. Such date must not be less than 30 clear days from the date of issuance and publication of the proclamation. (See Gurappa Gugal and others v. State of Mysore 1969 CriLJ 826 and Shokat Ali v. State of Haryna: 2020 (2) RCR (Criminal) 339).
(v)Where the period between issuance and publication of the proclamation and the specified date of hearing is less than thirty days, the accused cannot be declared a proclaimed person/offender and the proclamation has to be issued and published again. (See Dilbagh Singh v. State of Punjab (P&H): 2015 (8) RCR (Criminal) 166 and Ashok Kumar v. State of Haryana and another: 2013 (4) RCR (Criminal) 550).
(vi)The Proclamation has to be published in the manner laid down in section 82(2) of the Cr.P.C., 1973. For publication the proclamation has to be first publicly read in some conspicuous place of the town or village in which the accused ordinarily resides; then the same has to be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides or to some conspicuous place of such town or village and thereafter a copy of the proclamation has to be affixed to some conspicuous part of the Court-house. The three sub-clauses (a)- (c) in section 82 (2(i) of the Cr.P.C., 1973 are conjunctive and not disjunctive, which means that there would be no valid publication of the proclamation unless all the three modes of publication are proved. (See Pawan Kumar Gupta v. The State of W.B.: 1973 CriLJ 1368). Where the Court so orders a copy of the proclamation has to be additionally published in a daily newspaper circulating in the place in which the accused ordinarily resides. Advisably, proclamation has to be issued with four copies so that one each of the three copies of the proclamation may be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides, to some conspicuous place of such town or village and to some conspicuous part of the Courthouse and report regarding publication may be made on the fourth copy of the proclamation. Additional copy will be required where the proclamation is also required to be published in the newspaper.
(vii)Statement of the serving officer has to be recorded by the Court as to the date and mode of publication of the proclamation. (See Birad Dan v. State: 1958 CriLJ 965).
(viii)The Court issuing the proclamation has to make a statement in writing in its order that the proclamation was duly published on a specified day in a manner specified in section 82(2)(i) of the Cr.P.C, 1973. Such statement in writing by the Court is declared to be conclusive evidence that the requirements of Section 82 have been complied with and that the proclamation was published on such day. (See Birad Dan v. State: 1958 CriLJ 965).
(xi)The conditions specified in section 82(2) of the Cr.P.C., 1973 for the publication of a Proclamation against an absconder are mandatory. Any noncompliance therewith cannot be cured as an irregularity and renders the Proclamation and proceedings subsequent thereto a nullity. (See Devendra Singh Negi alias Debu v. State of U.P. and another: 1994 CriLJ 1783 and Pal Singh v. The State: 1955 CriLJ 318.”
Clearly, while summarising the requirements, the coordinate Bench referred to almost the entire law on the subject. Still further, there can be no gainsaying the fact that the provisions of Section 82 Cr.P.C. are required to be complied with scrupulously.
It, therefore, emerges that prior to the issuance of a proclamation under Section 82 Cr.P.C, the Court concerned would be required to record its satisfaction that the accused, against whom such a proclamation was sought to be issued was absconding or was concealing himself/herself with an intention to evade arrest. This satisfaction is required to be recorded by a Court initiating proceedings under Section 82 Cr.P.C on account of the grave civil and criminal ramifications that the provision has qua the rights of an accused.
Reverting to the facts of the case in hand, if the order initiating proceedings under Section 82 Cr.P.C. is tested on the touchstone of the principles summarized by the Coordinate Bench, this Court finds the same to be unsustainable. No satisfaction was recorded by the trial Court that it had reason(s) to believe that the accused had absconded or concealed himself/herself so that the warrants could not be executed. Instead, the Court only noticed in the order dated 29.11.2024 that in view of the non-bailable warrants having been received back unserved, the Court was satisfied that the presence of the accused could not be secured through non-bailable warrants and, therefore, invoked the provisions of Section 82 Cr.P.C.
In view of the above, the order dated 20.01.2025 (Annexure P.1) is found to be unsustainable and is set aside.
If the petitioner surrenders before the trial Court within a period of 30 days from today and moves an application for bail, the same be decided expeditiously, in accordance with law. However, in case, the petitioner does not appear, which may be an eventuality as she may be interested in only getting the order declaring her a proclaimed person set aside, the present petition shall be deemed to have been dismissed. The Court is impelled to pass this order because now the petitioner has knowledge of the proceedings and has given an undertaking to surrender before the trial Court. No one should be permitted to misuse the process of law by assailing an order on technical grounds and then taking undue advantage of the said order having been set aside, which will tantamount to frustrating the proceedings before the trial Court. A Court is expected to balance the equities and in order to achieve that, this Court deems it appropriate to pass the instant order.
The petition is accordingly disposed of in the above terms.