Gurdial Singh vs State of Punjab

MANISHA BATRA, J. (Oral)

The instant petition has been filed by the petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 for quashing of order dated 18.08.2025 (Annexure P-4), passed by the Court of learned Sub Divisional Judicial Magistrate, Garhshankar in case arising out of FIR No. 162 dated 24.08.2020, registered under Section 21(1) of Mines and Minerals Act, 1957, Sections 379, 279 and 188 of IPC, Section 51(b) of Disaster Management Act, 2005 and Section 3 of Epidemic Disease Act, 1897 at Police Station Garhshankar, District Hoshiarpur, whereby the petitioner had been declared a proclaimed person/absconder.

It is argued by learned counsel for the petitioner that he was on anticipatory bail. The challan was presented without his knowledge, due to which, he could not appear before the learned trial Court, which resulted into declaring him a proclaimed person/absconder. His absence before the Court was neither deliberate nor intentional. It is further submitted that he was never served with any notice/warrants issued by the learned trial Court. He had been declared a proclaimed person/absconder without following the proper procedure prescribed under Section 82 of Cr.P.C. He is ready to join the Court proceedings. Hence, it is urged that the impugned order is liable to be set aside.

Notice of motion.

Learned Senior Deputy Advocate General, Punjab, who has advance notice of the petition, has resisted the petition by submitting that there is no infirmity in the impugned order and the petitioner has rightly been declared a proclaimed person/absconder as he was running away from the process of Court. It is, thus, urged that the petition is liable to be dismissed.

This Court has heard the rival submissions of learned counsel for the parties.

On giving due deliberations to the contentions as raised by learned counsel for the parties and on an overall perusal of the orders passed by the learned trial Court from the date of initiating proceedings under Section 82 Cr.P.C. as against the petitioner till the date of declaring him a proclaimed absconder, this Court is of the considered opinion that the impugned order dated 18.08.2025 suffers from some illegalities and is liable to be quashed with all the consequential proceedings arising therefrom.

After going through the material placed on record as well as the copies of zimni orders passed by the learned trial Court, it is revealed that on 27.05.2025, since the non-bailable warrants issued against the petitioner were received back unserved, the learned trial Court had ordered for issuance of proclamation against him for 18.08.2025. A bare perusal of this order shows that the learned trial Court before ordering for publication of proclamation has not recorded its proper satisfaction that that the petitioner had absconded or was concealing himself so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence, which was in violation of the provisions of Section 82(1) of Cr.P.C. Reliance in this regard can be placed upon Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561.

Further, a perusal of the statement of the serving police official reveals that the proclamation was not publicly read over in some conspicuous place of the town or village in which the petitioner was supposed to be residing. As per Section 82 (2) of Cr.P.C. 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. 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. Reliance in this regard can be placed upon Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368.

Accordingly, in view of the discussion as made above and also in view of the ratio of law as laid down in above cited authorities, the present petition is allowed and the impugned order dated 18.08.2025 (Annexure P-4), passed by the Court of learned Sub Divisional Judicial Magistrate, Garhshankar in case arising out of FIR No. 162 dated 24.08.2020, registered under Section 21(1) of Mines and Minerals Act, 1957, Sections 379, 279 and 188 of IPC, Section 51(b) of Disaster Management Act, 2005 and Section 3 of Epidemic Disease Act, 1897 at Police Station Garhshankar, District Hoshiarpur, whereby the petitioner had been declared a proclaimed person/absconder, is quashed with all consequential proceedings arising therefrom.

Keeping in view the fact that the petitioner is ready to join the Court proceedings which would obviously help in speedy conclusion of trial, he is directed to surrender before the learned trial Court within a period of 20 days from today and on doing so, the learned trial Court shall release him on bail, subject to his furnishing fresh personal/surety bonds to its satisfaction.

Till the appearance of the petitioner before the learned trial Court, his arrest shall remain stayed.

It is made clear that in case the petitioner fails to appear before the learned trial Court within the stipulated time, this petition shall be deemed to be dismissed.