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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM---MMM---6349463494---20242024
Gurpreet Singh @ Gopi
….Petitioner
versus
State of Punjab
….Respondent
Date of DecisionDecision: September 23,,, 2022026 Date of Uploading:Date of Uploading: September 23September 23, 202, 2026 CORAM: HON’BLE MR. JUSTICE SUMEET GOELHON’BLE MR. JUSTICE SUMEET GOEL Present:- Mr. Amit Dhawan, Advocate for the petitioner.
Mr. Adhiraj Singh Thind, AAG Punjab.
*****
SUMEET GOELSUMEET GOEL, J. (ORAL)
Present petition has been filed under Section 528 read with Section 482 of the BNSS, 2023, seeking quashing of the impugned order dated 14.11.2022 (Annexure P-5) passed by the learned Sub Divisional Judicial Magistrate, Nakodar, whereby, the petitioner has been declared as proclaimed person, in case bearing FIR No.108 dated 25.10.2019, registered under Sections 279, 304-A, 427 of the IPC, 1860, at Police Station City Nakodar, District Jalandhar Rural.
Learned counsel for the petitioner has contended that the impugned order, whereby the petitioner has been declared a proclaimed person, is wholly illegal, arbitrary, and unsustainable in the eyes of law. It has been submitted that summons, bailable or non-bailable warrants were never served upon the petitioner as the same were not received back. It has been argued that still, the Court below, vide order dated 30.08.2022 issued proclamation against the petitioner for 03.11.2022, which is not in consonance with the provisions of Section 82 of the Cr. P.C. Learned counsel has argued that the petitioner was very much present at his address and his work place during the entire period, but no police/ court official ever came to execute any non-bailable warrant upon him. It has been further argued that on 03.11.2022, the matter was adjourned to 14.11.2022 as 30 days had not been completed. Thereafter, vide impugned order dated 14.11.2022, the petitioner was illegally declared as proclaimed person.
It has been argued that the mandatory period of 30 days, as prescribed under Section 82 of the Cr.P.C., was not granted to the petitioner to cause his appearance before the learned trial Court. Learned counsel has further submitted that, vide order dated 30.08.2022, proclamation was issued against the petitioner for 03.11.2022. Thereafter, vide order dated 03.11.2022, the learned trial Court noted that the statement of the serving constable had been recorded and, since the mandatory period of 30 days had not yet elapsed, the matter was adjourned to 14.11.2022 for the appearance of the petitioner.
Learned counsel has argued that, as per the statement of the serving constable (Annexure P-4), he had visited the address of the petitioner on 10.10.2022 and effected the proclamation. It has thus been contended that, even if the prescribed period of 30 days is counted from the alleged date of execution of the proclamation, i.e. 10.10.2022, the said period had not expired by 03.11.2022.
Learned counsel has further argued that, instead of issuing a fresh proclamation on 03.11.2022 in accordance with the statutory requirement, the learned trial Court merely adjourned the matter to 14.11.2022. According to learned counsel, such course of action was not in consonance with the mandatory provisions of Section 82 of the Cr.P.C.
Learned counsel has submitted that, vide order dated 14.11.2022, the Court below without ensuring proper compliance of provisions under Section 82 Cr. P.C., declared the petitioner, as proclaimed person.
Thus, the order declaring the petitioner a proclaimed person is in gross violation of law and principles of natural justice as there was no deliberate evasion or non-appearance on the part of the petitioner. On the basis of these submissions, learned counsel has prayed that the impugned order is liable to be set-aside being illegal and unjustified.
Learned State counsel has filed reply by way of an affidavit dated 16.01.2025 (which is already on record). Raising submissions in tandem with the said reply, learned State counsel has opposed the present petition. While refuting the case set up by the petitioner, detailed arguments were advanced on merits, contending that the offence alleged against the petitioner is serious in nature. The petitioner was arrested on 25.01.2020 and was subsequently released on bail, whereinafter, despite issuance of bailable/ non-bailable warrants against the petitioner, he did not cause appearance before the trial Court and, thus, the petitioner evaded his arrest. It has been further argued that thereafter, proclamation was issued on 30.08.2022 against the petitioner for 03.11.2022 and on 03.11.2022, since 30 days had yet not been completed, the matter was adjourned to 14.11.2022 awaiting appearance of the petitioner. The petitioner, however, still did not cause appearance, consequently, vide the impugned order, the petitioner was declared as a proclaimed person. Moreover, it has been stated that the learned Court below followed the procedure as laid-down under Section 82 of the Cr. P.C., 1973 in letter and spirit and no discrepancy whatsoever is forthcoming from the records of the case. Accordingly, dismissal of the instant petition has been prayed for.
I have heard the learned counsel for the rival parties and carefully perused the record of the case.
The law is well settled that no person can be declared a proclaimed offender/person unless the procedure prescribed under Section 82 of the Code of Criminal Procedure, 1973 is strictly and meticulously adhered to. It is trite law that the provisions of Section 82 Cr.P.C. are mandatory in nature, and any non-compliance thereof vitiates the entire proceedings. Furthermore, Section 82(1) of the Cr. P.C. clearly provides that before issuing a proclamation requiring a person to appear, the Court must have reason to believe that such person has absconded or is concealing himself/ herself so that the warrant cannot be executed. Further, the proclamation must specify a date not less than 30 days from the date of publication for the accused to appear before the Court.
Perusal of the record shows that vide order dated 30.08.2022, proclamation was issued against the petitioner for 03.11.2022. It has been pleaded that the serving official had allegedly executed the proclamation on 10.10.2022. It is, thus, borne out that from the date of alleged proclamation, i.e., 10.10.2022, the prescribed period of 30 days was not completed by 03.11.2022. Perusal of the record further shows that on 03.11.2022, since 30 days had not yet been completed, therefore, the matter was adjourned to 14.11.2022 awaiting appearance of the petitioner. The law is well settled that when a matter is adjourned after issuance of proclamation, the Court is required to issue a fresh proclamation requiring the accused to cause appearance as per provisions of Section 82 of the Cr. P.C. Failure to do so vitiates the subsequent order declaring the accused as a proclaimed person. The impugned order dated 14.11.2022 also reflects non-compliance with the statutory requirement of waiting for a minimum of 30 days after publication of proclamation before declaring an accused a proclaimed person. In the considered opinion of this Court, clear notice period of not less than 30 days from the date of its publication must be provided in the proclamation itself. The same legal principle squarely applies in the present case.
This Court finds that the course adopted by the Court below is in clear contravention of, and antithetical to, the provisions of Section 82 of the Code of Criminal Procedure, 1973. The Court below has committed a manifest illegality by issuing and acting upon the proclamation without ensuring compliance with the mandatory statutory requirements. The learned Court below, while declaring the petitioner as a proclaimed person, failed to record the requisite judicial satisfaction regarding due execution of the proclamation and proceeded in a mechanical and perfunctory manner, rendering the impugned order legally unsustainable. Such an order being violative of mandatory provisions of law, cannot be sustained. Section 82 of the Criminal Procedure Code, 1973 reads 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).]”
A Coordinate Bench of this Court while dealing with invocation of the provision of Section 82 of the Code of Criminal Procedure, against an accused in the case of ‘Sonu v. State of Haryana, 2021(1) RCR (Criminal) 319’, held as under:
“9.The essential requirements of section 82 of the Cr.P.C., 1973 for issuance and publication of proclamation against an absconder 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 BishundayalMahton 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 non-compliance 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).”
It is by now a settled principle of law that prior to issuing a proclamation under Section 82 Cr. P.C., the Court is required to record its satisfaction that the accused, against whom such proclamation is sought, is absconding or is concealing himself/ herself with the intention to evade arrest. This foundational and jurisdictional requirement is conspicuously absent in the present case. A perusal of the impugned order dated 14.11.2022 reveals that no such satisfaction has been recorded by the Court below, nor does the record disclose any material which could justify an inference that the petitioner had absconded or was deliberately avoiding his appearance before the Court.
The provisions of Section 82 of the Code of Criminal Procedure, having serious civil and criminal ramifications qua the rights of an accused, particularly affecting his liberty and participation in trial proceedings, cannot be invoked in a casual or cavalier manner. The mandatory requirement of recording satisfaction that the accused has absconded or is concealing himself/ herself so that the warrant of arrest cannot be executed, as embodied under Section 82 Cr.P.C., must be scrupulously complied with on the basis of cogent and relevant material available on record. Any non-adherence to this statutory mandate while declaring an accused as a proclaimed offender/person vitiates the proclamation proceedings in their entirety.
In the aforesaid backdrop, this Court is of the considered opinion that no useful purpose would be served by permitting the criminal proceedings to continue against the petitioner, which are founded upon an illegal and procedurally flawed proclamation. It is, therefore, a fit and appropriate case for the exercise of inherent powers under Section 528 of the BNSS / Section 482 of the Cr.P.C., so as to prevent abuse of the process of law and to secure the ends of justice.
In view of the above findings, and considering the entirety of the facts and circumstances of the present case, the present petition is aaallowedllowed. Consequently, the impugned order dated 14.11.2022 (Annexure P-5) passed by the learned Sub Divisional Judicial Magistrate, Nakodar, whereby, the petitioner has been declared a proclaimed person, in case bearing FIR No.108 dated 25.10.2019, registered under Sections 279, 304-A, 427 of the IPC, 1860, at Police Station City Nakodar, District Jalandhar Rural, is hereby quashed qua the petitioner.
The petitioner is directed to cause appearance before the concerned trial Court within a period of 15 days from today, failing which the present petition would be deemed to be dismissed without any further reference to the Bench.
Pending application(s), if any, shall also stand disposed of accordingly.
(SUMEET GOEL)SUMEET GOEL