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Petitioner Kulveer Singh @ Kulvir Singh @ Kulbir Singh @ Bagga, accused in criminal case arising out of FIR No.110 dated 02.10.2018 under Sections 61(1)14 of the Punjab Excise Act, Police Station Julkan, District Patiala, has filed this petition under Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 for quashing order dated 20.01.2024 of learned Judicial Magistrate Ist Class, Patiala, declaring him a “proclaimed person”.
Learned counsel for the petitioner submits that notice/bailable warrants and non-bailable were issued against the petitioner upon presentation of the challan, for the offence which was bailable in nature. When the non-bailable warrants could not be executed, learned trial Court initiated proceedings under Section 82 Cr.P.C. on 11.12.2023 and petitioner was declared a proclaimed person on 20.01.2024. Referring to Annexure P5, he submits that petitioner was in custody in another case from 01.09.2023 to 16.01.2024, thus, when the proceedings under Section 82 Cr.P.C. were initiated and proclamation was effected, petitioner was not even present in his home. Before initiating proceedings, no satisfaction was recorded by the trial Court that petitioner had absconded or was concealing himself. He further submits that petitioner was now in judicial custody in FIR No.140 dated 09.06.2026 under Sections 109, 117(2), 118(1), 127(1), 115(2), 351, 190 and 191(3) Bharatiya Nyaya Sanhita, 2023, Police Station City Rajpura, District Patiala and had already moved an application for surrender and issuance of production warrants.
Section 82 Cr.P.C. which provides for publication of proclamation against a person absconding is reproduced hereunder for the facility of reference:-
—(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. 50 1
[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 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 co-ordinate Bench of this Court in CRM-M-41715-2021 titled “Anita Sharma Vs. State of Punjab”, date of decision 26.03.2021, has summarized the essential requirements of Section 82 Cr.P.C. 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 Vs. 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.. (See Rohit Kumar Vs. 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 Vs. Emperor: AIR 1943 Patna 366 and Devender Singh Negi Vs. 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 an publication of the proclamation. (See Gurappa Gugal and others Vs. State of Mysore 1969 CriLJ 826 and Shokat Ali Vs. 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 4 of 8 declared a proclaimed person/offender and the proclamation has to be issued and published again. (See Dilbagh Singh Vs. State of Punjab (P&II): 2015 (8) R.C.R. (criminal) 166 and Ashok Kumar Vs. 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.. 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. (See Pawan Kumar Gupta Vs. 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 Court-house 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 Vs. 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.. 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 Vs. State: 1958 CriLJ 965).
(xi)The conditions specified in Section 82(2) of the Cr.P.C. 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 Vs. State of U.P. and another 1994 CriLJ 1783 and Pal Singh Vs. The State: 1955 CriLJ 318)".
Perusal of record shows that when notice issued to the petitioner by learned trial Court was received back served and he did not appear, he was ordered to be summoned by way of bailable warrants in the sum of Rs.5,000/- with one surety in the like amount. Bailable warrants remained unexecuted and the Court of learned JMIC issued non-bailable warrants against the petitioner on 17.12.2022. Non-bailable warrants also remained unexecuted and on 11.12.2023 following order was passed:-
"………Non bailable warrants of arrest of accused Kulvir Singh received back unexected. Perusal of file, it is forthcoming that accused Kulvir Singh remained absent from the court since last date of hearing i.e. 18.09.2023. At this stage, looking at the fact that accused Kulvir Singh cannot be produced in ordinary way of process, proclamation under Section 82 Cr.P.C. against accused Kulvir Singh be issued for 20.01.2024."
The order merely records that presence of the accused could not be procured through ordinary process. There is no prima facie satisfaction recorded in the order that the petitioner had absconded or was concealing himself and that the warrant of arrest previously issued cannot be executed. On this sole ground, the order declaring petitioner a proclaimed person deserves to be set aside.
The proclamation was published at the local address of the petitioner. Annexure P5 is the copy of order dated 16.01.2024 in bail application no. BA/40/2024 filed by the petitioner in FIR No.59 dated 29.03.2022, under Sections 307, 323, 324,326, 341, 506, 353, 186, 201, 427, 148, 149 IPC, P.S. City Rajpura, District Patiala which shows that petitioner was in custody in other case w.e.f. 01.09.2023 and was ordered to be released on bail only on 16.01.20224. Since, petitioner was in judicial custody, on 11.12.2023 there was no occasion for issuing the proclamation as petitioner was neither concealing nor was absconding.
A person cannot be said to abscond or evade the execution of warrants when he is confined in jail in some other case. Confinement of the petitioner in jail cannot be construed as an act of absconding or deliberately concealing himself from the proceedings of the Court. On this ground also, order dated 20.01.2024 vide which petitioner was declared a ‘proclaimed person’ is unsustainable.
Oder of learned Judicial Magistrate Ist Class, Patiala dated 20.01.2024 declaring the petitioner a “proclaimed person” cannot be sustained in law and is hereby set aside and quashed.
Petitioner is stated to be in judicial custody in some other case. He has already moved an application for surrender in the case. For the first time, non-bailable warrants of arrest were issued against the petitioner on 18.03.2023. On that date, petitioner was not confined in jail. There is thus, no illegality in issuance of non-bailable warrants against the petitioner. In case, petitioner surrenders and moves an application for bail, learned trial Court shall decide the same expeditiously, in accordance with law.
The petition is allowed, on the terms above.
Pending miscellaneous applications, if any, stand disposed of.