Meenu vs State of Punjab

SURYA PARTAP SINGH, J.

The order dated 02.02.2018 (Annexure P-6), hereinafter being referred to as 'impugned order', passed by the Court of learned Judicial Magistrate First Class Ludhiana, hereinafter being referred to as 'trial Court' only, is under challenge in the present petition. The present petition has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, hereinafter referred to as 'BNSS' only.

By virtue of abovementioned order, the learned trial Court, during the course of trial, for the commission of offence punishable under Sections 323, 325, 34 of Indian Penal Code, declared the petitioner to be a proclaimed person.

In nut-shell, the facts emerging from record are that the petitioner was facing a trial for the commission of offence punishable under Sections 323, 325, 34 of IPC and in the abovementioned case, she was on bail. However, later on when she could not appear before the learned trial Court on 16.07.2016, the learned trial Court issued summons to the petitioner. The same were not served and thereafter, bailable warrants and non-bailable warrants were issued, but, the same could not be executed.

Subsequently, vide order dated 13.06.2017, the learned trial Court issued a proclamation against the petitioner for 04.08.2017. On 04.08.2014 proclamation issued against the petitioner was not received back and a fresh proclamation against the petitioner was ordered to be issued for 11.09.2017. After many occasions, when proclamation was duly effected and statement of serving official was recorded on 04.01.2018, the learned trial Court adjourned the case to 02.02.2018. Consequently, by virtue of impugned order dated 02.02.2018, the learned trial Court declared the petitioner a proclaimed person.

The present petition has been filed by the petitioner by alleging that the impugned order is not sustainable in the eyes of law and deserves to be quashed, as the necessary procedure prescribed under Section 84 of the BNSS (erstwhile Section 82 of CrPC) was not complied with, while declaring the petitioner a proclaimed person. In this regard, it has been specifically alleged by the petitioner that the proclamation was not publicly read, as required under the law and that on the basis of a proclamation, which was issued for 04.01.2018, the petitioner was declared proclaimed person on 02.02.2018. As per petitioner, for 02.02.2018 any proclamation was never issued.

Heard.

It has been contended on behalf of petitioner that the learned trial Court has committed an error, when without following due process, it declared the petitioner to be a proclaimed person. It has been further contended by learned counsel for the petitioner that in the present case, proclamation issued against the petitioner is defective in view of the fact that the proclamation for 04.01.2018 was issued by the learned trial Court on 29.11.2017, but on 04.01.2018 the petitioner was not declared a proclaimed person. It has also been pointed out by learned counsel for the petitioner that in this case, no fresh proclamation was issued by the learned trial Court against the petitioner and only on the basis of previous proclamation, which was issued for 04.01.2018, the petitioner has been declared a proclaimed person on 02.02.2018. According to learned counsel for the petitioner, one of the essential steps to be taken during the course of proclamation was the reading of proclamation at a public place, and that in the present case, the executing Constable had not publicly read the proclamation at a public place. It has also been pointed out, by learned counsel for the petitioner, that publication of proclamation had taken place only three day before the date, for appearance, as for 04.01.2018 the proclamation was affixed on 01.01.2018.

In addition to above, it has also been alleged by the petitioner that because of defective procedure adopted by the learned trial Court, in declaring the petitioner to be a proclaimed person, the impugned order is liable to be set aside.

Per contra, the learned State Counsel has contended that the petitioner is the person, who violated the conditions of bail with impunity, and took the law in his own hands and jumped the bail. The learned State Counsel has argued that in view of above the petitioner cannot be permitted to derive any benefit from any technical defect, if any, which might have occurred, inadvertently, in the process of declaring the petitioner to be a proclaimed person.

The record has been perused carefully.

A perusal of the record shows that the petitioner has placed on record the copy of statement of executing Constable, recorded by the learned trial Court, before declaring the petitioner to be the proclaimed person. The statement of executing Constable, namely HC Jagdev Singh dated 04.01.2018, reads as under:-

A bare perusal of the above-mentioned statement of the executing Constable shows that the abovementioned executing Constable had not publicly read the contents of abovementioned proclamation. The learned trial Court declared the petitioner to be a proclaimed person on the basis of abovementioned proclamation, on 02.02.2018. However, as per laid down procedure, if the proclamation was issued for appearance on 04.01.2018 and on 04.01.2018 the petitioner was not declared a proclaimed person, and the case was adjourned for next date, i.e. for 02.02.2018, a fresh proclamation should have been issued against the petitioner. A perusal of record further reveals that without following the abovesaid procedure, the learned trial Court declared the petitioner a proclaimed person.

The procedure to be adopted by the Executing Constable, has been prescribed under Section 82(2) of CrPC, which lays down that following steps are necessary to be taken before declaring a person to be a proclaimed person:-

With regard to mandatory nature of abovementioned procedure, it has been repeatedly observed by this Court, that the compliance of abovementioned provisions of Section 82(2) of CrPC is mandatory in nature. It has also been held that if the above process is not followed in letter and spirit, the impugned order, declaring a person to be a proclaimed offender/proclaimed person, is defective.

In addition to above, it is also relevant to mention here that the statement of executing official nowhere depicts that the proclamation was read over at a public place in the area where the petitioner ordinarily resides, as prescribed under Section 82(2)(i)(a) Cr.P.C. Thus, the impugned order declaring the petitioner to be a proclaimed person is defective and not sustainable in the eyes of law.

This Court in the cases of 'Jarnail Singh v. State of Punjab &Anr.' CRM-M-27944 of 2024 and 'Gagandeep Singh v. State of Punjab' CRM-M-50704-2024, has observed that if a proclamation is not read at a conspicuous place of the town or village in which such person ordinarily resides, as prescribed under Section 82(2)(i)(a), the order declaring the abovesaid person to be a proclaimed person/proclaimed offender is defective and not sustainable in the eyes of law. Similar view has been taken by this High Court in the cases of 'Pal Singh Santa Singh v. State' AIR 1955 Punjab 18 and 'Tajinder Singh v. State of Punjab' in CRM-M-21736-2024.

With regard to above-discussed situation, in the case of 'Tirlok Chand Vs. State of Haryana' 2023(2) Law Herald 1545, this Court has observed that if a proclamation is issued for appearance of an accused on a fixed date before the Court, and on that date he is not declared proclaimed person, for subsequent date fresh proclamation should be issued.

Taking into consideration the cumulative effect of the abovementioned factors, as there was a defect in the impugned order while declaring the petitioner a proclaimed person, the order dated 02.02.2018, passed by the Court of learned Judicial Magistrate First Class Ludhiana, is hereby held to be perverse, defective and unsustainable in the eyes of law.

One of the glaring facts to be noted in the present case is that the petitioner was on bail in this case and her bail was never cancelled and bonds were never forfeited to the State. Thus, the natural inference, which can be drawn in the given fact situation, is that the bail order of the petitioner is still intact and therefore, she cannot be taken into custody.

In view of above, a direction is hereby issued to the petitioner to surrender before the learned trial Court by the next date of hearing & participate in the trial. Since her bail order is still continuing and bail bonds are intact, the learned trial Court shall not force the petitioner to seek fresh bail or furnish fresh bail bonds.

As a sequel to abovementioned observations, the present petition is hereby allowed in terms of directions contained in the foregoing paragraphs, and the impugned order dated 02.02.2018, passed by the learned trial Court, is hereby quashed.

Pending miscellaneous application(s), if any, shall stand disposed of, accordingly.