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Judgment
Neeraj Sharma ...Petitioner
Versus
State of Haryana ... Respondent CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT Present : Ms. Dilprit, Advocate for Mr. Manoj Pundir, Advocate for the petitioner.
Mr. Rajinder Kumar Banku, Sr.DAG, Haryana.
N.S.SHEKHAWAT, J. (Oral)
The petitioner has filed the present petition under Section 528 of BNSS, 2023 with a prayer to quash the impugned order dated 13.09.2023 (Annexure P-7) passed by the Court of Additional Chief Judicial Magistrate, Karnal, in a case arising out of FIR No.0458 dated 01.05.2018 (Annexure P-1), registered under Section 160 of the Indian Penal Code, 1860 (corresponding to Section 194(2) of BNS), at Police Station Sadar Karnal, District Karnal, whereby, the petitioner has been declared a proclaimed person, as well as all other consequential proceedings arising therefrom qua the petitioner.
Learned counsel for the petitioner submits that the petitioner has been falsely involved in FIR No. 458 of 2018 (Annexure P-1) and was arrested on 1st May 2018. Thereafter, the petitioner was granted the concession of bail and after presentation of challan, the charge under Section 160 of IPC was framed against the present petitioner. Learned counsel further submits that, in fact, the petitioner was wrongly informed by the counsel that there was no requirement for him to come to the Court personally and he would inform him in case his presence is required at the time of trial. Thereafter, the petitioner had left India and was residing abroad. On the other hand, summons/warrants were issued by the trial Court for the service of the petitioner. However, neither the summons nor the warrants could be served on the petitioner. Learned counsel further submits that vide order dated 04.03.2023 (Annexure P-4), the proclamation was ordered to be issued against the petitioner requiring him to appear before the trial Court on or before 13th September 2023. In compliance of the order dated 04.03.2023 (Annexure P-4), Constable Suresh Sharma, i.e., the serving official, had published the proclamation on 25th March 2023 and his statement dated 2nd August 2023 in this regard has been reproduced below:-
“Statement: - Ct. Suresh Sharma, No. 317 KNL ON SA Stated that the present complaint, accused Neeraj could not be found at his house despite repeated raids. One copy of the proclamation was affixed at a public place outside the house of the accused on 25.03.2023. The second copy was affixed outside the Court, while the third copy was produced before the learned court”.
Learned counsel for the petitioner further submits that from the bare perusal of the statement made by Constable Suresh Sharma, it is apparent that the proclamation was not read publicly in some conspicuous place in the village of the petitioner and the statutory provisions of Section 82 Cr.P.C. was not followed by him. She further contends that vide the impugned order dated 13.09.2023 (Annexure P-7), the petitioner was wrongly declared as a proclaimed person.
On the other hand, learned State counsel has vehemently opposed the submissions made by learned counsel for the petitioner on the grounds that the petitioner had intentionally not appeared before the trial Court and the petition deserves to be dismissed by this Court. However, he is not in a position to controvert the factual submissions made by learned counsel for the petitioner.
Section 82 of the Code of Criminal Procedure provides for the procedure for publication of proclamation for the persons absconding and the relevant extract has been reproduced below:-
“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)XXX XXX XXX (4) XXX XXX XXX (5) XXX XXX XXX
It is apparent from the provisions of Section 82(2)(i)(a) that the proclamation has to be publicly read in some conspicuous place of the town or the village in which such person ordinarily resides. In the present case, it is apparent from the statement of serving official (Annexure P-6) that he had not read the proclamation in a conspicuous place in the village of the present petitioner and, thus, the mandatory procedure had been overlooked. Even, while declaring the petitioner as proclaimed person, the trial Court had failed to appreciate that the proclamation was not published in accordance with law. Thus, the impugned order dated 13.09.2023 (Annexure P-7) passed by the Court of Additional Chief Judicial Magistrate, Karnal, is ordered to be quashed qua the petitioner only.
Since, the trial is still stated to be pending before the trial Court, the petitioner is directed to surrender before the trial Court within a period of six weeks from today and on his appearance he shall be admitted to bail on his furnishing bail bonds and surety bonds to the satisfaction of the trial Court/Duty Magistrate/CJM concerned.
In case, the petitioner does not surrender before the trial Court, as mentioned above, the present petition shall be deemed to be dismissed.
The petition stands allowed in the above terms.
All pending applications, if any, are disposed off, accordingly.
23.09.2026 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No