AI Structured Summary
Not yet generated for this judgment
Judgment
VIKRAM AGGARWAL, J (Oral).
The present petition instituted under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, assails the order dated 22.12.2025 (Annexure P.9) passed by the Court of Judicial Magistrate, Ist Class, Moga, whereby the petitioner was declared a proclaimed offender.
The facts, as emanating from the paper book, are that on a complaint submitted by one Lovepreet Singh, FIR No.4 dated 03.01.2024 was registered under Section 379-B IPC (Section 379-B was deleted later on and Sections 217, 240, 316 BNS were added) at Police Station Dharmkot, District Moga, against two unknown persons. During investigation Jaskaran Singh and Nikka Singh, were arraigned as accused in the said FIR. It was further found that the real name of accused Nikka Singh was Nirvair Singh @ Nikka Singh. The Police raided the house of said Nirvair Singh @ Nikka Singh, but he could not be apprehended.
Final report was filed on 28.03.2025, whereafter, non-bailable warrants were issued to secure the presence of accused-Nirvair Singh @ Nikka. As the said non-bailable warrants were received back unexecuted, the trial Court initiated proclaimation against the accused vide order dated 07.11.2025. Thereafter, vide order dated 22.12.2025, the trial Court declared the petitioner a proclaimed offender.
Learned counsel for the petitioner submits that the order vide which the petitioner was declared a proclaimed offender is not sustainable, for, at no point of time, was the petitioner served. It is further submitted that as a matter of fact, non-bailable warrants had been issued in the name of Nirvair Singh @ Nikka Singh son of Bhura Singh, whereas the name of the petitioner is Nirwail Singh son of Balvir Singh. In support of said contention, learned counsel has referred to Annexure P.1 i.e. copy of the Aadhar Card of the petitioner. Learned counsel further submits that even the order issuing proclamation under Section 82 Cr.P.C., was not passed in accordance with law.
Learned counsel for the petitioner submits that the petitioner is willing to surrender before the trial Court, but apprehends that since he has been declared a proclaimed offender, the moment he surrenders, he would be taken into custody.
Notice of motion.
Mr. Ravinder Singh, DAG, Punjab, accepts notice on behalf of the respondent.
I have considered the submissions made by learned counsel the petitioner.
Concededly, non-bailable warrants were issued against accused Nirvair Singh. On 07.11.2025, the trial Court passed the following order:-
“Today, case was fixed for service of accused Nirvair Singh on issuance of NBW. Non bailable warrants issued to said accused received back unexecuted. As such, this court has sufficient grounds to believe that the said accused is intentionally concealing his presence to evade the process of court. Further coercive methods are required to be adopted against him. Let, accused Nirvair Singh be summoned through fresh proclamation requiring him to appear in the court on 22.12.2025 at 10.00 AM. The proclamation be published upto 17.11.2025 requiring the accused to appear before this court on 22.12.2025.”
Thereafter, on 17.11.2025, the following order was passed:-
“Today, case was fixed for awaiting proclamation of accused Nirvair Singh. Proclamation issued against accused Nirvair Singh received back duly effected on 16.11.2025. Today statement of SCT Jagjit Singh No.1136/Moga has been recorded in this regard. Now, case is adjourned to date already fixed for awaiting presence of accused i.e. 22.12.2025.
Eventually, on 22.12.2025, the petitioner was declared a proclaimed offender.
Before proceeding to examine the legality of the impugned order, it would be apposite to refer to the statutory provisions and the law on the subject.
Section 82 Cr.P.C lays down 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).”
In the case of Sonu Vs. State of Haryana, 2021(1) RCR (Criminal) 319, a coordinate Bench, while examining Section 82 Cr.P.C, summarised the essential requirements for issuance and publication of proclamation against an absconder and declaring him a proclaimed person/offender;
“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 Bishundayal Mahton 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 noncompliance 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.”
Clearly, while summarising the requirements, the coordinate Bench referred to almost the entire law on the subject. Still further, there can be no gainsaying the fact that the provisions of Section 82 Cr.P.C. are required to be complied with scrupulously.
It, therefore, emerges that prior to the issuance of a proclamation under Section 82 Cr.P.C, the Court concerned would be required to record its satisfaction that the accused, against whom such a proclamation was sought to be issued was absconding or was concealing himself/herself with an intention to evade arrest. This satisfaction is required to be recorded by a Court initiating proceedings under Section 82 Cr.P.C on account of the grave civil and criminal ramifications that the provision has qua the rights of an accused.
Reverting to the facts of the case in hand, if the order initiating proceedings under Section 82 Cr.P.C. is tested on the touchstone of the principles summarized by the Coordinate Bench, this Court finds the same to be unsustainable. No satisfaction was recorded by the trial Court that it had reason(s) to believe that the accused had absconded or concealed himself/herself so that the warrants could not be executed. Instead, the Court only noticed in the order dated 07.11.2025 that in view of non-bailable warrants having been received back unexecuted, the Court had sufficient grounds to believe that the accused was intentionally concealing his presence to evade the process of Court. Still further, a perusal of the zimni orders passed by the trial Court shows that non-bailable warrants were issued to the accused named Nirvair Singh @ Nikka Singh son of Bhura Singh, whereas the name of the petitioner is Nirwail Singh son of Balbir Singh.
In view of the above, the order dated 22.12.2025 (Annexure P.9) is found to be unsustainable and is set aside.
If the petitioner surrenders before the trial Court within a period of 30 days from today and moves an application for bail, the same be decided expeditiously, in accordance with law. However, in case, the petitioner does not appear, which may be an eventuality as he may be interested in only getting the order declaring him a proclaimed offender set aside, the present petition shall be deemed to have been dismissed. The Court is impelled to pass this order because now the petitioner has knowledge of the proceedings and has given an undertaking to surrender before the trial Court. No one should be permitted to misuse the process of law by assailing an order on technical grounds and then taking undue advantage of the said order having been set aside, which will tantamount to frustrating the proceedings before the trial Court. A Court is expected to balance the equities and in order to achieve that, this Court deems it appropriate to pass the instant order.
The petition is accordingly disposed of in the above terms.