Shivam Panjeta vs State of Haryana

The present petition has been instituted under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short the "BNSS"), assailing the order dated 20.04.2026 (Annexure P-14) vide which the petitioner was declared a proclaimed person in case FIR No.221 dated 10.06.2022 under Section 25 of the Arms Act, 1959 registered at Police Station Parao, Ambala Cantt., District Ambala (Annexure P-1).

Briefly stated, FIR No.221 dated 10.06.2022 was registered at Police Station Parao, Ambala Cantt., District Ambala under Section 25 of the Arms Act, 1959 (Annexure P-1). The allegation was that on the basis of a secret information, the petitioner was apprehended on 10.06.2022 and upon his search, he was found in possession of two country-made pistols (.32 bore and .30 bore). Four live cartridges were recovered from the .32 bore pistol, whereas the .30 bore country-made pistol was found to be empty.

Initially, the petitioner was released on bail vide order dated 27.06.2022 (Annexure P-2). However, since he did not appear on 06.09.2024, his bail was cancelled vide order dated 06.09.2024 (Annexure P-5) and warrants of arrest were ordered to be issued.

The petitioner surrendered before the Court on 25.11.2024 and moved an application for bail. However, the said application for bail was dismissed vide order dated 27.11.2024 (Annexure P-6). The petitioner then knocked the doors of this Court and he was granted regular bail by a Co-ordinate Bench vide order dated 14.01.2025 passed in CRM-M-61941-2024 (Annexure P-7).

After attending the trial for few dates, the petitioner again absented and his bail was again cancelled on 06.05.2025. Warrants of arrest were thereafter issued to procure his presence and ultimately he was declared a proclaimed person vide order dated 20.04.2026 (Annexure P-14).

Learned counsel for the petitioner submits that the said order is not sustainable since proceedings under Section 82 were initiated without following the due process as non-bailable warrants had been received back with the report that the petitioner was not present at home.

It has also been submitted that in the proclamation also, a wrong date was given and in the proclamation issued on 26.02.2026, the petitioner was called upon to appear on 02.03.2026, whereas the date fixed was 20.04.2026. Learned counsel submits that the petitioner is now willing to surrender again but since he has been declared a proclaimed person, he shall immediately be arrested.

Notice of motion.

Mr. Amit Sahni, Addl. A.G., Haryana, accepts notice on behalf of the respondent-State.

I have considered the submissions made by learned counsel for the parties.

The conduct of the petitioner is no doubt, not upto the mark. He absented from the proceedings twice. However, it has to be borne in mind that a person can be declared a proclaimed person only after following the due procedure as envisaged under Section 82 Cr.P.C. A perusal of the interlocutory order shows that the warrants of arrest being issued to procure his presence were not being received back served or otherwise. On 08.01.2026, the Court noticed that warrants of arrest had been received back with the report that he was not present at his house and was intentionally avoiding service. Under the circumstances, proceedings under Section 82 Cr.P.C. were initiated and proclamation was ordered to be issued for 21.02.2026. The executing Constable was directed to appear on 21.02.2026 regarding the publication and accused was directed to appear before the Court on 20.04.2026.

However, the proclamation (Annexure P-12) shows that it was issued on 26.02.2026 and next date was mentioned as 02.03.2025. In the body, the next date mentioned is 02.03.2026, whereas the date fixed was 20.04.2026. On 20.04.2026, it was noticed that proclamation had been effected on 25.02.2026 but the petitioner had not appeared. He could possibly not have appeared because the date given in the proclamation was 02.03.2026. The Court, therefore, erred in declaring the petitioner as a proclaimed person.

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:-

Proclamation for person absconding.

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.

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;

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;

a copy thereof shall be affixed to some conspicuous part of the court-house;

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.

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.

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.

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;

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:-

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).

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).

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).

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).

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).

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.

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).

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 impugned order dated 20.04.2026 (Annexure P-14), is tested on the touchstone of the principles of law referred to above and the statutory provisions, it is clearly found to be unsustainable and is accordingly set aside. However, this shall be subject to payment of Rs.25,000/- costs to be deposited with the concerned District Legal Services Authority. The costs are being imposed on account of the failure of the petitioner to appear before the Court concerned and absenting himself repeatedly.

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 person 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.

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