Punjab-Haryana High Court
Sukhchain Chand vs State Of Punjab And Anr on 4 May, 2023
Neutral Citation No:=2023:PHHC:064466
2023:PHHC:064466
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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110+245 CRM-M-6523-2022 (O&M)
Date of Decision:04.05.2023
Sukhchain Chand .....Petitioner
Vs.
State of Punjab and Another .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present: Mr. Vivek K. Thakur, Advocate
for the petitioner.
Mr. Gurpreet Singh Shergill, AAG, Punjab.
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DEEPAK GUPTA, J. (ORAL)
CRM-19948-2023:
This is an application under Section 482 Cr.P.C. to place on record the order dated 17.07.2015 and 01.08.2015 passed by learned Judicial Magistrate 1st Class as Annexure P-5 and Annexure P-6.
2. Allowed as prayed for.
3. Annexure P-5 and Annexure P-6 are taken on record. CRM-M-6523-2022:
4. Prayer in this petition filed under Section 482 Cr.P.C. is for quashing of F.I.R. No.232 dated 07.12.2015 registered under Section 174-A of the IPC registered at Police Station Navi Baradari, District Jalandhar City and all subsequent proceedings arising therefrom including report under Section 173(8) Cr.P.C. and the order dated 31.08.2015 passed by JMIC, Jalandhar in case No.NACT-81 of 07.01.2015 titled as 'Avtar Singh Vs. Sukhchain Singh'.
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5. Aforesaid complaint No.NACT-81 of 2015 was filed to prosecute petitioner under Section 138 of the Negotiable Instruments Act, in which he was declared proclaimed person vide order dated 31.08.2015 (Annexure P-2). Consequent to the said order FIR No.232 dated 07.12.2015 under Section 174-A of the IPC was registered at Police Station Navi Baradari, District Jalandhar City.
6. Learned counsel for the petitioner contends that he has been wrongly declared as proclaimed person in violation of provision of Section 82 Cr.P.C. Learned counsel has drawn attention towards order dated 17.07.2015 (Annexure P-5) whereby, after noticing that warrants of arrest issued against petitioner were received back unexecuted, presence of the petitioner was directed to be procured through proclamation for 01.08.2015. Annexure P-6 is the order dated 01.08.2015 as per which proclamation issued against the petitioner was received back duly effected with the report that he had been served through proclamation on 30.07.2015. However, matter was adjourned to 31.08.2015 and then by way of the impugned order, petitioner was declared proclaimed person on 31.08.2015.
7. Learned counsel for the petitioner submits that on 01.08.2015 when the proclamation was received back effected for 01.08.2015, the period of 30 days had not elapsed for appearance/surrender of the petitioner; whereas no proclamation was issued for 31.08.2015 on which date, petitioner was declared 2 of 7 ::: Downloaded on - 09-05-2023 22:07:48 ::: Neutral Citation No:=2023:PHHC:064466 2023:PHHC:064466 CRM-M-6523-2022 (O&M) 3 proclaimed person.
8. Section 82 of the Cr.P.C., which provides for publication of proclamation against person absconding, reads 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 section 3 of 7 ::: Downloaded on - 09-05-2023 22:07:48 ::: Neutral Citation No:=2023:PHHC:064466 2023:PHHC:064466 CRM-M-6523-2022 (O&M) 4 302, 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 subsection (1)."
9. In Sonu Vs. State of Haryana - 2021(1) RCR (Criminal) 319, a co-ordinate Bench of this court has summarized the law on the procedure prescribed under Section 82 Cr.P.C., for declaring the person as proclaimed offender. It was held as under: -
"The essential requirements of Section 82 of the Cr.P.C. 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 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, 4 of 7 ::: Downloaded on - 09-05-2023 22:07:48 ::: Neutral Citation No:=2023:PHHC:064466 2023:PHHC:064466 CRM-M-6523-2022 (O&M) 5 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 and publication of the proclamation. (See Gurappa Gugal and others Vs. State of Mysore: 1969 CriLJ 826 and Shokat Ali Vs. State of Haryana: 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&H): 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 5 of 7 ::: Downloaded on - 09-05-2023 22:07:48 ::: Neutral Citation No:=2023:PHHC:064466 2023:PHHC:064466 CRM-M-6523-2022 (O&M) 6 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 5 of 8 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)."
10. Besides, it is the requirement of law that proclamation should be published for that date, on which the person concerned is required to put in appearance/surrender before the Court and on his failure to do so, he is declared a proclaimed person/offender. That date of his appearance/surrender should not be less than 30 days from the date of publication of the proclamation.
11. In the present case, as is evident from the various orders of 6 of 7 ::: Downloaded on - 09-05-2023 22:07:48 ::: Neutral Citation No:=2023:PHHC:064466 2023:PHHC:064466 CRM-M-6523-2022 (O&M) 7 trial Court, there was no proclamation for 31.08.2015 on which date the petitioner was declared proclaimed person, whereas on 01.08.2015, for which date, the proclamation was published, 30 days period had not elapsed from the date of publication which was made on 30.07.2015. Thus there is a clear violation of Section 82 Cr.P.C.
12. Considering the fact that in the present case, petitioner has been declared proclaimed person clearly in violation of Section 82 Cr.P.C. and despite the fact that there was no proclamation for 31.08.2015, and also having regard to the legal position discussed above, the present petition is hereby accepted and F.I.R. No.232 dated 07.12.2015 registered under Section 174-A of the IPC registered at Police Station Navi Baradari, District Jalandhar City and all subsequent proceedings arising therefrom including report under Section 173(8) Cr.P.C. and the order dated 31.08.2015 passed by JMIC, Jalandhar in case No.NACT-81 of 07.01.2015 titled as 'Avtar Singh Vs. Sukhchain Singh' are quashed.
May 04, 2023 ( DEEPAK GUPTA )
Neetika Tuteja JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
Neutral Citation No:=2023:PHHC:064466
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