Himachal Pradesh High Court
State Of H.P. vs . Sudhir Urao & Ors. on 23 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
State of H.P. vs. Sudhir Urao & Ors.
Cr. A. No. 612 of 2015 23.08.2023 Present: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.Gs. with .
Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy. A.G., for the appellant.
Mr. Manoj Pathak, Advocate, for respondent No. 1.
Cr.MP No. 2596 of 2023 By medium of this application filed under Section 82 of Cr.PC. a prayer has been made to issue proclamation requiring respondent No. 2 to appear before this Court. It has been rt averred that in compliance to the order passed by this Court from time to time for the service of respondent No. 2, extensive efforts were made to find the whereabouts of respondent No. 2 by deputing special teams to search out respondent No. 2 in the State of Jharkhand and all necessary directions were also issued to all the District Superintendents of Police in the State of Himachal Pradesh by the Police Department, but despite sincere efforts, non-bailable warrants have been received back un-executed. It has further been averred that despite repeated non-bailable warrants that were issued against respondent No. 2 by this Court, the accused person could not be traced out at the given address neither at his native place nor in the jurisdiction of Himachal Pradesh.
2. It has, thus, become evident that respondent No. 2 is either absconding or concealing himself to avoid the process being issued by this Court.
3. A learned Single Judge of the Punjab and Haryana High Court in Sonu vs. State of Haryana - 2021 (1) RCR (Criminal) 319, has eloquently summarised the law on the ::: Downloaded on - 24/08/2023 20:35:15 :::CIS -2- procedure prescribed under Section 82 Cr.P.C. for declaring a person as proclaimed offender, wherein 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 of 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 rt 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, 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 proclamation and the specified date of hearing is less than thirty days, the accused cannot be declared a proclaimed ::: Downloaded on - 24/08/2023 20:35:15 :::CIS -3- 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 of 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 rt 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 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 statement in writing by the Court is ::: Downloaded on - 24/08/2023 20:35:15 :::CIS -4- 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).
(ix) The conditions specified in Section 82(2) of the Cr.P.C. for the publication of a Proclamation against an absconder are mandatory. Any non-compliance therewith cannot be cured as an 'irregularity' and renders the Proclamation and of 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 rt
318).
(x) The conditions specified in Section 82(2) of the Cr.P.C. for the publication of a Proclamation against 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 Debut vs. State of U.P. and another:
1994 CriLJ 1783 and Pal Singh vs. The State: 1955 CriLJ
318).
4. We have gone through the report submitted by the police department through the Inspector General of Police from time to time, reveals that despite extensive and detailed inquiry and search, the whereabouts of respondent No. 2 could not be ascertained. Thus, from the record, we are satisfied that respondent No. 2 has either absconded or is concealing himself to avoid the process issued against him from time to time.
5. In the give circumstances, we direct that proclamation be issued under Section 82 Cr.P.C. against respondent No. 2, in a manner detailed here-under, for appearance of respondent No. 2 before this Court:-
::: Downloaded on - 24/08/2023 20:35:15 :::CIS -5-i.) By publicly reading such proclamation in the main .
market of village Kachh-Para, P.O. Argi, P.S. Ghagra, Distt. Gumla;
ii.) By affixation on a conspicuous part of the panchayat office of the concerned Panchayat in which village Kachh-Para, P.O. Argi, P.S. Ghagra, Distt.
of Gumla, Jharkhand falls;
iii.) By affixation on the Notice Board of this Court as well as Notice Board of the Court of the learned rt Magistrate having jurisdiction of the aforesaid address.
6. The proclamation be issued in Form - IV appended to Second Schedule of the Code of Criminal Procedure.
7. List on 22.11.2023.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 23rd August, 2023 (sanjeev) ::: Downloaded on - 24/08/2023 20:35:15 :::CIS