Gujarat High Court
Dharmesh Maganbhai Ramani Through ... vs State Of Gujarat on 2 May, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1296 of 2023
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SPECIAL CRIMINAL APPLICATION NO. 1296 of 2023
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 2 of 2023
In
R/SPECIAL CRIMINAL APPLICATION NO. 1296 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHARMESH MAGANBHAI RAMANI THROUGH NILESH MAGANBHAI
RAMANI
Versus
STATE OF GUJARAT
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APPEARANCE IN R/SPECIAL CRIMINAL APPLICATION NO. 1296 of 2023 :
SENIOR ADVOCATE MR. N. D. NANAVATY WITH MR. PRERAK P
OZA(8279) for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MS M. H. BHATT, APP
for the Respondent(s) No. 1
APPEARANCE IN CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of
2023 IN R/SPECIAL CRIMINAL APPLICATION NO. 1296 of 2023 :
SENIOR ADVOCATE MR. N. D. NANAVATY WITH MR. PRERAK P
OZA(8279) for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MS M. H. BHATT, APP for the
Page 1 of 16
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NEUTRAL CITATION
R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023
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Respondent(s) No. 1
APPEARANCE IN CRIMINAL MISC.APPLICATION (FOR STAY) NO.2 of
2023 IN R/SPECIAL CRIMINAL APPLICATION NO. 1296 of 2023 :
SENIOR ADVOCATE MR. Y. S. LAKHANI WITH MR. K. M. AMIN for the
Applicant(s) No. 1
SENIOR ADVOCATE MR. N. D. NANAVATY WITH MR. PRERAK P OZA(8279) for
the Respondent (s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MS M. H. BHATT, APP for the
Respondent(s) No.2
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 02/05/2023
ORAL JUDGMENT
1. This petition is directed against the order dated 23.12.2022 passed by the learned Additional Civil Judge and Judicial Magistrate First Class, Ahmedabad (Rural) at Mirzapur in Criminal Case No.14986 of 2022, by which proclamation as contemplated under section 82 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') is being issued at the instance of the complainant. The petitioner has also questioned the legality and propriety of the warrant issued under section 70 of the Code by filing Special Criminal Application No.12548 of 2021, which is also pending before this Court.
2. The facts of the present case in brief are as under:
Page 2 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined 2.1 That complaint is lodged by the complainant for the offences punishable U/ss. 406, 409, 420, 467, 468, 477 and 120-B of the Indian Penal Code dtd 7.3.2020, wherein, the Ld. Court of 1st Addl. J.M.F.C., Ahmedabad [Rural] vide order dtd. 9.3.2020 has registered the application as Criminal Inquiry No. 54 of 2020. Later on, the Ld. Court of 1st Addl.
J.M.F.C., Ahmedabad [Rural] at Mirzapur vide his order dtd. 10.7.2020 granted the application filed U/s. 156 [3] of the Cr.P.C. and directed the Police Inspector of Nikol Police Station to ensure the proper investigation and register the F.I.R. According to that, Nikol Police Station has registered the F.I.R. and started the investigation, wherein, the Police Inspector of Nikol Police Station has applied for the Non Bailable Warrant U/s.70 of the Code against the Accused petitioner accused No.4- Dharmesh Maganbhai Ramani as he has left the Country and settled in U.S.A., and urged that for the arrest of the said accused, the red corner notice is to be issued, for which, warrant U/s.70 of the Code is primarily required and further for the procedure of proclamation U/ss. 82 & 83 of the Code and warrant U/s. 70 of the Code is also required Page 3 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined and therefore, submitted the application for issuing the warrant U/s. 70 of the Code. The said application was rejected by the learned Magistrate vide order dated 25.06.2021. The Investigating agency filed a revision application before the learned Sessions Court, Ahmedabad against the order of rejection for issuance of warrant under section 70 of the Code, the learned Sessions Court, Ahmedabad granted the said Criminal Revision Application by virtue of order dated 22.11.2021.
2.2 Being aggrieved by the order passed by the learned Sessions Court, Ahmedabad, the petitioner has preferred Special Criminal Application No.12548 of 2021 before this Court, wherein the High Court has issued notice on 22.12.2021. Pending the said application before this Court, the Investigating Agency has filed an application under section 82 of the Code for issuance of proclamation against the present petitioner. Thereafter, the police has submitted a final report under section 173 of the Code. Thereafter, the learned Additional Civil Judge and Judicial Magistrate First Class, Ahmedabad passed an impugned order on 23.12.2022 under section 82 of the Code. Hence, the petitioner Page 4 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined has filed the present petition.
3. Learned Senior Advocate Mr.N. D. Nanavaty appearing with learned Advocate Mr.Prerak Oza for the petitioner submitted that the learned Magistrate has committed grave error in passing the impugned orderS against the petitioner under section 82 of the Code. He also submitted that the learned Magistrate committed grave error in believing that the petitioner is absconding and by passing the order of proclamation under section 82 of the Code. The learned Magistrate has failed to consider that the order under section 70 of the Code was already challenged by the petitioner before this Court and the same is till date pending for its final adjudication and therefore, there is no reason to believe that the petitioner is absconding and evading arrest. He also submitted that the learned Court before passing impugned order ought to consider the fact that the accused has not left the permanent residence and he is at present in USA and not avoiding service of the warrant, on the contrary, the investigating agency has failed to show what attempts are made by the petitioner to see that the warrant is served upon him. Therefore, the learned Page 5 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined Magistrate should not have passed the impugned order in a mechanical manner, which is perverse and liable to be quashed and set aside.
4. Learned APP Ms. M. H. Bhatt appearing for the Respondent-State submitted that complaint is lodged by the complainant against the present petitioner and other accused persons, wherein, the J.M.F.C., Ahmedabad [Rural] vide order dtd. 9.3.2020 has registered the application as Criminal Inquiry No. 54 of 2020 and later on granted the application filed U/s. 156 [3] of the Code and directed the Police Inspector of Nikol Police Station to ensure the proper investigation and register the F.I.R. The Police Inspector, Nikol Police Station has registered the F.I.R. and started the investigation, wherein, he has applied for the Non Bailable Warrant U/s.70 of the Code against petitioner accused No.4- Dharmesh Maganbhai Ramani as he has left the Country and settled in U.S.A., and urged that for the arrest of the said accused and submitted an application for issuing the warrant U/s. 70 of the Code. The said application was rejected by the learned Magistrate vide order dated 25.06.2021. The Investigating agency filed a revision application before the learned Page 6 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined Sessions Court, Ahmedabad and till the date the presence of the present petitioner is not secured by the investigating agency and therefore, the impugned order is passed. Hence, she urged that the present petition may be dismissed as the presence of the present petitioner is very much required in the investigation of present offence.
5. At this stage, the provision of section 82 of the Code is required to be referred, which 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 specific 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 home-stead 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 Page 7 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined 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 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)."
6. The Section 82 is a penal clause, making the accused susceptible to punishment under Section 174-A of IPC. In this backdrop the procedure enacted under Section 82 has to be followed strictly. When violation of any procedure of law attracts a penal provision (herein declaration as proclaimed offender), Page 8 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined the procedure, which seeks to declare him an offender, has to be strictly followed and cannot be relaxed. When violation of any procedure of law attracts a penal provision (herein declaration as proclaimed offender), the procedure, which seeks to declare him an offender, has to be strictly followed and cannot be relaxed. This penal provision makes compliance of Section 82(3) of the Code mandatory in nature. In this situation also, from the records of the case, the Court has derive the aforesaid satisfaction. Non- recording of subjective satisfaction in the order will make the order bad and a non- speaking one. A non-speaking order involving a procedure, which attracts a penal offence (if the order is not complied with), cannot sustain in the eyes of law.
7. The provisions of Section 82 of the Code of Criminal Procedure are to be strictly construed and to be followed as it affects the personal liberty of a citizen. Section 82 Cr. P. C consists of three sub-sections. Sub- section (1) provides for issuance of proclamation, whereas, sub-sections (2) & (3) deal with the procedure to be adopted for publication of proclamation directed to be Page 9 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined issued in consequences of an order passed under sub-section (1).
8. The provisions of sub-section (2) as to publishing of proclamation are to be strictly complied with. All the three modes prescribed by this sub-section must be adopted. The provisions of sub-section (2) of Section 82 Cr. P. C are imperative.
9. The non-conformance of Section 82 (1) and (2) of Criminal Procedure Code established by law within the meaning of Article 2 of the Constitution of India, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
10. Further, sub-section (1) of Section 82 of the Code provides that the Court has to publish the written proclamation requiring the person to appear on a specified date and specified place not less than 30 days from the date of such publication. Thus, it is the duty of the Court to mention the specific place and the date where the person needs to present himself in compliance of the proclamation order. This Page 10 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined date and place should be mentioned in the order itself.
11. Form IV, which is part of Second Schedule of Code is the form in which proclamation is required to be issued. The said form provides for mentioning the place and date, for the person to appear in compliance of the order. This is a statutory form. This form is filled by the Office of the Court. Thus, the date and place, which is mentioned in the said form must also be reflected in the order-sheet. This will mean that the Court has fixed the place, time and the date and not the Bench Clerks or the Office Clerks, as it is the mandate of the law that the Court has to fix the place, time and the date of appearance. The Form IV, which is a statutory form, must be scrupulously followed and filled up as per the date, time, place fixed by the Court, which should be reflected in the order-sheet.
12. The Hon'ble Supreme Court, in the context of service of summons under the Civil Procedure Code, 1908, in the case of Auto Cars v/s. Trimurti Cargo Movers Pvt. Ltd. & Ors., (2018) 15 SCC 166, held that any non-compliance with the statutory requirements regarding Page 11 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined mentioning of the specific "day, date, year and time" would amount to material infirmity rendering summons as well as their service bad in law and consequently cannot be held to be duly served.
13. Another aspect which has to be taken note of, is that the the Hon'ble Supreme Court in the case of State of Madhya Pradesh v/s. Pradeep Sharma, (2014) 2 SCC 171, after relying on other Judgments, has held that if a person is declared as proclaimed offender / absconder in terms of Section 82 of the Code, he is not entitled for relief of anticipatory bail.
14. Therefore, in this regard, it is necessary to refer to judgment of the High Court of Panjab and Haryana in the case of Smt. Deeksha Puri Vs. State of Haryana, in CRM M-359 of 2012, wherein the High Court of Panjab and Haryana has held as under:-
"Offender' is a person who is alleged to have committed offence as per definition of "offence" in Section 2 (n) of Cr.P.C. i.e. committed any act or omission made punishable by any law for the time being in force .
"Proclaimed Offender" would be any offender who has suffered declaration after proclamation under Section 82 (1) or Section 82 (4) Cr.P.C. according to Section 82 (2), (3) and Section 82 (5) Cr.P.C.Page 12 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023
NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined A conjoint reading of sub-section 82 (4) Cr.P.C. with other sub- sections clarifies that "A statement in writing" by a Court issuing the proclamation to the effect that proclamation was duly published on specified day in the manner specified in clause (i) of Sub-Section 2 of Section 84 Cr.P.C. shall be "conclusive evidence" that requirement of Section 82 (1) and (2) Cr.P.C. have been complied with and that the proclamation was published on such day. But in case publication under Section 82 (1) Cr.P.C. is in respect of a proclaimed person accused of specified offences mentioned in Section 82 (4) Cr.P.C., it would be imperative for a Court to make an enquiry as it thinks fit for its satisfaction that an accused of any of the offences mentioned in Section 82 (4) Cr.P.C. has failed to appear at specified place and time required by the publication under Section 82(10) and (2) Cr.P.C. That enquiry need not be a detailed enquiry but should be limited to the expression of opinion that Court is satisfied that the accused is absconding or concealing himself to avoid execution of warrants and that after proper publication of proclamation as per Sections 82 (2) (i) or (ii)Cr.P.C., has failed to appear at specified place and time after notice of thirty days. This safeguard is provided because stringent punishment is provided in Section 174 A Part II IPC.
But if a person is alleged to be offender under any other Section of IPC of any other law and has absconded by avoiding execution of warrants or proclamation he would be liable to lesser punishment under Section 174 A Part I IPC after publication of proclamation under Section 82 CRM M-359 of 2012 [49] (1) Cr.P.C. in manner mentioned in Section 82 (2) Cr.P.C. after statement in writing under Section 82 (3) Cr.P.C.
Section 82 (4) Cr.P.C. cannot be construed to hold that absconders not falling under Section 82 (4) Cr.P.C. cannot be declared proclaimed offenders or that they are not subject to the penalties and liabilities enshrined under law. The absconder not falling under Section 82 (4) Cr.P.C. are liable under Section 174A Part 1 IPC and absconders Page 13 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined under Section 82 (4) Cr.P.C. are liable under Section 174 A Part II IPC after publishing of proclamation.
In view of above, it is held that provisions of Section 82 (4) Cr.P.C. incorporated by amendment of Act No.25 of 2005 do not lay down that the persons accused of having committed offences mentioned under Section 82 (4) Cr.P.C. can only be declared a proclaimed offender. It is further held that any person who has been declared a proclaimed person under Section 82 (1) Cr.P.C. or under Section 82 (4) Cr.P.C. will be at par for the purpose of all the liabilities and consequences attached to a person declared proclaimed offender.
It is further clarified that order of declaring a persons a proclaimed offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the sections mentioned in Section 82 (4) Cr.P.C. This judgment, however, will not effect the rights of a proclaimed offender to challenge the proceedings of declaring him a proclaimed offender if statutory violation of any of the CRM M-359 of 2012 [50] provisions of issuance of warrant or proclamation is established in individual cases."
15. Therefore, as per the aforesaid provision of section 82 of the Code, when any person against whom a warrant has been issued by any Court, it has reason to believe that such person has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear before the Court In the present case, when the warrant under section 70 has been issued against the present petitioner, however, the present petitioner is Page 14 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined settled in USA and therefore, the said warrant cannot be served to him and as it appears from the record that the petitioner is evading his arrest in the present case, the learned JMFC Court has issued proclamation under section 82 of the Code, which is challenged by the petitioner by way of present petition.
16. Thus, in the case on hand it appears that after registration of FIR, the Investigating Officer has completed the investigation qua other accused and petitioner is shown in column no.2 as absconder so investigation is pending qua present petitioner. After completion of Investigating Officer comes to the conclusion that some sections are required to be deleted or some sections are required to be added in the charge-sheet papers as per the evidence collected by the Investigating Officer. Thus, it also appears that the prosecution has followed the procedure or requirement under section 82 of the Code.
17. Having heard learned advocates for the respective parties and in view of the aforesaid discussion and considering the documents on record as well as averments made in the present petition, this Court is not Page 15 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023 NEUTRAL CITATION R/SCR.A/1296/2023 JUDGMENT DATED: 02/05/2023 undefined inclined to interfere with the impugned order and is in complete agreement with the findings and the conclusion arrived at, which does not call for any interference. Hence, the present petition being devoid of merits deserves to be dismissed and accordingly stands dismissed.
ORDER IN CR.MA NO.1 OF 2023 In view of the order dated 02.05.2023 passed in Special Criminal Application No.1296 of 2023, present Criminal Misc. Application does not survive and accordingly stands disposed of.
ORDER IN CR.MA NO.2 OF 2023 In view of the order dated 02.05.2023 passed in Special Criminal Application No.1296 of 2023, present Criminal Misc. Application does not survive and accordingly stands disposed of.
Sd/-
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 16 of 16 Downloaded on : Sat Sep 16 19:03:47 IST 2023