Punjab-Haryana High Court
Manjit Kaur Dhami vs State Of Punjab And Anr on 30 April, 2013
Crl. Misc. No.M- 197 of 2013
1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Crl.Misc.No.M-197 of 2013
Date of Decision:30.04.2013
Manjit Kaur Dhami ... Petitioner
vs.
State of Punjab and anr. ... Respondents
CORAM:HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present:- Mr. Mansur Ali, Advocate
for the petitioner.
Ms. Shivali, AAG, Punjab
for the respondent-State.
Mr. Raghubir Tejpal, Advocate for
Mr. Palwinder Singh, Advocate
for respondent no.2.
VIJENDER SINGH MALIK,J.
Manjit Kaur Dhami, the petitioner has brought this petition under the provisions of section 482 Cr.P.C. for quashing the order dated 02.02.2008(Annexure P-3) passed by learned Chief Judicial Magistrate, Nawanshahr in criminal complaint No.102/1/99, under section 494 read with section 34 IPC.
Learned counsel for the petitioner has contended that Crl. Misc. No.M- 197 of 2013 2 the petitioner was never served in the complaint. According to him, when the summons were sent to the petitioner, he was not there in India and was not served with any kind of notice of the case. He has further submitted that on the basis of the order dated 24.12.2007 proclamation under section 82 Cr.P.C. was ordered to be issued and although section 494 IPC does not fall within the provisions of section 82(2) Cr.P.C., yet the petitioner has been declared a proclaimed offender.
Learned counsel for the petitioner has further submitted that Balihar Dhami, a co-accused of the petitioner had been similarly declared a proclaimed offender and he filed Crl. Misc. No.M-7249 of 2011 and the order declaring him proclaimed offender has been set aside vide order dated 09.03.2011 by this court.
Learned State counsel assisted by Mr. Raghubir Tejpal, Advocate for Mr. Palwinder Singh, Advocate for respondent no.2 has opposed the prayer. According to her, the petitioner has been rightly declared a proclaimed offender and that he cannot take benefit of the order dated 09.03.2011 passed in the matter of Balihar Dhami.
The order dated 24.12.2007 passed by learned Chief Judicial Magistrate, Nawanshahr makes the facts very clear. The order is in the following terms:-
Crl. Misc. No.M- 197 of 2013 3 "An application for exemption from personal appearance of complainant is allowed for today only in view of the reasons mentioned therein. Summons in respect of remaining accused i.e. Balihar Singh, Mohinder Kaur and Manjit Kaur received back with the report of gone abroad. In view of the attending circumstances on being satisfied that the presence of these accused cannot be secured in an ordinary manner, proclamation in terms of section 82 Cr.P.C. in respect of these accused be issued for 04.01.2008."
The aforesaid order clearly shows that even warrant of arrest had not been issued against the petitioner. Under section 82 Cr.P.C., the stage of issuance of proclamation arises after issuance of warrant of arrest. It is laid down in section 82 Cr.P.C. that the court may publish a written proclamation requiring an accused to appear at a specific place, specified time etc. if the court has reason to believe that the accused against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed. Before the stage of issuance of warrant and return thereof, there is no stage of issuance of proclamation under section 82 Cr.P.C. Preceding the order dated 24.12.2007 only summons had been issued for appearance of the petitioner Crl. Misc. No.M- 197 of 2013 4 Manjit Kaur and Balihar Singh with regard to whom order dated 09.03.2011 was passed in the above mentioned criminal miscellaneous petition.
On summons it was reported that the petitioner has gone abroad. The court from the attending circumstances found itself satisfied that the presence of these accused cannot be secured in an ordinary manner. Therefore, proclamation under section 82 Cr.P.C. was ordered to be issued. When it had come on the summons that the petitioner had gone abroad, there was no circumstance on the strength of which it could be concluded that presence of that person could not be secured in an ordinary manner. No effort was made by the court to ask the address of the petitioner of the foreign country where process could be sent to him. The process never reached the petitioner and she had no occasion to conceal herself. Even the warrant of arrest had still not been issued for securing the presence of the petitioner. In these circumstances the order dated 24.12.2007 switching to proclamation under section 82 Cr.P.C is itself bad and the order dated 2.2.2008 declaring the petitioner a proclaimed offender made on the basis of these circumstances cannot be said to be anything but bad.
Crl. Misc. No.M- 197 of 2013 5 Accordingly, I accept the petition and set aside the impugned order. The petitioner has already appeared before the trial court in pursuance of the order dated 14.01.2013 and has been granted interim bail. The said order is also made absolute.
April 30,2013 (VIJENDER SINGH MALIK ) dinesh JUDGE