Punjab-Haryana High Court
Gian Kaur vs State Of Punjab And Anr on 28 April, 2021
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
132
CRM-M-17561-2021
Date of decision: 28.04.2021
Gian Kaur .....Petitioner
Versus
State of Punjab and another .....Respondents
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Amardeep Singh Gill, Advocate for the petitioner.
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ARUN KUMAR TYAGI, J (ORAL)
(The case has been taken up for hearing through video conferencing.) Petitioner-Gian Kaur has filed present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for quashing of order dated 31.01.2020 passed by learned Chief Judicial Magistrate, Kapurthala in case FIR No.17 dated 24.01.2018 registered under Section 420 of the Indian Penal Code, 1860 (for short 'the IPC') and Section 13 of the Punjab Prevention of Human Smuggling Act, 2012 in Police Station City Kapurthala, District Kapurthala, whereby the petitioner was declared proclaimed person under Section 82 of the Cr.P.C., and all consequential proceedings arising out of the same.
Briefly stated the facts relevant for disposal of present petition are that the above-said FIR was registered on complaint of Ravinder Singh. In his complaint Ravinder Singh alleged that petitioner-Gian Kaur along with her co-accused cheated and defrauded the complainant-Ravinder Singh and Davinder Singh for an amount of Rs.48,50,000/- on the pretext of sending them to Canada on work permit but neither they were sent to Canada nor their money was returned. In view of the complaint the above-said FIR was registered. On failure of the petitioner to appear before the Court despite publication of proclamation, the petitioner was declared proclaimed 1 of 7 ::: Downloaded on - 06-06-2021 09:43:02 ::: CRM-M-17561-2021 -2- person vide order dated 31.01.2020.
Feeling aggrieved from the above-said order the petitioner has filed the present petition for quashing of the same along with all consequential proceedings arising therefrom.
Pursuant to supply of advance notice, Mr. P.S. Walia, Asstt. A.G. Punjab has appeared and opposed the petition. However, no reply has been filed by respondent-State.
In view of the facts and circumstances of the case issuance of notice to respondent No.2-complainant is considered to be unnecessary and is accordingly dispensed with.
I have heard learned Counsel for the petitioner and learned State Counsel and have gone through the record.
Learned Counsel for the petitioner has submitted that the petitioner was wrongly declared proclaimed person vide order dated 31.01.2020 in breach of the prescribed procedure. The petitioner was not given 30 days time for his appearance before the Court. Therefore, the impugned order and all subsequent proceedings arising out of the same may be quashed.
On the other hand, learned State Counsel has submitted that the petitioner absconded and was declared proclaimed person vide order dated 31.01.2020 after expiry of the period of 30 days from publication of the proclamation. The impugned order does not suffer from any illegality and the petition may be dismissed.
On consideration of the submissions made by learned Counsel for the petitioner and learned State Counsel and on perusal of the relevant record, I am of the considered view that the impugned order dated 31.01.2020 suffers from material illegality and is liable to be quashed with all subsequent proceedings arising out of the same.
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 2 of 7 ::: Downloaded on - 06-06-2021 09:43:02 ::: CRM-M-17561-2021 -3- 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 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)."
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).
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(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 Haryna : 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 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
4 of 7 ::: Downloaded on - 06-06-2021 09:43:02 ::: CRM-M-17561-2021 -5- 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 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 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).
In Dilbagh Singh Vs. State of Punjab (P&H) : 2015 (8) R.C.R. (criminal) 166 it was held by this Court that in order to ensure that an accused should have a fair opportunity to appear, 30 days clear notice is necessary and the proclamation should be published in the manner provided by law. In that case, proclamation of the petitioner was issued on 20.08.2014 for 23.08.2014 and vide impugned order dated 25.09.2014 the petitioner was declared proclaimed offender. Clear notice of 30 days as mandated under Section 82 of the Cr.P.C.
5 of 7 ::: Downloaded on - 06-06-2021 09:43:02 ::: CRM-M-17561-2021 -6- was not given to the petitioner and the procedure for publication of the proclamation was also not followed. The petitioner was held to have been wrongly declared a proclaimed offender and the impugned order was quashed.
In Ashok Kumar Vs. State of Haryana and another :
2013 (4) RCR (Criminal) 550 the case was adjourned by the trial Court vide order dated 04.01.2013 for issuance of proclamation under Section 82 of the Cr.P.C. for 06.03.2014 but period of 30 days had not elapsed from the date of publication till 06.03.2014. On that date case was adjourned to 13.03.2014 on which date the petitioner was declared as proclaimed offender. It was held by this Court that the proclamation was not published in accordance with the procedure prescribed under Section 82(1) of the Cr.P.C. by giving mandatory period of 30 days from the date of publication of the proclamation till the date of hearing fixed in the case for appearance of the petitioner and that the mere fact that on 06.03.2014 the Court adjourned the case to 13.03.2014 for completing the period of 30 days could not be treated as compliance of the provisions of Section 82(1) of the Cr.P.C. Accordingly, the order declaring the petitioner as proclaimed offender was set aside.
The facts of the present case are similar to those of the cases referred above. In the present case vide order dated 01.11.2019 proclamation was ordered to be published against the petitioner under Section 82 of the Cr.P.C. requiring the petitioner to appear before the Court on 07.12.2019. The proclamation was published on 15.11.2019. The petitioner was not given statutory minimum period of thirty days from 15.11.2019, the date of publication of the proclamation issued in terms of order dated 01.11.2019, till 07.12.2019 the date fixed for her appearance before the Court. Learned Chief Judicial Magistrate, Kapurthala vide order dated 07.12.2019 ordered issuance of notice to serving Constable for 21.12.2019 and vide order dated 21.12.2019 adjourned the case to 31.01.2020 for awaiting the appearance of the petitioner on the ground that statutory period of thirty days had not elapsed. Learned Chief Judicial Magistrate, Kapurthala could not extend the time by simply adjourning the case for awaiting appearance 6 of 7 ::: Downloaded on - 06-06-2021 09:43:02 ::: CRM-M-17561-2021 -7- of the petitioner and was mandatorily required to issue the proclamation again for publication thereof in accordance with the provisions of Section 82(2) of the Cr.P.C.. Learned Chief Judicial Magistrate, Kapurthala failed to do so. It follows that the petitioner was wrongly declared proclaimed person vide impugned order dated 31.01.2020 in breach of the prescribed procedure and impugned order dated 31.01.2020 suffers from material illegality and is liable to be quashed.
In view of the above discussion, the petition is allowed and impugned order dated 31.01.2020 passed by learned learned Chief Judicial Magistrate, Kapurthala in case FIR No.17 dated 24.01.2018 registered under Section 420 of the IPC and Section 13 of the Punjab Prevention of Human Smuggling Act, 2012 in Police Station City Kapurthala, District Kapurthala is quashed along with all consequential proceedings arising out of the same.
However, the petitioner is directed to surrender before the trial Court in case FIR No.17 dated 24.01.2018 registered under Section 420 of the IPC and Section 13 of the Punjab Prevention of Human Smuggling Act, 2012 in Police Station City Kapurthala, District Kapurthala within four weeks and on such surrender, subject to order, if any, for grant of anticipatory bail, the petitioner shall be liable to be remanded to police/judicial custody in view of stage of the case in accordance with law as the case may be. Needless to observed that on surrender the petitioner shall be entitled to apply to the trial Court for grant of regular bail and the trial Court shall be bound to dispose of the same expeditiously in accordance with law.
However, nothing in this order shall be treated as expression of any opinion on merits so as to bind or influence the trial Court in disposal of the petition for grant of regular bail or the case on merits.
28.04.2021 (ARUN KUMAR TYAGI)
kothiyal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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