Punjab-Haryana High Court
Mann Singh And Others vs State Of Punjab And Another on 17 December, 2020
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
254-3
CRM-M-39186-2020
Date of decision: 17.12.2020
Mann Singh and others .....Petitioners
Versus
State of Punjab and another .....Respondents
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. C.M. Munjal, Advocate
for the petitioners.
Mr. Sandeep Kumar, DAG, Punjab
for the respondent-State.
****
ARUN KUMAR TYAGI, J (ORAL)
(The case has been taken up for hearing through video conferencing.) Petitioners-Mann Singh, Angrej Singh, Sahib Singh, Harmit Singh and Balkar Singh have filed present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for quashing of impugned order dated 13.11.2019 passed by learned Sub Divisional Judicial Magistrate, Guruharsahai in case FIR No.33 dated 30.04.2013 registered under Sections 148, 307, 324, 323, 341 and 506 read with Section 149 of the Indian Penal Code, 1860 (for short 'the IPC') in Police Station Lakho Ke Behram, District Ferozepur (from which Section 307 of the IPC was deleted lateron), whereby the petitioners were declared proclaimed persons 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 Pritam Singh Bath, Sarpanch of Village Chak Hiraj Berkan, Lakho Ke 1 of 9 ::: Downloaded on - 07-02-2021 10:27:03 ::: CRM-M-39186-2020 -2- Behram, Ferozepur. In his complaint Pritam Singh Bath alleged that on 29.04.2013 in the evening he along with Bohar Singh was going on their motorcycle. At about 8:15/8:30 P.M. when they reached near Gurudawara Sahib on the main Road, Mann Singh and Harmeet Singh armed with kirpan, Sahab Singh armed with dang along with Angrej Singh and Balkar Singh who were empty handed stopped their motorcycle. Balkar Singh and Angrej Singh raised lalkara that they be taught a lesson for getting the possession of panchayat land from them. Mann Singh attacked Pritam Singh Bath with kirpan aiming his head with intention to kill him but he raised his hand on which the blow hit him on his left palm. Harmeet Singh gave kirpan blow on his left elbow. Sahab Singh also gave dang blow aiming his head but he again raised his left hand and the blow fell on his left hand. When Bohar Singh raised alarm, the accused fled from the spot while threatening to kill them in future.
On failure of the petitioners to appear before the Court despite publication of proclamation, the petitioners were declared proclaimed persons vide order dated 13.11.2019.
Feeling aggrieved from the above-said order the petitioners have filed the present petition for quashing of the same along with all consequential proceedings.
Pursuant to notice learned State Counsel has appeared and opposed the petition. However, no reply has been filed by the respondent-State.
Notice could not be issued to respondent No.2-complainant due to not filing of process fee but in view of the nature of relief 2 of 9 ::: Downloaded on - 07-02-2021 10:27:03 ::: CRM-M-39186-2020 -3- claimed presence of respondent No.2-complainant is considered unnecessary and is accordingly dispensed with.
I have heard learned Counsel for the petitioners and learned State Counsel and have gone through the record.
Learned Counsel for the petitioners has submitted that the petitioners were wrongly declared proclaimed persons vide order dated 13.11.2019 in breach of the prescribed procedure. The petitioners were not given thirty days time for their 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 petitioners absconded and were declared proclaimed persons vide order dated 13.11.2019 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 13.11.2019 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 requiring him to appear at a specified place and at a specified time not less than thirty days from the date of 3 of 9 ::: Downloaded on - 07-02-2021 10:27:03 ::: CRM-M-39186-2020 -4- 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 all the three modes of publication are proved. (See
5 of 9 ::: Downloaded on - 07-02-2021 10:27:03 ::: CRM-M-39186-2020 -6- 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.
6 of 9 ::: Downloaded on - 07-02-2021 10:27:03 ::: CRM-M-39186-2020 -7- Clear notice of 30 days as mandated under Section 82 of the Cr.P.C. 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 04.10.2019 proclamation was ordered to be published against the petitioners under Section 82 of the Cr.P.C. requiring the petitioners to appear before the Court on 24.10.2019. The petitioners were not given statutory minimum period of thirty days from the date of publication of the proclamation 7 of 9 ::: Downloaded on - 07-02-2021 10:27:03 ::: CRM-M-39186-2020 -8- issued in terms of order dated 04.10.2019 for their appearance before the Court on the date fixed i.e. 24.10.2019. Vide order dated 24.10.2019 learned Sub Divisional Judicial Magistrate, Guruharsahai adjourned the case to 13.11.2019 for awaiting the appearance of the petitioners on the ground that statutory period of thirty days had not elapsed. Learned Sub Divisional Judicial Magistrate, Guruharsahai could not extend the time by simply adjourning the case for awaiting appearance of the petitioners 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.. It follows that the petitioners were wrongly declared proclaimed persons vide impugned order dated 13.11.2019 in breach of the prescribed procedure and impugned order dated 13.11.2019 suffers from material illegality and is liable to be quashed.
In view of the above discussion, the petition is allowed and impugned order dated 13.11.2019 passed by learned Sub Divisional Judicial Magistrate, Guruharsahai, in case FIR No.33 dated 30.04.2013 registered under Sections 148, 307, 324, 323, 341, 506 read with Section 149 of the IPC in Police Station Lakho Ke Behram, District Ferozepur (from which Section 307 of the IPC was deleted lateron) is quashed along with all consequential proceedings arising out of the same.
However, subject to order of anticipatory bail, if any, passed on petition, if any, filed by the petitioners-Mann Singh, Angrej Singh, Sahib Singh, Harmit Singh and Balkar Singh under Section 438 of the Cr.P.C., the petitioners are directed to surrender before the 8 of 9 ::: Downloaded on - 07-02-2021 10:27:03 ::: CRM-M-39186-2020 -9- trial Court within four weeks and on such surrender the petitioners shall be liable to be remanded to judicial custody in case FIR No.33 dated 30.04.2013 registered under Sections 148, 307, 324, 323, 341 and 506 read with Section 149 of the IPC in Police Station Lakho Ke Behram, District Ferozepur (from which Section 307 of the IPC was deleted lateron) in accordance with law. For the sake of abundant caution it is clarified that in case of remand to judicial custody the petitioners shall be entitled to apply to the concerned Court for grant of regular bail and the concerned Court shall be bound to dispose of the same expeditiously in accordance with law and nothing in this order shall be treated as expression of any opinion on merits so as to bind or influence the concerned Court in disposal of the same.
17.12.2020 (ARUN KUMAR TYAGI)
Kothiyal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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