Himachal Pradesh High Court
State Of H.P. vs . Mohd. Usman @ Sahil & Ors. on 17 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
State of H.P. vs. Mohd. Usman @ Sahil & Ors.
Cr.A. No. 484 of 2015 17.10.2023 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.
Ms. Ankita, Advocate, vice for respondents No. 2, 3 and 5.
Mr. G. R. Palsra, Advocate, for respondent No. 7.
of The Senior Superintendent of Police, Poonch (J&K) has not returned the warrants that were sent to him for rt execution. Let an urgent reminder be issued to the concerned Senior Superintendent of Police.
Cr.M.P. No. 3918 of 2023
2. By medium of this application filed under Section 82 Cr.PC. a prayer has been made for issuance of proclamation requiring respondent No. 6 to appear before this Court.
3. It has been averred that this Court on 27.06.2023 passed the following order:-
"We are not at all satisfied with the steps stated to have been taken by the police to secure the presence of respondent Nos.1 and 6 before this Court. Accordingly, the Superintendent of Police, Baddi, is directed to make serious endeavours to secure the presence of respondent No.1 Mohd. Usman @ Sahil and respondent No.6 Rajan before this Court on the next date of hearing.
At the same time, sureties of respondents No.1 and 6 are also directed to make serious endeavours to the similar effect.
List on 1st August, 2023."
4. Thereafter, the case came to be listed on 08.08.2023, when following order came to be passed:-
::: Downloaded on - 18/10/2023 20:40:20 :::CIS -2- "Cr. M.P. No.2796 of 2023.
Since, respondent No.1 is a permanent resident of Jammu and Kashmir, we deem it appropriate to allow this application by directing the Senior Superintendent of Police, Poonch, (J&K), to make all endeavours to arrest the said respondent No.1, whose address is given below:
"Mohd. Usman @ Sahil son of Sh. Abul Aji, R/o Village of Mehlan, PO Surankot, Distt. Poonch, Jammu Kashmir."
The Registry is accordingly directed to issue non-bailable warrants for the arrest of respondent No.1 to the rt concerned Senior Superintendent of Police, Poonch (J& K), returnable within eight weeks. However, in case, respondent No.1 is arrested prior to the said date, then the said Senior Superintendent of Police through his authorized officer shall be at liberty to make mention of the case. Let a copy of this order be sent by the Registry to the concerned Senior Superintendent of Police. List on 17.10.2023. Steps for service of respondent No. 6 be also taken in the meanwhile."
5. In compliance to aforesaid order and prior to the same, all out efforts were made to execute bailable/non-
bailable warrants and respondent No. 6 was searched in every possible place of hide out. Even the elected representative alongwith residents of area where respondent No. 6 last resided and carried out business were associated time and again, but to no avail.
6. It is further averred that despite painstaking efforts by the SHO, Police Station, Barotiwala, to trace respondent No. 6, he could not be traced anywhere inside or outside the State.
7. It is further averred that since respondent No. 6 despite repeated efforts has not been traced, it is evidently ::: Downloaded on - 18/10/2023 20:40:20 :::CIS -3- proved that either he is absconding or concealing himself to .
avoid the process that has repeatedly been issued by this Court.
8. Learned Single Judge of the Punjab and Haryana High Court in Sonu vs. State of Haryana - 2021 (1) RCR of (Criminal) 319, has eloquently summarised the law on the procedure prescribed under Section 82 Cr.P.C. for declaring a rt 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 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).
(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).
::: Downloaded on - 18/10/2023 20:40:20 :::CIS(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 -4- .
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).
of
(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 person/offender and the proclamation has to be issued and rt 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: 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 ::: Downloaded on - 18/10/2023 20:40:20 :::CIS proclamation. Additional copy will be required where the proclamation is also required to be published in the newspaper.
.
-5-(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 of 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 rt 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 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).
(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).
9. We have gone through the reports submitted by the police department through the Inspector General of Police from time to time, which reveal that despite extensive and detailed inquiry and search, the whereabouts of respondent No. 6 could ::: Downloaded on - 18/10/2023 20:40:20 :::CIS not be ascertained. Thus, from the record, we are satisfied that respondent No. 6 has either absconded or is concealing .
-6-himself to avoid the process issued against him from time to time.
10. In the given circumstances, we direct that of proclamation be issued under Section 82 Cr.P.C. against respondent No. 6, in a manner detailed here-under, for rt appearance of respondent No. 6 before this Court:-
i.) By publicly reading of such proclamation in the Shiv Colony, Pinjore, Kalka, District Panchkula (HR).
ii.) By affixation on a conspicuous part of the Municipal Corporations office, Panchkula and Kalka (HR).
iii.) By affixation on the Notice Board of Police Station, Pinjore.
iv.) By affixation on the Notice Board of this Court as well as Notice Board of the Court of the learned Magistrate at Kalka, Pinjore and Nalagarh.
11. The proclamation be issued in Form - IV appended to Second Schedule of the Code of Criminal Procedure.
12. List on 09.01.2024.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 17th October, 2023 (sanjeev) ::: Downloaded on - 18/10/2023 20:40:20 :::CIS