Punjab-Haryana High Court
Harminder Singh vs State Of Punjab And Another on 18 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:094637
CRM-M-32467-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
122 CRM-M-32467 of 2024
Decided on: 18.07.2024.
Harminder Singh ...Petitioner
Versus
State of Punjab and Another ...Respondents
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Birinder Pal, Advocate for the petitioner.
Ms. Swati Batra, DAG, Punjab.
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ANOOP CHITKARA, J.
Complaint No. Sections Titled Crl Comp. Case 379, 380, 411, 427, 506, Atma Singh Vs. Harminder Singh and No. 162 Dated 34 IPC Others 01.04.1998
1. Seeking quashing of order dated 14.03.2006; arrest warrant; order dated 10.02.2010 of issuance of proclamation under Section 82 Cr.P.C.; order dated 02.04.2010 after declaring petitioner a proclaimed offender, the petitioner who is a citizen of United States of America has come up before this Court under Section 482 Cr.P.C., 1973.
2. Counsel for the petitioner submits that also he seeks quashing of summons but he would not press the same and would confine his prayer to quashing of orders of proclamation and other warrants and he undertakes to appear in the above captioned case on or before 30.09.2024 unless prevented for reasons beyond his control for which he will seek extension for a significant period of time.
3. The nature of order this Court proposes to pass, no notice is required to be issued to respondent No.2 Atma Singh because eventually the order is going to be beneficial to the complainant-respondent No.2 and would speed up trial which is stuck up for so long.
4. The facts of the case necessary to adjudicate the present petition are that on 01.04.1998 one Atma Singh filed a complaint under Sections 379, 380, 411, 427, 506 read with Section 34 IPC. On 14.03.2006, the concerned JMIC took cognizance of the complaint and issue notices to the petitioner and other accused. Although the petitioner 1 1 of 5 ::: Downloaded on - 03-08-2024 03:21:18 ::: Neutral Citation No:=2024:PHHC:094637 CRM-M-32467-2024 -2- has not annexed the copies of the order from the date of summoning till 14.03.2006 but perusal of order dated 14.03.2006 clearly reveals that the petitioner was duly served and he appeared through his counsel when an application was filed for exemption for personal appearance. On 21.08.2008, it is noticed in its order that Harwinder Singh had to move to America without permission of this Court for medical treatment of his brother who had expired there and for this reason, he could not attend the trial proceedings. The Court observed that the petitioner intentionally avoided appearing in the Court and as such, dismissed the prayer for exemption and cancelled the bail and surety bonds and issued warrants of arrest. After the bailable warrants were unserved , non bailable warrants were issued. As per order dated 10.02.2010 report was made that the petitioner is out of country and after that proceedings under Section 82 Cr.P.C. were initiated. However it appears that procedure as enshrined under Section 105 Cr.P.C. was not complied with. The trial proceeded against other 03 accused and vide judgment dated 04.04.2013 the prosecution was dismissed and all the 03 accused were acquitted of the charges. Despite of the petitioner's undertaking earlier, the petitioner could not be apprehended and now the petitioner on his own has come up before this Court seeking quashing of non bailable warrants and proclamation and undertakes to surrender on the following ground.
REASONING
4. Be that as it may, the primary reason to quash the proclamation orders was when the petitioner was not in India despite affixations being made in their Indian address.
5. Another reason to quash the proclamation is the non-compliance of the statutory provision of Section 105 CrPC. It shall be relevant to extract Section 105 of CrPC, 1973, which reads as follows:
105. Reciprocal arrangements regarding processes. --
(1) Where a Court in the territories to which this Code extends (hereafter in this section referred to as the said territories) desires that--
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or
(d) a search-warrant, issued by it shall be served or executed at any place,--
(i) within the local jurisdiction of a Court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall 2 2 of 5 ::: Downloaded on - 03-08-2024 03:21:18 ::: Neutral Citation No:=2024:PHHC:094637 CRM-M-32467-2024 -3- apply in relation to such summons as if the presiding officer of the Court to whom it is sent were a Magistrate in the said territories;
(ii) in any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters (hereafter in this section referred to as the contracting State), it may send such summons or warrant in duplicate in such form, directed to such Court, Judge or Magistrate, and send to such authority for transmission, as the Central Government may, by notification, specify in this behalf.] (2) Where a Court in the said territories has received for service or execution--
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or
(d) a search-warrant, issued by--
(I) a Court in any State or area in India outside the said territories; (II) a Court, Judge or Magistrate in a contracting State, it shall cause the same to be served or executed] as if it were a summons or warrant received by it from another Court in the said territories for service or execution within its local jurisdiction; and where--
(i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by sections 80 and 81,
(ii) a search-warrant has been executed, the things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by section 101:
[Provided that in a case where a summons or search-warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the Court issuing the summons or search-warrant through such authority as the Central Government may, by notification, specify in this behalf.
7. Thus, there is nothing to demonstrate that the State had either complied with the statutory provisions of Section 105 Cr.P.C. or were not required to comply with such provisions.
8. The petitioner's counsel submits that his brother was a Magistrate who in October, 2005 met with an accident and on hearing of the same, he went to United States of America on 13.10.2005 where on 13.11.2005 his brother expired. Then after that the petitioner did not return and he was declared proclaimed offender on 02.04.2010. The petitioner's counsel has annexed the copy of Indian Passport to show that he never returned to India. The petitioner has annexed the copy of the passport which was valid from 17.12.1999 to 16.12.2009 and the petitioner was granted visa to United States of America on 04.10.2005 upto 03.04.2006. On reaching USA, the petitioner did not return but obtained an American passport which was issued to him on 16.12.2020. The petitioner's counsel has annexed the copy of the said passport to 3 3 of 5 ::: Downloaded on - 03-08-2024 03:21:18 ::: Neutral Citation No:=2024:PHHC:094637 CRM-M-32467-2024 -4- demonstrate that he did not travel to India. He has also annexed the copy of visa issued by Republic Of India in favour of the petitioner on 21.01.2011 valid upto 20.01.2021 with multiple entries. However, the petitioner never travelled to India .
9. State counsel opposes the application and submits that the intention of the petitioner might be only to execute power of Attorney or to dispose of his property or other settlement and as such there is no assurance that once he comes to India he would not attend the trial or surrender and might want to monetize his Indian assets.
10. On this petitioners' counsel on instructions submits that the petitioner undertakes not to issue any Power of Attorney except for the case and not to enter into any agreement to sell or sale deed or mortgage or in any manner to enter into sale deed or other transaction(s) till he appeared before the concerned Court and after that only with the permission of the trial Court concerned.
11. A perusal of the said statement reveals that the prosecution is complying with the provisions of Section 82 & 105 CrPC. Section 82 CrPC provides that affixation must be made where the petitioner resides. Given above, the proclamation was not affixed in terms of section 82 (2) (i) (a) & (b) of CrPC, which mandate that the proclamation shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; and 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. None of these conditions were complied with, and the non-adherence to the procedure has rendered the proclamation illegal.
12. In Himachal Pradesh Cricket Association v State of Himachal Pradesh,2018:INSC:1039 [Para 47],2018 (4) Crimes 324, Hon'ble Supreme Court holds "[47]. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated."
13. Given the above, continuing these proceedings will not suffice for fruitful purposes. In the facts and circumstances peculiar to this case, the Court invokes the inherent jurisdiction under section 482 CrPC and quashes the order dated 14.03.2006, 10.02.2010 and 02.04.2010 passed by JMIC, and all subsequent proceedings qua the petitioner, subject to the compliance of the following terms and conditions.
14. Petitioner's counsel submits that they will appear before the trial Court and they 4 4 of 5 ::: Downloaded on - 03-08-2024 03:21:18 ::: Neutral Citation No:=2024:PHHC:094637 CRM-M-32467-2024 -5- be given reasonable time to appear. It is clarified that because, as of date, the petitioner is aware of the proclamation and filing of the present petition, as such, let the petitioners appear before the concerned Court on or before 30.09.2024. Counsel for the petitioners shall inform the petitioners about the directions of this Court so they can make an appearance before the concerned trial Court. Given the statement made by the petitioner's counsel, they shall be deemed to have been informed about this order.
15. Given such undertakings and reasons mentioned above, the petition is allowed, and proclamation orders are quashed and set aside, subject to the condition that the petitioners shall appear before the trial Court on or before 30.09.2024. Till that time the lookout circular (LOC) and non-bailable warrants issued against the petitioners in the abovementioned complaint shall remain stayed to enable the petitioners to travel to India. It is clarified that if the petitioner fails to appear before the trial Court by 30.09.2024 by 11.00 am, then this order shall stand recalled automatically without any further reference to this Court, for the reason that this Court has intervened without even getting a response from the State Government and the State Government did not insist to the filing of the response because of the statement made on behalf of the petitioner that he shall put in an appearance before the concerned Court.
16. The SHO of the concerned police station or the investigating officer shall arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, without any delay. If the victim(s) notice any violation of this order, they may inform the SHO of the concerned police station, the trial court, or even this court.
17. Petition partly allowed in aforesaid terms and conditions.
18. Liberty reserved to seek quashing of summons on merits as well as on compromise if it is arrived.
(ANOOP CHITKARA) JUDGE 18.07.2024 Sonia Puri Whether speaking/reasoned: Yes Whether reportable: NO 5 5 of 5 ::: Downloaded on - 03-08-2024 03:21:18 :::