Punjab-Haryana High Court
Yusuf Kalyan vs State Of Punjab on 25 September, 2024
Neutral Citation No:=2024:PHHC:126998
CRM-M-17094
17094-2024 (O&M) -1--
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
124
CRM-M-17094-20242024 (O&M)
Date of decision: 25.09.2024
.2024
Yusuf Kalyan ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Munish Bhardwaj, Advocate
for the applicant-petitioner.
Ms. Ruchika Sabherwal, Sr. DAG, Punjab.
MANISHA BATRA, J. (Oral)
1. CRM-35740 35740-2024 Allowed as prayed for.
Documents are taken on record as Annexures P P-5 and P-6.
2. CRM-M M-17094-2024 (O&M) The instant petition has been filed by the petitioner under Section 482 Cr.P.C. for quashing of order dated 23.04.2015 (Annexure P P-2),, passed by the Judicial Magistrate First Class, Jalandhar in case titled as State vs. Yousuf Kalyan, Kalyan arising out of FIR No. 72 dated 25.05.2014, registered under Sections 15, 18 and 21 of the NDPS Act at Police Station Division No. 2, Jalandhar,, whereby the the petitioner had been declared aas proclaimed offender.
offender
3. The present petition has been filed by the petitioner on the grounds and it has been argued by his counsel that the petitioner has been falsely implicated in this case.
case The petitioner was under a bbonafide onafide impression that he was declared innocent during the course of investigation. The 1 of 5 ::: Downloaded on - 27-09-2024 05:39:10 ::: Neutral Citation No:=2024:PHHC:126998 CRM-M-17094 17094-2024 (O&M) -2--
petitioner had no knowledge about the pendency of the aforesaid proceedings against him and was never served with any notice/warrants issued by the trial Court. He had been declared as proclaimed offender without following the proper procedure prescribed under Section 82 Cr.P.C. Hence, it is urged that the impugned order is liable to be set aside.
4. Learned State counsel,, who has advance notice of the petition, has argued gued that the petitioner was having knowledge about the pendency of the trial and had intentionally avoided his appearance before the trial Court. Therefore, he was rightly declared as a proclaimed offender.. Hence, it is urged that the petition is liable to be b dismissed.
5. I have heard learned counsel for the petitioner at considerable length and have also gone through the material placed on record.
6. On giving due deliberations to the contentions as raised by learned counsel for the parties and on an overall perusal of the orders passed by the trial Court from the date of initiating proceedings under Section 82 Cr.P.C. as against the petitioner till the date of declaring him a proclaimed offender,, I am of the considered opinion that the impugned order dated 23.04.2015 suffers from material illegalities and is liable to be quashed with all the consequential proceedings arising therefrom.
7. There are catena of judgments of different High Courts discussing the requirements necessary for issuance and pub publication lication of proclamation against an absconder under Section 82 Cr.P.C. and for declaring him as a proclaimed person/offender. These requirements have been discussed from time to time in Rohit Kumar Vs. Stat Statee of Delhi : 2008 Crl. J. 2561, 2561 Bishundayal Mahton Mahton and others Vs. Emperor : AIR 1943 Patna 366, 2 of 5 ::: Downloaded on - 27-09-2024 05:39:10 ::: Neutral Citation No:=2024:PHHC:126998 CRM-M-17094 17094-2024 (O&M) -3--
Devender Singh Negi Vs. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783, Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826, Shokat Ali Vs. State of Haryna : 2020(2) RCR (Criminal) 339, Dilbagh Sin Singh gh Vs. State of Punjab : (P&H) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar Vs. State of Haryana and another : 2013 (4) RCR (Criminal) 550, Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368, Birad Dan Vs. State : 1958 CriLJ 965, Negi alias Debu Vs. State of U.P. and another, 1994 Cri LJ 1783 and Pal Singh Vs. The State : 1955 CriLJ 318.
8. After going through the material placed on record as well as the copies of zimini orders passed by the trial Court Court, it is revealed that on 09.01.2015 since the non-bailable 09.01.2015, bailable warrants issued against the petitioner were received back unserved, the trial Court had ordered for issuance of proclamation against him for 02.03.2015.. A bare perusal of this order shows that the trial Court before ordering for pub publication lication of proclamation has not recorded its satisfaction much less proper satisfaction that the petitioner had absconded or was concealing himself so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence, wh which ich was in violation of the provisions of Section 82(1) of Cr.P.C. Reliance in this regard can be placed upon Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561.
9. Further, a perusal of order dated 02.03.2015 reveals that when the matter was taken up on that date, the proclamation was received back executed, however, since the period of 30 days had not elapsed, the matter was adjourned to 23.04.2015 awaiting the appe appearance arance of the petitioner.
However, while adjourning the case to 23.04.2015, the trial Court failed to consider the fact that it could not have extended the time by simply adjourning 3 of 5 ::: Downloaded on - 27-09-2024 05:39:10 ::: Neutral Citation No:=2024:PHHC:126998 CRM-M-17094 17094-2024 (O&M) -4--
the case as a fresh proclamation was required to be published once the period pe between issuance of publication of proclamation and the specified period of hearing was less than 30 days. Reference in this context can be made to Dilbagh Singh Vs. State of Punjab (P&H) : 2015 (8) R.C.R. (criminal) 166. 166
10. Further, a perusal of thee statement of the serving police official reveals that the proclamation was not read over in some conspicuous place of the town or village in which the petitioner was supposed to be residing. As per Section 82 (2) of the Cr.P.C.. for publication 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 ides 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.
house. The three sub-clauses sub (a)-(c)
(c) in Section 82 (2)(i) of the Cr.P.C.
are conjunctive and not disjunctive, disjunctive, which means that there would be no valid publication of the proclamation unless all the three modes of publication are proved. Reliance in this regard can be placed upon Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368.
11. Accordingly,, in view of the discussion as made above and also in view of the ratio of law as laid down in above cited authorities authorities,, the present petition is allowed and the impugned order dated 23.04.2015 (Annexure P-2), P passed by the Judicial Magistrate First Class, Jalandhar in case titled as State vs. Yousuf Kalyan, Kalyan arising out of FIR No. 72 dated 25.05.2014, registered under Sections 15, 18 and 21 of the NDPS Act at Police Station Division 4 of 5 ::: Downloaded on - 27-09-2024 05:39:10 ::: Neutral Citation No:=2024:PHHC:126998 CRM-M-17094 17094-2024 (O&M) -5--
No. 2, Jalandhar, Jalandhar, whereby the petitioner had been declared a procl proclaimed aimed offender,, is quashed with all consequential proceedings arising therefrom.
12. However, the petitioner is directed to surrender before the Court concerned within a period of four weeks, subject to order for grant of anticipatory bail, if any passed on his petition to be filed under Section 482 of BNSS.. In the absence of any order for grant of anticipatory bail and on such surrender, the petitioner shall be liable to be remanded to judicial custody subject to any order for grant of regular bail to be passed by the concerned Court in accordance with law.
13. Needless to observe that in case any application is filed before the concerned Court for grant of regular bail, then the concerned Court shall be bound to dispose of the same expeditiously and that nothing in this order shall be treated as expression of any opinion on merits so as tto o bind or influence the concerned Court in disposal of the same.
14. Till the appearance of the petitioner before the trial Court, his arrest shall hall remain remai stayed.
15. It is made clear that in case the petitioner fails to appear before the trial Court within a period of four weeks from today, this petition shall be deemed to be dismissed.
25.09.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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