Punjab-Haryana High Court
Irvinder Kaur And Another vs State Of U.T. Chandigarh And Another on 23 May, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Misc. No. M-15530 of 2012 (O&M)
Date of decision: May 23, 2012
Irvinder Kaur and another
.. Petitioners
Vs.
State of U.T. Chandigarh and another
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Ms. Monika Goyal, Advocate for the petitioners.
A.N. Jindal, J
The petitioner has sought quashing of the order dated
23.3.2011 vide which the petitioner was declared as Proclaimed Offender.
The learned counsel for the petitioner has urged that the process
followed by the trial court to declare the petitioner as proclaimed offender is
not correct. He having not committed any offence as mentioned in Section
82 (4) of the Cr.P.C. could not be declared as proclaimed offender.
In this regard before settling the proposition it would be
appropriate to observe that the words "proclaimed offender" and
"proclaimed person" are not defined in the Code except in Section 40 (2)
(ii). From this bare provision it transpires that the word "proclaimed
offender" includes the proclaimed person but the word "proclaimed person"
does not include the "proclaimed offender". Actually this difference has
been created for prescribing different parameters qua quantum of sentence
in case of these two categories of persons. Section 174 (A) of the Indian
Penal Code, by way of amendment Act No.25 of 2005, prescribing the
sentence for such offenders reads as under :-
"174A. Non-appearance in response to a proclamation under
section 82 of Act 2 of 1974 - Whoever fails to appear at the specified
place and the specified time as required by a proclamation published
under sub-section (1) of section 82 of the Code of Criminal Procedure,
1973 shall be punished with imprisonment for a term which may extend to
three years or with fine or with both, and where a declaration has been
made under sub-section (4) of that section pronouncing him as a
Crl. Misc. No. M-15530 of 2012 (O&M) -2-
***
proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
Till the amendment by Act No. 25 of 2005 proclamation was being done in respect of the person against whom a warrant has been issued and against the person who has been absconding or concealing himself to evade execution of the warrants but by way of Act No.25 of 2005, in consonance with Section 40 (2) (ii) of the Code, sub-section (4) was made part of Section 82 of the Code. Similar observations were made b this Court in case Rahul Dutta v. State of Haryana 2012 (2) R.C.R. (Criminal) 585 which reads as under :-
"16. Till the amendment by Act No.25 of 2005, proclamation was being done in respect of a person against whom a warrant has been issued and who has been either absconding or concealing himself to evade the execution of warrants but by way of Act No.25 of 2005, in consonance with Section 40 (2) (ii), sub-section (4) is made a part of Section 82 Cr.P.C."
As a matter of fact, the offence committed by the proclaimed offender was made graver than the offence committed by the "proclaimed person" particularly for the reason that proclaimed offender is one who fulfills the following condition :-
(i) It covers the offender who has been proclaimed as such by any court or authority in any territory in India to which this Code does not extend.
(ii) He should have been declared proclaimed offender for the offence committed within the territory to which this Code extends.
(iii) The offender has committed any of the offences as mentioned in Section 82 (4) of the Code, within the territory of which the Code extends.
The difference between Section 82 (1) and 84 of the Code is not much in procedure but in punishment. But the fact remains that the proclaimed offender as mentioned in Section 40 (2) (ii), as well as in Section 174 (A), is who has committed the offence under Section 82 (4) of Cr.P.C. and also under Section 174 (A) of the Indian Penal Code.
Now taking the case from another angle. Section 82 of the Code reads as under :-
Crl. Misc. No. M-15530 of 2012 (O&M) -3-***
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 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.
On bare reading of the section it transpires that sub-section (1) to (3) of Section 82 of the Code deal with the issuance of proclamation of the persons absconding, whereas sub-section 4 of Section 82 of the Code deals with the making declaration of the persons as Proclaimed Offenders. Unlike sub-section (4) of Section 82, there are no words "pronounce him as proclaimed offender and make declaration to that effect.". As such, sub- section (4) classifies the provisions of law under which the accused could be declared as Proclaimed Offender. Similar view has been taken by this Court in case Satinder Singh vs. The State of U.T. Chandigarh and another 2011 (2) R.C.R. (Crl.) 89 wherein it was observed as under :-
Crl. Misc. No. M-15530 of 2012 (O&M) -4-*** "The only contention raised by the learned counsel for the petitioner is that the Magistrate could not have declared the petitioner as proclaimed offender as he is not accused of any of offences specified under sub- section 82 Cr.P.C. and as such he could be declared proclaimed offender. So far as the order declaring the petitioner otherwise as proclaimed offender is concerned, the same is in contravention to sub section 4 Section 82 Cr.P.C.and thus liable to be quashed."
In the present case also, the accused has not committed any of the offences as mentioned in sub-section (4) of Section 82 of the Code, therefore, no declaration qua her being proclaimed offender could be made.
Consequently, the impugned order is quashed. However, as regards the question of his proclamation as "proclaimed person", the petitioner wants to avoid the situation while stating that she is ready to appear before the Magistrate and furnish the requisite bail bonds for her appearance as she remained absent and could not appear before the trial court for sufficient grounds.
Thus, keeping in view the nature of the offence; the petitioner is a lady and has offered to furnish requisite bonds before the court, she is directed to appear before the trial court on 6.7.2012, whereupon, the court would proceed in accordance with law.
(A.N. Jindal) Judge May 23, 2012 deepak