Rajasthan High Court - Jodhpur
Lavina Harwani vs State Of Rajasthan (2024:Rj-Jd:38583) on 18 September, 2024
[2024:RJ-JD:38583]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 6324/2024
Lavina Harwani W/o Sh. Bhagwan Harwani, Aged About 49
Years, R/o Jain Colony, Behind Mahamandir, 3Rd Polo, Jodhpur At
Present R/o New Pratapnagar Colony, Near Cares Beauty Point,
Amritsar, Punjab.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Harish Chandra Mathur S/o Laxmi Narayan, R/o 354, 4Th
C Road, Sardarpura, Jodhpur City West, Raj.
----Respondents
For Petitioner(s) : Mr. Pravin Vyas.
For Respondent(s) : Mr. Shri Ram Choudhary, P.P.
HON'BLE MR. JUSTICE ARUN MONGA
Order 18/09/2024
1. Grievance of the petitioner herein is against an order dated 27.10.2023 passed by learned Additional Chief Metropolitan Magistrate (CBI Cases), Jodhpur Metro, in Criminal Case No.70/2022, under Section 406 & 420 of IPC, whereby, while declaring him as an absconder, arrest warrants have been issued against the petitioner and proceedings under Sections 82 & 83 Cr.P.C. were ordered to be initiated separately.
2. Briefly speaking, the relevant facts of the case are as follows: A written report was filed by the complainant, alleging that he lent ₹6,00,000 to the accused-petitioner on December 8, 2017, for wedding expenses. The complainant provided this amount as a loan for a period of 2-3 months. After repeated requests for repayment, the accused-petitioner gave him a cheque (Downloaded on 24/09/2024 at 08:39:35 PM) [2024:RJ-JD:38583] (2 of 6) [CRLMP-6324/2024] from her Bank of Baroda account. When the cheque was presented at the bank, it was returned with the note "account closed." Based on these allegations, an FIR was registered on 14.03.2019 under Sections 406 and 420 of IPC. After investigation, a challan was filed on March 22, 2021, and the trial commenced.
2.1 It is stated that at the time of the registration of the FIR in 2019, the petitioner was not residing in Jodhpur, having shifted to Amritsar way back in 2018. Therefore she was unaware of the proceedings as she was never served with the summons. Thus through this petition the impugned order is sought to be set aside and the arrest warrant be converted into bailable warrants.
3. In the aforesaid backdrop, I have heard learned counsel for the petitioner and the learned Public Prosecutor.
4. Having heard, I am of the view that given the nature of order being passed herein, no prejudice would be caused to the respondent No.2 (complainant) and, therefore, requirement of issuing notice is dispensed with.
5. It transpires that the petitioner had indeed shifted from Jodhpur to Amritsar sometime in 2018. The FIR in question was registered on March 14, 2019. At the relevant time, since she was not residing in Jodhpur, she had no knowledge of the FIR as no notices were ever served on her.
5.1 However, a presumption was drawn that she was intentionally evading the process. Consequently, a charge-sheet was filed in absentia under Section 299 Cr.P.C. on March 22, 2021. The lack of the petitioner's current address, led the trial court to presume that the petitioner was deliberately not joining the trial (Downloaded on 24/09/2024 at 08:39:35 PM) [2024:RJ-JD:38583] (3 of 6) [CRLMP-6324/2024] despite service on her old address as provided by the prosecution. However, the stark truth remains that the petitioner was never served with the court's summons at her current address. In both the prosecution record and the address provided by the complainant, the address was still that of Jodhpur, and therefore, there was no possibility of her being served at the current address.
5.2 Resultantly, it appears that without making any attempt to ascertain the petitioner's address, proceedings under Sections 82 and 83 Cr.P.C. were initiated via the impugned order.
6. Qua issuance of process under Sections 82 & 83 of Cr.P.C. against the petitioner herein, reference may be had to a Punjab and Haryana High Court judgment rendered in case of Pradeep Kumar Vs. State of Punjab and Anr.1, decided on 23.08.2023. Relevant thereof is extracted hereinbelow:-
"13.1 The declaration of an individual as a proclaimed person or offender, as contemplated under Section 82 of the Code of Criminal Procedure (hereafter referred to as 'the Code'), carries with it the consequential implication of attachment and sale of his property as delineated in Sections 83, 84, and 85 of the Code. Furthermore, such a declaration triggers the criminal liability of the individual under Section 174-A of the Indian Penal Code, with a potential sentence of up to seven years of imprisonment, coupled with a monetary penalty. This, in turn, has profound and far-reaching ramifications, significantly affecting the fundamental rights to life, liberty and property of the concerned individual. Hence, it becomes imperative that the Courts meticulously adhere to the statutory requirements in letter and spirit both, duly reflecting their compliance on the record prior to pronouncing an individual as a proclaimed person or offender and invoking criminal liability under the aforementioned section.
13.2 Section 82(1) of the Code mandates that a proclamation shall require the concerned individual to appear at a specified place and time, with no less than thirty days' notice from the date of proclamation publication. Sub-Section (2) provides comprehensive 1 Punjab & Haryana High Court - CRM-M-41656-2023(O&M) (Downloaded on 24/09/2024 at 08:39:35 PM) [2024:RJ-JD:38583] (4 of 6) [CRLMP-6324/2024] guidance on the publication of proclamations, while sub-Section (3) firmly establishes that a written statement by the issuing Court shall be conclusive evidence of compliance with the requirements of this Section. Additionally, Section 83(1) empowers the Court, to order the attachment of any property, whether movable or immovable, belonging to the proclaimed individual, for reasons recorded in writing.
13.3 In cases where an accused person fails to appear even after publication of the proclamation under Section 82(1) of the Code, the Court can initiate action as per procedure outlined in Sections 83, 84, and 85 of the Code for the attachment and sale of their property. Furthermore, the Court may proceed with the examination of witnesses in the individual's absence, as stipulated in Section 299 of the Code.
x-x-x-x-x
19. Before parting with the case, having had the benefit of judgment in Sunil Tyagi supra, it is considered desirable to frame guidelines for issuance of a proclamation under Section 82 of the Code of Criminal Procedure, it's publication, declaring the concerned person as 'proclaimed person' or 'proclaimed offender' and where considered necessary, to invoke criminal proceedings against person for offence under Section 74-A of IPC. Accordingly, the following guidelines are being framed:
Issuance of proclamation :
i. Preceding the issuance of the proclamation under section 82 Cr.P.C., the Court must deliberate upon its previous efforts to secure the presence of the through other legally permissible means. These efforts encompass the issuance of summons, the execution of bailable and/or non-bailable warrants against the accused. The Court must thoroughly document the results stemming from these endeavours, accompanied by pertinent facts and comprehensive details. It is incumbent upon the Court to satisfactorily ascertain that the individual in question has indeed absconded or is concealing himself to evade execution of warrant of arrest. ii. The phrase "reason to believe," as articulated in Section 82 of the Code of Criminal Procedure, signifies that the Court must derive its belief from the available evidence and materials that the concerned person has absconded or is concealing himself to evade execution of warrant of arrest.
iii. Furthermore, in the proclamation, it must be set forth as to where and when the concerned individual must present himself. A designated location and time must be stipulated. Importantly, the specified date and time for appearance should not be less than a thirty-day from the date of publication of the proclamation. Publication of proclamation-
iv. The publication of a proclamation, as outlined in Section 82(2) of the Code of Criminal Procedure, mandates adherence to all three prescribed modes, namely:
(a). The public reading of the proclamation in a conspicuous location within the town or village where the individual ordinarily resides.(Downloaded on 24/09/2024 at 08:39:35 PM)
[2024:RJ-JD:38583] (5 of 6) [CRLMP-6324/2024]
(b) The affixation of the proclamation at a prominent spot at the individual's house or homestead.
(c) The display of the proclamation at a prominent location within the precincts of the court house. v. All the aforesaid three modes of publication of a proclamation have to be adhered to. Failure to follow all or any of them renders the proclamation invalid in the eyes of the law. This is because the three sub-clauses (a) to (c) are mutually exclusive. vi. If the Court so feels, in addition to the aforementioned trio of methods for securing the accused's presence, it may, at its discretion, also direct the publication of a copy of the proclamation in a daily newspaper circulating within the geographical area where the said individual ordinarily resides. vii If the Court, in its discretion orders publication of proclamation in newspaper, it shall also direct that the newspaper agency, upon the publication of the proclamation in the newspaper, shall dispatch a copy thereof to the accused's ad dress, as is the procedure observed in civil matters, in terms of Order 5 Rule 10 of the Code of Civil Procedure. In essence, this supplementary measure ensures that the accused is duly apprised of the legal proceedings against him.
Declaration as "proclaimed person" or "proclaimed offender:
viii. Prior to the declaration of the concerned individual as a "proclaimed person" or "proclaimed offender," the Court shall pass a speaking order stating relevant facts and record its satisfaction that the proclamation has been duly and properly published in the prescribed manner.
ix. Furthermore, it must ensure that a period of not less than thirty days has expired between the date of publication of the proclamation and the date indicated in the proclamation for the individual's appearance. If the interval between the proclamation's publication and the date specified therein for appearance falls short of thirty days, such a publication of the proclamation cannot serve as the foundation for designating the individual in question as a "proclaimed person" or "proclaimed offender."
7. The impugned order dated 27.10.2023 passed by learned Additional Chief Metropolitan Magistrate (CBI Cases), Jodhpur Metro, in Criminal Case No.70/2022, initiating the proclamation proceedings under Sections 82/83 of Cr.P.C. is not in consonance with the aforesaid parameters. As an upshot, applying the same yardstick as enunciated hereinabove, order impugned is set aside.
Petitioner is directed to appear before the learned Court below on the next date of hearing and seeks bail in accordance with law. On (Downloaded on 24/09/2024 at 08:39:35 PM) [2024:RJ-JD:38583] (6 of 6) [CRLMP-6324/2024] her causing appearance, the bail application filed by her shall be decided by the learned trial court on the same day.
8. Pending application(s), if any, stand disposed of.
(ARUN MONGA),J 186-Sumit/-
Whether Fit for Reporting: Yes / No
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