Rajasthan High Court - Jodhpur
Surendra Sharma vs State Of Rajasthan (2024:Rj-Jd:27750) on 9 July, 2024
[2024:RJ-JD:27750] (1 of 8) [CRLMP-4312/2024]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4312/2024
Surendra Sharma S/o Sardul Sharma, Aged About 49 Years, R/o
Flat No. 702, Sanchi Enclave, D.p.s. Road, Bhuvana, Udaipur
(Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through PP
2. Ramlal S/o Late Shri Pannalal Suthar, Proprietor
Vishvakarma Road Lines R/o Opposite Debari Filling
Station, Debari Chauraha, Udaipur (Raj.)
----Respondents
For Petitioner(s) : Ms. Deepika Purohit.
For Respondent(s) : Mr. Vikram Sharma, P.P.
HON'BLE MR. JUSTICE ARUN MONGA
Order(Oral) 09/07/2024
1. Quashing of an order dated 11.06.2024 passed by the learned Additional Sessions Judge No.1, Udaipur, is sought herein. Vide impugned order, a non-bailable warrant was issued against the petitioner. Subsequently, due to petitioner's non-availability, another order dated 23.02.2024 was passed by the learned Special Judicial Magistrate (N.I. Act Cases) No.6, Udaipur, to initiate proceedings under Sections 82 & 83 of Cr.P.C., which is also assailed herein.
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2. Briefly speaking relevant facts leading to filing of instant petition are that Respondent No.2 (complainant) filed a complaint u/s 138 of N.I. Act against the petitioner for dishonor of a cheque issued to him for an amount of Rs.12,50,000/-. On the basis of the aforesaid complaint, the learned trial court took cognizance and issued summons to the petitioner.
2.1 Thereafter, charges were framed and on 13/09/23, the complainant's evidence was concluded. The matter was then scheduled for recording the petitioner/accused's statement. However, on 08/11/23, the petitioner's counsel filed an application seeking exemption of personal presence of petitioner. He sought adjournment due to the petitioner's absence, citing unavoidable circumstances. However, the learned trial court summarily dismissed the application, issued an arrest warrant against the petitioner, and forfeited his bail bonds vide an order dated 08/11/23.
2.2. The warrant was received unserved in the court. Consequently, on 23/02/24, the learned trial court declared the accused/petitioner a proclaimed offender and initiated proceedings under Sections 82 and 83 of the Criminal Procedure Code. A standing arrest warrant was issued to arrest the petitioner. 2.3. Aggrieved by the trial court's order, the petitioner filed a Revision Petition before the Additional Sessions Judge. The Revision petition was also dismissed on 11/06/24. Hence the instant petition.
3. In the aforesaid backdrop, I have heard learned counsel for the petitioner and the learned Public Prosecutor. (Downloaded on 26/07/2024 at 09:08:32 PM) [2024:RJ-JD:27750] (3 of 8) [CRLMP-4312/2024] 3.1 Counsel for the petitioner argues on the same lines as the grounds taken in the petition urging that the petitioner through out attended the court regularly. His application seeking exemption from personal presence was dismissed abruptly on 08/11/23 resulting in an arrest warrant. The trial court erred in rejecting the exemption application, disregarding that it was only the third hearing for recording the petitioner's statement, with previous two adjournments due to unavoidable circumstances. 3.2. He would argue that the trial court failed to follow proper procedure before declaring the petitioner absconder. Neither calling for reports nor recording statements was carried out, as required by law.
3.3. The court erred in dismissing the exemption application and issuing an arrest warrant, when it could have granted an adjournment with compensatory costs or instead issued a bailable warrant, given the bailable nature of the offense. 3.4. The court failed to consider the irreparable loss and injury to the petitioner that would be caused to him in the event he is arrested and tried under Sections 82/83 of the Cr.P.C.
4. Learned PP would support the impugned orders passed by both the learned courts below for the reasons stated therein.
5. Having heard the learned counsel for the petitioner and after perusing the impugned order, I am of the view that the learned Court below not only took an overpedantic view of enforcement of provisions under Sections 82 & 83 of Cr.P.C., but also fell in grave error in not appreciating extenuating factors of the petitioner, due to which, he was unable to appear on the fateful day. (Downloaded on 26/07/2024 at 09:08:32 PM) [2024:RJ-JD:27750] (4 of 8) [CRLMP-4312/2024]
6. His non-appearance was clearly not intentional and the learned Court below ought to have looked into the same before summarily rejecting the stand taken in the application seeking exemption from personal presence. Instead, it straightway chose to issue non-bailable warrants followed by proceedings under Section 82 & 83 of Cr.P.C.
7. Liberty of a citizen is one of the most essential fundamental right envisaged under Article 21 of the Constitution of India and ought not to be taken away in a mechanical manner as seems to be the case at hand.
8. Reference may be had to a judgment rendered by me in similar circumstances, when I was a puisne Judge in Punjab and Haryana High Court, in a case titled Mohammad Haras Vs. State of Punjab & Ors.: CRM-M No.31385/2023, decided on 07.07.2023, relevant whereof, for ready reference, is reproduced as below :-
"5. Heard.
6. No doubt, learned trial Court has got discretion to cancel the bail, however, it is well settled that before passing such an order, Court is required to issue notice to the accused so as to afford him an opportunity to explain as to why the bail should not be cancelled. Such course has not been adopted by learned Judge, Special Court, Sangrur in the instant case. On this ground alone, impugned order to the extent of cancellation of bail deserves to be set aside.
7. Moreover, cancellation of bail is a serious matter and can have significant impact on the life of a person. Matters of personal liberty ought not to be taken so lightly and in such mechanical manner as in the case herein.
8. In the premise, impugned order is set aside. Earlier bail order stands revived on bail bond and surety bond already furnished by petitioner before learned trial Court. Petitioner is directed to join proceedings before learned trial Court within three weeks from today and shall continue to appear before learned trial Court without default.
9. Petition is accordingly allowed."(Downloaded on 26/07/2024 at 09:08:32 PM)
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9. 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. (CRM-M-41656- 2023(O&M)), decided on 23.08.2023, which too, coincidentally was rendered by me. 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 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 (Downloaded on 26/07/2024 at 09:08:32 PM) [2024:RJ-JD:27750] (6 of 8) [CRLMP-4312/2024] 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.
(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.
(Downloaded on 26/07/2024 at 09:08:32 PM) [2024:RJ-JD:27750] (7 of 8) [CRLMP-4312/2024] 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."
x. A person can be declared "Proclaimed offender"
only where the proclamation published under sub-section (1) of section 82 Cr.P.C. is in respect of any of the offences as per table given below :-
OFFENCE UNDER IPC PARTICULARS 302 Punishment for murder 304 Culpable Homicide not amounting to murder 364 Kidnapping or abducting in order to murder. 367 Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. 382 Theft after preparation made for causing death, hurt or restraint in order to the 392 Punishment for robbery. 393 Attempt to commit robbery. 394 Voluntarily causing hurt in committing robbery. 395 Punishment for dacoity. 396 Dacoity with murder. 397 Robbery or dacoity, with attempt to cause death or grievous hurt. 398 Attempt to commit robbery or dacoity when armed with deadly weapon. 399 Making preparation to commit dacoity. 400 Punishment for belonging to gang of dacoits. 402 Assembling for purpose of committing dacoity. (Downloaded on 26/07/2024 at 09:08:32 PM) [2024:RJ-JD:27750] (8 of 8) [CRLMP-4312/2024] 436 Mischief by fire or explosive substance with intent to destroy house, etc. 449 House-trespass in order to commit offence punishable with death. 459 Grievous hurt caused whilst committing lurking house trespass or house-breaking. 460 All persons jointly concerned in lurking house-
trespass or housebreaking by night punishable where death or grievous hurt caused by one of them.
xi. If person accused of the above offences fails to appear at the specified place and time required by the proclamation, the Court may, after making such in quiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
xii. In all other alleged offences, the concerned person can and shall be declared as a "proclaimed person"."
10. The impugned order dated 23.02.2024 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, both the impugned orders dated 11.06.2024 and 23.02.2024 are quashed. Petitioner is directed to appear before the learned Court below on the next date of hearing and it is also ordered that the bail bonds earlier furnished by the petitioner shall be restored to its original. Trial to proceed further in accordance with law.
11. Pending application(s), if any, stand disposed of.
(ARUN MONGA), J 56-/Jitender//-
Whether Fit for Reporting: Yes / No
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