Punjab-Haryana High Court
Inderjit Dhamija And Another vs State Of Haryana And Another on 1 October, 2020
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
131
CRM-M-25772-2020 (O&M)
Date of decision: 01.10.2020
Inderjit Dhamija and another .....Petitioners
Versus
State of Haryana and another .....Respondent
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Parminder Singh, Advocate for the petitioners.
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ARUN KUMAR TYAGI, J (ORAL)
(The case has been taken up for hearing through video conferencing.) CRM-23789-2020 For the reasons mentioned in the application, the same is allowed and copies of orders of proclamation proceedings initiated against the petitioners are taken on record as Annexures P-7 to P-9. CRM-M-25772-2020 The petitioners have filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for quashing of FIR No.840 dated 09.12.2019 registered under Section 174-A of the Indian Penal Code, 1860 (for short 'the IPC') in Police Station Civil Lines Karnal, District Karnal on the basis of impugned order dated 05.10.2019 passed by learned Chief Judicial Magistrate, Karnal in case FIR No.154 dated 21.02.2019 registered under Sections 120-B, 406 and 420 of the IPC in Police Station Karnal Civil Lines, District Karnal whereby the petitioners were declared proclaimed persons under Section 82 of the Cr.P.C..
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Briefly stated the facts relevant for disposal of present petition are that FIR No.154 dated 21.02.2019 was registered under Sections 120-B, 406 and 420 of the IPC in Police Station Karnal Civil Lines, District Karnal against the petitioners on written complaint made by Ram Kumar on the allegations that the petitioners cheated the complainant by making fraudulent representation of providing 2 BHK flat and dishonestly induced him to pay amount of Rs.9,04,429/- but the petitioners neither gave the flat nor returned the money. The petitioners failed to appear before the Court despite publication of proclamation and were declared proclaimed persons vide order dated 05.10.2019 on the basis of which above-said FIR under Section 174-A of the IPC was registered against the petitioners.
Feeling aggrieved from the above-said order the petitioners have filed the present petition for quashing thereof along with consequential proceedings.
Notice of motion restricted to respondent No.1 only. Pursuant to supply of advance copy of the petition, Mr. Naveen Singh Panwar, DAG, Haryana has appeared and accepted notice on behalf of the respondent-State.
I have heard learned Counsel for the petitioners and learned State Counsel and have gone through the record.
Learned Counsel for the petitioners has submitted that the petitioners were not served and did not have any knowledge of the proceedings for declaring them as proclaimed persons. The petitioners were wrongly declared proclaimed persons vide order dated 05.10.2019 in breach of the prescribed procedure without giving thirty days time to 2 of 9 ::: Downloaded on - 08-11-2020 09:31:27 ::: CRM-M-25772-2020 (O&M) -3- the petitioners for their appearance before the Court. Therefore, the impugned order and all subsequent proceedings including the present FIR arising out of the same may be quashed.
On the other hand, learned State Counsel has submitted that the petitioners absconded and were declared proclaimed persons vide order dated 05.10.2019 after expiry of the period of 30 days from publication of the proclamation on 04.09.2019. The impugned order does not suffer from any illegality and the petition may be dismissed.
On consideration of the submissions made by learned Counsel for the petitioners and learned State Counsel and on perusal of the relevant record, I am of the considered view that the impugned order dated 05.10.2019 suffers from material illegality and is liable to be quashed with all subsequent proceedings arising out of the same.
Section 82 of the Cr.P.C., which provides for publication of proclamation against person absconding, reads as under:-
"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
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(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.
(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub- section (1)."
The essential requirements of Section 82 of the Cr.P.C. for issuance and publication of proclamation against an absconder and declaring him as proclaimed person/offender may be summarized as under:-
(i) Prior issuance of warrant of arrest by the Court is sine qua non for issuance and publication of the proclamation and the Court has to first issue warrant of arrest against the person concerned. (See Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561).
(ii) There must be a report before the Court that the person against whom warrant was issued had absconded or had been concealing himself so that the warrant of arrest could not be executed against him. However, the Court is not bound to take evidence in this regard before issuing a Proclamation under Section 82 (1) of the Cr.P.C.. (See Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561).
(iii) The Court cannot issue the Proclamation as a matter of course because the Police is asking for it. The
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1994 Crl LJ (Allahabad HC) 1783).
(iv) The requisite date and place for appearance must be specified in the proclamation requiring such person to appear on such date at the specified place. Such date must not be less than 30 clear days from the date of issuance and publication of the proclamation. (See Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826 and Shokat Ali Vs. State of Haryna : 2020(2) RCR (Criminal)
339).
(V) Where the period between issuance and publication of the proclamation and the specified date of hearing is less than thirty days, the accused cannot be declared a proclaimed person/offender and the proclamation has to be issued and published again.
(See Dilbagh Singh Vs. State of Punjab (P&H) :
2015 (8) R.C.R. (criminal) 166 and Ashok Kumar Vs. State of Haryana and another : 2013 (4) RCR (Criminal) 550)
(vi) The Proclamation has to be published in the manner laid down in Section 82 (2) of the Cr.P.C.. For 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 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. The three sub-clauses (a)-
(c) in Section 82 (2)(i) of the Cr.P.C. are conjunctive and not disjunctive, which means that there would be no valid publication of the proclamation unless all the three modes of publication are proved. (See Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368). Where the Court so orders a copy of the proclamation has to be additionally published in a daily newspaper circulating in the place in which the accused ordinarily resides. Advisably, proclamation has to be issued with four copies so that one each of the three copies of the proclamation may be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides, to some conspicuous place of such town or 5 of 9 ::: Downloaded on - 08-11-2020 09:31:27 ::: CRM-M-25772-2020 (O&M) -6-
village and to some conspicuous part of the Court- house and report regarding publication may be made on the fourth copy of the proclamation. Additional copy will be required where the proclamation is also required to be published in the newspaper.
(vii) Statement of the serving officer has to be recorded by the Court as to the date and mode of publication of the proclamation. (See Birad Dan Vs. State :
1958 CriLJ 965).
(viii) The Court issuing the proclamation has to make a statement in writing in its order that the proclamation was duly published on a specified day in a manner specified in Section 82(2)(i) of the Cr.P.C.. Such statement in writing by the Court is declared to be conclusive evidence that the requirements of Section 82 have been complied with and that the proclamation was published on such day. (See Birad Dan Vs. State : 1958 CriLJ 965).
(xi) The conditions specified in Section 82(2) of the Cr.P.C. for the publication of a Proclamation against an absconder are mandatory. Any non-compliance therewith cannot be cured as an 'irregularity' and renders the Proclamation and proceedings subsequent thereto a nullity. (See Devendra Singh Negi alias Debu Vs. State of U.P. and another :
1994 CriLJ 1783 and Pal Singh Vs. The State : 1955 CriLJ 318).
In the present case learned Chief Judicial Magistrate, Karnal ordered issuance of proclamation against the petitioners on application filed by the concerned SHO/IO vide order dated 02.08.2019 which reads as under:-
"Warrant of arrest of accused Inderjeet and Divay received back unexecuted. An application for issuing the proclamation U/s 82/83 Cr.P.C. against the aforesaid accused has been filed. Heard. Now, proclamation be issued against accused under Section 82/83 Cr.P.C. for 04.09.2019.
Executing constable is directed to appear in person for making his statement qua proclamation of accused." A perusal of the above quoted order shows that learned Chief Judicial Magistrate, Karnal did not record her satisfaction that in view of the material on record there was reasonable ground to believe 6 of 9 ::: Downloaded on - 08-11-2020 09:31:27 ::: CRM-M-25772-2020 (O&M) -7- that the petitioners had absconded or were concealing themselves so that warrant of arrest issued against them could not be executed. Consequently, the condition essential for issuance of proclamation against the petitioners was not satisfied. Reference in this regard may be made to Birad Dan Vs. State : 1958 CriLJ 965 and Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561.
Further, SI Dharampal who published the proclamation merely affixed one copy of the proclamation at common place and one copy of the same at notice board of the Court and did not publicly read out the same in some conspicuous place of the town/village where the petitioners ordinarily resided before absconding. Therefore, proclamation was not published as per mandatory requirements of Section 82(2)(a) of the Cr.P.C. Reliance in this regard may be placed on Emperor Vs. Subbarayar : (1895) 19 Mad 3 and Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368.
Furthermore, in the present case vide order dated 02.08.2019 proclamation was ordered to be published against the petitioners under Section 82 of the Cr.P.C. requiring the petitioners to appear before the Court on 04.09.2019. The proclamation was published by SI Dharampal on 04.09.2019 and the petitioners did not get statutory minimum period of thirty days for their appearance before the Court on 04.09.2019. Vide order dated 04.09.2019 learned Chief Judicial Magistrate, Karnal adjourned the case to 05.10.2019 for awaiting the appearance of the petitioners on the ground that statutory period of thirty days had not elapsed. Learned Chief Judicial Magistrate, Karnal could not extend the time by simply adjourning the 7 of 9 ::: Downloaded on - 08-11-2020 09:31:27 ::: CRM-M-25772-2020 (O&M) -8- case for awaiting appearance of the petitioners and was mandatorily required to issue the proclamation again for publication thereof in accordance with the provisions of Section 82(2) of the Cr.P.C.. This conclusion is supported by judicial precedent reported as Ashok Kumar Vs. State of Haryana and another : 2013 (4) RCR (Criminal)
550. It follows that the petitioners were wrongly declared proclaimed persons vide impugned order dated 05.10.2019 in breach of the prescribed procedure and impugned order dated 05.10.2019 suffers from material illegality and is liable to the set aside along with all consequential proceedings arising therefrom including FIR No.840 dated 09.12.2019 registered under Section 174-A of the IPC in Police Station Civil Lines Karnal, District Karnal on the basis thereof.
In view of the above discussion, the petition is allowed and impugned order dated 05.10.2019 passed by learned Chief Judicial Magistrate, Karnal and all subsequent proceedings arising therefrom including FIR No.840 dated 09.12.2019 registered under Section 174- A of the IPC in Police Station Civil Lines Karnal, District Karnal are quashed.
However, subject to order granting anticipatory bail, if any, passed on petition, if any, filed by the petitioners under Section 438 of the Cr.P.C., the petitioners are directed to surrender before the trial Court within fifteen days from receipt of a copy of this order and on such surrender the petitioners shall be liable to be remanded to judicial custody in case FIR No.154 dated 21.02.2019 registered under Sections 120-B, 406 and 420 of the IPC in Police Station Karnal Civil Lines, 8 of 9 ::: Downloaded on - 08-11-2020 09:31:27 ::: CRM-M-25772-2020 (O&M) -9- District Karnal in accordance with law subject to order for grant of regular bail to him.
01.10.2020 (ARUN KUMAR TYAGI)
Kothiyal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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