Punjab-Haryana High Court
Manpreet Singh vs State Of Punjab on 8 April, 2021
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
140
CRM-M-15619-2021
Date of decision: 08.04.2021
MANPREET SINGH .....Petitioner
Versus
STATE OF PUNJAB .....Respondent
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Sandeep Singh, Advocate
for the petitioner.
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ARUN KUMAR TYAGI, J (ORAL)
(The case has been taken up for hearing through video conferencing.) Petitioner-Manpreet Singh has filed present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for quashing of FIR No.31 dated 06.02.2021 registered under Sections 174-A of the Indian Penal Code, 1860 (for short 'the IPC') at Police Station Lehra, District Sangrur.
Briefly stated the facts giving rise to filing of the present petition are that complainant Veerpal Kaur lodged FIR No. 145 dated 15.10.2016 under Section 498-A and 406 of the IPC at Police Station Lehra District Sangrur alleging that her husband Gursewak Singh and her father in law Nirmal Singh and mother in law Manjeet Kaur subjected her to cruelty with regard to fulfillment of dowry demands and her stridhan articles. During trial statement of the complainant was recorded. After recording of her statement application under Section 319 of the Cr.P.C. was filed for summoning of the petitioner as an additional accused which was allowed vide order dated 15.05.2018. On failure to appear before the Court the petitioner was declared 1 of 8 ::: Downloaded on - 05-06-2021 04:47:04 ::: CRM-M-15619-2021 -2- proclaimed person vide order dated 16.10.2019 and impugned FIR was registered against him in compliance thereof.
Feeling aggrieved from the above-said order the petitioner has filed the present petition for quashing of the above said FIR along with all consequential proceedings.
Pursuant to advance notice, Mr. Rana Harjasdeep Singh, DAG, Punjab has appeared and opposed the petition. However, no reply has been filed by respondent-State.
I have heard learned Counsel for the petitioner and learned State Counsel and have gone through the record.
Learned Counsel for the petitioner has submitted that the petitioner was wrongly declared proclaimed person vide order dated 16.10.2019 in breach of the prescribed procedure as the petitioner was not given thirty days time for his appearance before the Court from the date of publication of proclamation till the date fixed for appearance. Therefore, the impugned order suffers from material illegality and the impugned order and all subsequent proceedings arising out of the same may be quashed.
In support of his submissions learned counsel for the petitioner has sent copies of orders dated 05.08.2019 and 25.09.2019 which are taken on record.
On the other hand, learned State Counsel has submitted that the petitioner absconded and was declared proclaimed person vide order dated 16.10.2019 after expiry of the period of 30 days from publication of the proclamation. The impugned order does not suffer from any illegality and the petition may be dismissed.
2 of 8 ::: Downloaded on - 05-06-2021 04:47:05 ::: CRM-M-15619-2021 -3- On consideration of the submissions made by learned Counsel for the petitioner and learned State Counsel and on perusal of the relevant record, I am of the considered view that the impugned order dated 16.10.2019 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 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.
(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
3 of 8 ::: Downloaded on - 05-06-2021 04:47:05 ::: CRM-M-15619-2021 -4- 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 Court must be prima facie satisfied that the person has absconded or is concealing himself so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence. (See Bishundayal Mahton and others Vs. Emperor :
AIR 1943 Patna 366 and Devender Singh Negi Vs. State of U.P. : 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
4 of 8 ::: Downloaded on - 05-06-2021 04:47:05 ::: CRM-M-15619-2021 -5- 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 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).
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(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 Dilbagh Singh Vs. State of Punjab (P&H) : 2015 (8) R.C.R. (criminal) 166 it was held by this Court that in order to ensure that an accused should have a fair opportunity to appear, 30 days clear notice is necessary and the proclamation should be published in the manner provided by law. In that case, proclamation of the petitioner was issued on 20.08.2014 for 23.08.2014 and vide impugned order dated 25.09.2014 the petitioner was declared proclaimed offender.
Clear notice of 30 days as mandated under Section 82 of the Cr.P.C.
was not given to the petitioner and the procedure for publication of the proclamation was also not followed. The petitioner was held to have been wrongly declared a proclaimed offender and the impugned order was quashed.
In Ashok Kumar Vs. State of Haryana and another :
2013 (4) RCR (Criminal) 550 the case was adjourned by the trial Court vide order dated 04.01.2013 for issuance of proclamation under Section 82 of the Cr.P.C. for 06.03.2014 but period of 30 days had not elapsed from the date of publication till 06.03.2014. On that date case was adjourned to 13.03.2014 on which date the petitioner was declared as proclaimed offender. It was held by this Court that the proclamation was not published in accordance with the procedure prescribed under Section 82(1) of the Cr.P.C. by giving mandatory period of 30 days
6 of 8 ::: Downloaded on - 05-06-2021 04:47:05 ::: CRM-M-15619-2021 -7- from the date of publication of the proclamation till the date of hearing fixed in the case for appearance of the petitioner and that the mere fact that on 06.03.2014 the Court adjourned the case to 13.03.2014 for completing the period of 30 days could not be treated as compliance of the provisions of Section 82(1) of the Cr.P.C. Accordingly, the order declaring the petitioner as proclaimed offender was set aside.
The facts of the present case are similar to those of the cases referred above. In the present case vide order dated 05.08.2019 proclamation under Section 82 of the Cr.P.C. was ordered to be published against the petitioner requiring the petitioner to appear before the Court on 25.09.2019. The proclamation was published on 16.09.2019. The petitioner was not given statutory minimum period of thirty days from 16.09.2019, the date on which the proclamation issued in terms of order dated 05.08.2019 was published, till 25.09.2019, the date fixed for his appearance before the Court. Learned Judicial Magistrate First Class, Moonak vide order dated 25.09.2019 adjourned the case to 16.10.2019 for awaiting the appearance of the petitioner on the ground that statutory period of thirty days had not elapsed and vide order dated 16.10.2019 declared the petitioner to be proclaimed person. Learned Judicial Magistrate First Class, Moonak could not extend the time to complete the period of thirty days by simply adjourning the case on 25.09.2019 to 16.10.2019 for awaiting appearance of the petitioner 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. by giving thirty days time to the petitioner from the date of publication of the proclamation till the date fixed for his appearance 7 of 8 ::: Downloaded on - 05-06-2021 04:47:05 ::: CRM-M-15619-2021 -8- before the Court. The learned Judicial Magistrate First Class, Moonak failed to do so. It follows that the petitioner was wrongly declared proclaimed person vide impugned order dated 16.10.2019 in breach of the prescribed procedure and impugned order dated 16.10.2019 suffers from material illegality and is liable to be quashed.
In view of the above discussion, the petition is allowed and impugned order dated 16.10.2019 passed by learned Judicial Magistrate First Class, Moonak in case FIR No.145 dated 15.10.2016 registered under Sections 498-A and 406 of the IPC at Police Station Lehra, District Sangrur and FIR No.31 dated 06.02.2021 registered under Section 174-A of the IPC at Police Station Lehra, District Sangrur on the basis thereof are quashed along with all consequential proceedings arising out of the same.
However, the petitioner is directed to surrender before learned Judicial Magistrate First Class, Moonak in case FIR No.145 dated 15.10.2016 registered under Sections 498-A and 406 of the IPC at Police Station Lehra, District Sangrur within four weeks and on such surrender shall be liable to be remanded to Judicial Custody, subject to order for grant of anticipatory/regular bail, if any.
08.04.2021 (ARUN KUMAR TYAGI)
Vishal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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