Document Fragment View
Fragment Information
Showing contexts for: proclamation crpc in Kapil Kumar vs State on 7 March, 2022Matching Fragments
9. Mr. Vikas Pahwa, learned Senior Counsel for the Petitioner in CRL.M.C. 2053/2019, submits the impugned Order declaring the Petitioner as a Proclaimed Offender is bad in law as the offences against the Petitioner do not fall under the IPC Sections stipulated under Section 82(4) Cr.P.C. He submits that there is a stark difference between declaring an individual as a Proclaimed Person under Section 82(1) Cr.P.C. and declaring one as a Proclaimed Offender under Section 82(4) Cr.P.C. as different consequences to the same are enumerated in Section 174A IPC. To substantiate this argument, Mr. Pahwa has relied upon Rishabh Sethi v. State of Rajasthan and Ors., (Petition No. 5767/2017) and Sanjay Bhandari v. State (NCT of Delhi), (2018 SCC OnLine Del 10203). He submits that Section 174A IPC states that non-appearance with regard to a proclamation under Section 82(1) Cr.P.C. entails imprisonment for a term which may extend to three years or with fine or with both, and non-appearance with regard to a proclamation under Section 82(4) Cr.P.C. entails imprisonment for a term which may extend to seven years as well as a fine.
(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)."
21. The entirety of Section 82 Cr.P.C. stipulates when a proclamation can be issued when a person is absconding as well as the manner in which the said proclamation can be issued. Section 82(1) Cr.P.C. states that if any Court has a reason to believe that a person against whom a warrant has been issued is absconding or has concealed himself so as to ensure that the warrant may not be executed, then the Court may publish a written proclamation requiring the person to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation. Section 82(2) and Section 82(3) Cr.P.C. stipulate the manner in which such proclamation must be published.
i. Declaration of proclaimed offender can only be done with respect to the specific offences stipulated under Section 82(4) Cr.P.C., i.e. Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 400, 402, 436, 449, 459 or 460 IPC. ii. Penal consequences for non-appearance in response to a proclamation issued under Section 82 Cr.P.C. are stipulated under Section 174A IPC. While the punishment for failing to appear in response to a proclamation under Section 82(1) Cr.P.C. is imprisonment for a term which may extend to three years or with fine or with both, the punishment for failing to appear in response to a proclamation under Section 82(4) Cr.P.C. is imprisonment for a term which may extend to seven years and shall also be liable to a fine.
26. Furthermore, the contention on behalf of the Petitioners that the Ld. Magistrate could only declare the Petitioners as Proclaimed Persons and not Proclaimed Offenders as the offences against them did not fall within the contours of the specific offences mentioned under Section 82(4) Cr.P.C. also does not hold any water. At best, it can be stated that the usage of the term "Proclaimed Offender" by the I.O. and the Ld. Magistrate is a misnomer. Procedural law is touted as the hand maiden of justice and this Court does not deem it fit to exercise its jurisdiction under Section 482 Cr.P.C. in the instant case to set aside the impugned Orders dated 15.12.2017 and 16.03.2018 as the same would amount to allowing a slight technicality to defeat the substantive matter at hand. Therefore, the reference to the judgment of this Court in Sanjay Bhandari v. State (NCT of Delhi) is not relevant in the matter before this Court as the distinction between a proclamation under Section 82(1) Cr.P.C. and Section 82(4) Cr.P.C. is not in dispute before this Court. As the procedure itself has been followed by the I.O. as well as the Ld. Magistrate under Section 82 Cr.P.C., this Court does not find any procedural irregularity that may substantiate the submissions of the learned Counsels appearing for the Petitioners, thereby necessitating the setting aside of the impugned Orders.