Indian Kanoon - Search engine for Indian Law

2. Mr. Dayan Krishnan, learned Additional Standing Counsel (Criminal) for the State submits that respondent No. 1 is already an accused in FIR No.380/2008 under Section 21 of NDPS Act, Police Station, Connaught Place, New Delhi and in the said case also, respondent No. 1 has not been appearing and consequently the proceedings under Section 82 of Criminal Procedure Code, 1973(hereinafter referred to as the "Cr.P.C.") for declaring him a proclaimed offender have been initiated by the learned trial court. Learned Additional Standing counsel (Crl.) for State submits that the State has made all efforts to trace him which includes circulation of his photographs to all the beat staff and the secrete informers. Further the search of respondent No. 1 has also been carried at several places like Palika Bazar, Hanuman Mandir, Bangla Saheb Gurudwara, New Delhi Railway Station. However, despite best efforts, his whereabouts could not be ascertained.

ii) Crl.A.506-2003 State v. Shamshad In this case, after issuance of show cause as to why leave to appeal should not be granted even though the respondent was not reported as served, Counsel appeared on 23rd April, 2002 and entered appearance on behalf of the respondent. Subsequently, the counsel did not appear and the delay in filing of the appeal was condoned and leave to appeal was also granted. Directions were issued to the respondent to furnish bond for appearance. An application was moved on behalf of the respondent for recalling the order of grant of leave to appeal and condoning the delay. This application was dismissed. Non-bailable warrants were issued and respondent after grant of leave was not served with the notice of actual date of hearing of the appeal. This would be a case where the counsel entered appearance and took positive steps by seeking to have the order of grant of leave recalled but failed. This case thus cannot be treated at par with cases where the respondent/accused has not been served. Respondent having full knowledge of the leave to appeal, opposed the grant of leave to appeal and sought to have the order recalled. This is a case where the respondent/accused appeared in appeal proceedings and presented himself at the stage prior to and after grant of leave. He had knowledge of the appeal and is keeping himself away. The proceedings for declaring him a proclaimed offender can be resorted to and after the same, the court can appoint an amices Curiae to represent his interest and proceed with the matter based on the decision of the Supreme Court in Rambachan Hardwar v. The State of Gujarat (supra).

13. In Ram Chand Hardwar (supra), the accused challenged the decision of the High Court because the High Court had appointed amicus curiae to represent the accused, as the accused had failed to appear in the appeal even after the notice was served upon him. In that case the High Court did not take any step to first direct the proceeding for declaring such an accused as a proclaimed offender.

14. We are also of the view that so far as the initiation of the proceeding for declaring accused, a proclaimed offender, is concerned, the same can be resorted to, after the High Court accepts the state appeal and set aside the order of acquittal and before that stage if for any reasons the accused, after being served, fails to appear, the High Court can proceed to appoint an amicus curiae to represent him in the appeal and then decide the case on merits.

15. So far as the cases where leave to appeal is preferred by the State against the order of acquittal and the court after hearing the preliminary arguments of the state counsel and on examination of the Trial Court record, finds that the case deserves issuance of show cause notice to the respondent(s), it shall direct the state to make all attempts to serve notice to the respondent(s) in terms of the address furnished by the respondent(s) in his bail bond. Where such an appeal is preferred against a judgment passed by the Sessions Court after the introduction of Section 437-A of the Cr.P.C. and the respondent does not cause an appearance despite the steps taken in this regard, a notice shall also be directed by the court to the sureties as per address disclosed by the sureties in the bond furnished by them before the Sessions Court. In all such cases, if the respondent is not served despite the efforts made by the State, the court shall adjourn such appeals sine die while directing the learned Trial Court to initiate the proceedings for declaring the respondent, a proclaimed offender, in terms of Sections 82-83 of the Cr.P.C. Further, even after, adjourning such appeals sine die and declaring the respondent, a proclaimed offender, the State shall continue to make all possible efforts to trace the respondent and shall not sit silent by the mere fact that their job is over after such a person has been declared as a proclaimed offender.