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Punjab-Haryana High Court
Anita Sharma vs State Of Punjab on 26 March, 2021 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
130
CRM-M-14209-2021
Date of decision: 26.03.2021
Anita Sharma …..Petitioner
Versus
State of Punjab …..Respondent
CORAM: HON’BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Gursimran Singh Madaan, Advocate
for the petitioner.
****
ARUN KUMAR TYAGI, J (ORAL)
(The case has been taken up for hearing through video
conferencing.)
Petitioner-Anita Sharma has filed present petition under
Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the
Cr.P.C.’) for quashing of order dated 16.03.2020 passed by learned
Judicial Magistrate 1st Class, Jalandhar in case FIR No.74 dated
20.06.2019 registered under Sections 406, 420 and 120-B of the Indian
Penal Code, 1860 (for short ‘the IPC’), Section 24 of the Immigration
Act and Section 13 of the Punjab Travel Professionals Regulation Act,
2014 at Police Station Navi Baradari Jalandhar, whereby the petitioner
was declared proclaimed person under Section 82 of the Cr.P.C., and all
consequential proceedings arising therefrom.
Briefly stated the facts relevant for disposal of present
petition are that the above-said FIR was registered on complaint of
Baljit Singh. In his complaint Baljit Singh alleged that accused Anita
Sharma (the petitioner) along with her husband Kapil Sharma cheated
and defrauded the complainant for an amount of Rs.11 lakhs on the
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pretext of sending him abroad.
On failure of the petitioner to appear before the Court
despite publication of proclamation, the petitioner was declared
proclaimed person vide order dated 16.03.2020.
Feeling aggrieved from the above-said order, the petitioner
has filed the present petition for quashing of the same along with all
consequential proceedings arising therefrom.
Notice of motion.
Pursuant to advance notice, Mr. Sarabjit Singh Cheema,
Assistant A.G., Punjab has appeared and opposed the petition.
However, no reply has been filed by the 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
16.03.2020 in breach of the prescribed procedure. The petitioner was
not given thirty days time for her appearance before the Court.
Therefore, the impugned order and all consequential proceedings
arising therefrom may be quashed.
On the other hand, learned State Counsel has submitted
that the petitioner absconded and was rightly declared proclaimed
person vide order dated 16.03.2020 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.
On consideration of the submissions made by learned
Counsel for the petitioner and learned State Counsel and on perusal of
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the relevant record, I am of the considered view that the impugned
order dated 16.03.2020 suffers from material illegality and is liable to
be quashed with all consequential proceedings arising therefrom.
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
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
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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
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) :
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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).
(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
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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
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
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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 03.01.2020
proclamation was ordered to be published against the petitioner under
Section 82 of the Cr.P.C. requiring the petitioner to appear before the
Court on 24.02.2020. The proclamation was published on 03.02.2020.
The petitioner was not given statutory minimum period of thirty days
from 03.02.2020 the date of publication of the proclamation issued in
terms of order dated 03.01.2020 for her appearance before the Court on
24.02.2020. Vide order dated 24.02.2020 learned Judicial Magistrate
1st Class, Jalandhar adjourned the case for awaiting the appearance of
the petitioner on the ground that statutory period of thirty days had not
elapsed and declared the petitioner to be proclaimed person vide order
dated 16.03.2020. Learned Judicial Magistrate 1st Class, Jalandhar
could not extend the time by simply adjourning the case 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. It follows that the petitioner
was wrongly declared proclaimed person vide impugned order dated
16.03.2020 in breach of the prescribed procedure and impugned order
dated 16.03.2020 suffers from material illegality and is liable to be
quashed.
In view of the above discussion, the petition is allowed and
impugned order dated 16.03.2020 passed by learned Judicial Magistrate
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1st Class, Jalandhar in case FIR No.74 dated 20.06.2019 registered
under Sections 406, 420 and 120-B of the IPC and Section 24 of the
Immigration Act and Section 13 of the Punjab Travel Professionals
Regulation Act, 2014 at Police Station Navi Baradari Jalandhar is
quashed along with all consequential proceedings arising therefrom.
However, the petitioner is directed to surrender before the
Court concerned in case FIR No.74 dated 20.06.2019 registered under
Sections 406, 420 and 120-B of the IPC and Section 24 of the
Immigration Act and Section 13 of the Punjab Travel Professionals
Regulation Act, 2014 at Police Station Navi Baradari Jalandhar within
four weeks, subject to order for grant of anticipatory bail, if any passed
on her petition to be filed under Section 438 of the Cr.P.C. In the
absence of any order for grant of anticipatory bail and on such
surrender, the petitioner shall be liable to be remanded to judicial
custody subject to any order for grant of regular bail to be passed by the
concerned Court in accordance with law.
Needless to observe that in case any application is filed
before the concerned Court for grant of regular bail, then the concerned
Court shall be bound to dispose of the same expeditiously and that
nothing in this order shall be treated as expression of any opinion on
merits so as to bind or influence the concerned Court in disposal of the
same.
26.03.2021 (ARUN KUMAR TYAGI)
Vinay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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