Punjab-Haryana High Court
Davinder Singh Chawla And Anr vs State Of Haryana And Anr on 9 April, 2021 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
134 (3)
CRM-M-15728-2021
Date of decision: 09.04.2021
DAVINDER SINGH CHAWLA AND ANOTHER …..Petitioners
Versus
STATE OF HARYANA AND ANOTHER …..Respondent
CORAM: HON’BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Kunal Dawar, Advocate
for the petitioners.
****
ARUN KUMAR TYAGI, J (ORAL)
(The case has been taken up for hearing through video
conferencing.)
Petitioners-Davinder Singh Chawla and Raman Preet
Kaur have filed present petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) for quashing of order
dated 09.11.2017 passed by learned Judicial Magistrate First Class,
Gurugram in complaint case NACT No. 5564 of 2016 titled as
‘Indiabulls Housing Finance Ltd. vs Kirat Hotels Pvt. Ltd.’ under
Section 25 the Payment and Settlement Systems Act, 2007 read with
Section 357 of the Cr. P.C. (whereby the petitioners were declared
proclaimed persons under Section 82 of the Cr.P.C.) and all
consequential proceedings arising out of the same.
Briefly stated that the facts giving rise to filing of the
present petition are that respondent No.2 filed complaint under section
25 of the Payment and Settlement Systems Act, 2007 as amended upto
date read with Section 357 of the Cr.P.C. The petitioners were
summoned to face trial for commission of the above said offence. On
failure to appear in the case, the petitioners were declared proclaimed
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persons vide order dated 09.11.2017.
Feeling aggrieved from the above-said order the petitioners
have filed the present petition for quashing of the same along with all
consequential proceedings.
Pursuant to supply of advance copy of the petition, Mr.
Ranvir Singh Arya, Addl. A.G. Haryana has appeared and accepted
notice on behalf of respondent No.1-State.
In view of nature of relief sought issuance of notice to
respondent No.2 is considered to be unnecessary.
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 wrongly declared proclaimed person vide order dated
09.11.2017 in breach of the prescribed procedure as the petitioners
were 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.
On the other hand, learned State Counsel has submitted
that the petitioners absconded and were declared proclaimed persons
vide order dated 09.11.2017 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 petitioners 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 09.11.2017 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
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 13.09.2017
proclamation under Section 82 of the Cr.P.C. was ordered to be
published against the petitioners requiring the petitioners to appear
before the Court on 09.10.2017. The proclamation was published on
16.09.2017. The petitioners were not given statutory minimum period
of thirty days from 16.09.2017 (the date on which the proclamation
issued in terms of order dated 13.09.2017 was published) till
09.11.2017 (the date fixed for his appearance before the Court).
Learned Judicial Magistrate First Class, Gurugram vide order dated
09.10.2017 adjourned the case to 09.11.2017 for awaiting the
appearance of the petitioners on the ground that statutory period of
thirty days had not elapsed and vide order dated 09.11.2017 declared
the petitioners to be proclaimed person. Learned Judicial Magistrate
First Class, Gurugram could not extend the time to complete the period
of thirty days by simply adjourning the case on 09.10.2017 to
09.11.2017 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. by giving thirty days time to the petitioners from the date of
publication of the proclamation till the date fixed for his appearance
before the Court. The learned Judicial Magistrate First Class, Gurugram
failed to do so. It follows that the petitioners were wrongly declared
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proclaimed person vide impugned order dated 09.11.2017 in breach of
the prescribed procedure and impugned order dated 09.11.2017 suffers
from material illegality and is liable to be quashed.
In view of the above discussion, the petition is allowed and
impugned order dated 09.11.2017 passed by learned Judicial Magistrate
First Class, Gurugram in complaint case NACT No. 5564 of 2016 titled
as ‘Indiabulls Housing Finance Ltd. vs Kirat Hotels Pvt. Ltd.’ under
Section 25 of the Payment and Settlement Systems Act, 2007 read with
Section 357 of the Cr. P.C. is quashed along with all consequential
proceedings arising out of the same.
However, the petitioners are directed to surrender before
learned Judicial Magistrate First Class, Gurugram 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.
09.04.2021 (ARUN KUMAR TYAGI)
Vishal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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