Punjab-Haryana High Court
Deepak Kumar vs State Of Haryana on 22 April, 2021 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
125
CRM-M-13709-2021 (O&M)
Date of decision: 22.04.2021
Deepak Kumar …..Petitioner
Versus
State of Haryana …..Respondent
CORAM: HON’BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. R.P. Dhir, Advocate for the applicant/petitioner.
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ARUN KUMAR TYAGI, J (ORAL)
(The case has been taken up for hearing through video
conferencing.)
CRM-11077-2021
For the reasons mentioned in the application, the same is
allowed and copy of order dated 04.09.2017 passed by learned Judicial
Magistrate Ist Class, Faridabad and copy of report dated 13.10.2017 are
taken on record as Annexures P-4 and P-5.
CRM-M-13709-2021
Petitioner-Deepak Kumar 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 16.10.2017 passed by learned
Judicial Magistrate Ist Class, Faridabad in case FIR No.371 dated
30.06.2015 registered under Section 498-A read with Section 34 of the
Indian Penal Code, 1860 (for short ‘the IPC’) in Police Station Saran,
District Faridabad, whereby the petitioner was declared proclaimed
person under Section 82 of the Cr.P.C., and all consequential
proceedings arising out of the same.
Briefly stated the facts relevant for disposal of present
petition are that Bhanvi Nagpal made complaint to the Commissioner of
Police, Faridabad against her husband Deepak Kumar (the petitioner),
Neena, mother-in-law and Jatin, brother-in-law. In her complaint
Bhanvi Nagpal submitted that marriage of the complainant was
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solemnized with the petitioner on 21.02.2015. The petitioner harassed
the complainant and forced her to unnatural sex. Earlier, she submitted
application to the Dy. S.P. which was forwarded to the S.H.O. but
instead of investigating the matter the S.H.O. was forcing her to
withdraw her application. On 01.06.2015 her husband, mother-in-law
and brother-in-law asked her to withdraw her application and saying
that due to love marriage her parents did not spend too much asked her
to bring an Alto car from her father otherwise she would not be allowed
to live in the matrimonial home. In view of the complaint the above-
said FIR was registered. On failure of the petitioner to appear before the
Court despite publication of proclamation, the petitioner was declared
proclaimed person vide order dated 16.10.2017.
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.
Pursuant to supply of advance notice, Mr. Kirpal Singh
Thakur, Asstt. A.G. Haryana 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
16.10.2017 in breach of the prescribed procedure. The petitioner was
not given 30 days time for his appearance before the Court. The
proclamation was not publicly read in some conspicuous place of the
town where the petitioner was residing. Therefore, the impugned order
and all subsequent proceedings arising out of the same may be quashed.
In support of his arguments learned Counsel for the petitioner placed
reliance on the observations in Harvinder Singh Vs. State of Haryana
and another : 2021 (1) RCR (Criminal) 493.
On the other hand, learned State Counsel has submitted
that the petitioner absconded and was declared proclaimed person vide
order dated 16.10.2017 after expiry of the period of 30 days from
publication of the proclamation. The impugned order does not suffer
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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
the relevant record, I am of the considered view that the impugned
order dated 16.10.2017 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
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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
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
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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).
(xi) The conditions specified in Section 82(2) of the
Cr.P.C. for the publication of a Proclamation against
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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
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.
In Harvinder Singh Vs. State of Haryana and another :
2021 (1) RCR (Criminal) 493 where proclamation was not publicly
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read out in some conspicuous place in village where the petitioner
ordinarily resided, it was held that essential condition laid down in
Section 82(2)(i)(a) of the Cr.P.C. as to mode of publication of the
proclamation was not complied with and the order declaring the
petitioner as proclaimed person and all consequential proceedings were
quashed.
The facts of the present case are similar to those of the
cases referred above. In the present case vide order dated 04.09.2017
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 16.10.2017. The proclamation was published on 13.10.2017.
The petitioner was not given statutory minimum period of thirty days
from 13.10.2017, the date of publication of the proclamation issued in
terms of order dated 04.09.2017, till 16.10.2017 the date fixed for his
appearance before the Court. Further, a perusal of the report dated
13.10.2017 of ASI Balwan Singh shows that the proclamation was not
publicly read in some conspicuous place of the town in which the
petitioner ordinarily resided. It follows that the petitioner was wrongly
declared proclaimed person vide impugned order dated 16.10.2017 in
breach of the prescribed procedure so that the impugned order dated
16.10.2017 suffers from material illegality and is liable to be quashed.
In view of the above discussion, the petition is allowed and
impugned order dated 16.10.2017 passed by learned Judicial Magistrate
Ist Class, Faridabad in case FIR No.371 dated 30.06.2015 registered
under Section 498-A read with Section 34 of the IPC in Police Station
Saran, District Faridabad is quashed along with all consequential
proceedings arising out of the same.
However, the petitioner is directed to surrender before the
trial Court within four weeks and on such surrender, subject to order, if
any, for grant of anticipatory bail, the petitioner shall be liable to be
remanded to judicial custody in case FIR No.371 dated 30.06.2015
registered under Section 498-A read with Section 34 of the IPC in
Police Station Saran, District Faridabad in accordance with law. On
surrender the petitioner shall be entitled to apply to the trial Court for
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grant of regular bail and the trial Court shall be bound to dispose of the
same expeditiously in accordance with law.
However, nothing in this order shall be treated as
expression of any opinion on merits so as to bind or influence the trial
Court in disposal of the petition for grant of regular bail or the case on
merits.
22.04.2021 (ARUN KUMAR TYAGI)
kothiyal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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