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Punjab-Haryana High Court
Gurpreet Singh Alias Gopi vs State Of Punjab And Another on 9 March, 2021 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
123
CRM-M-6856-2021(O&M)
Date of decision: 09.03.2021

GURPREET SINGH ALIAS GOPI …..Petitioner

Versus

STATE OF PUNJAB AND ANOTHER …..Respondents

CORAM: HON’BLE MR. JUSTICE ARUN KUMAR TYAGI

Present : Mr. Jaspal Singh Guru, Advocate
for the applicant-petitioner.

****

ARUN KUMAR TYAGI, J (ORAL)

(The case has been taken up for hearing through video

conferencing.)

CRM-7123-2021

For the reasons mentioned in the application, the same is

allowed and copies of proclamation dated 05.05.2014 issued by learned

Judicial Magistrate First Class, Nakodar, report dated 17.05.2014

(sic 11.05.2014), statement of HC Prem Chand No.405/Mehatpur dated

29.05.2014, non-bailable warrant of arrest dated 30.09.2013, report

dated 12.10.2013, non bailable warrant of arrest dated 29.11.2013 and

report dated 05.12.2013 are taken on record as Annexures P-11 to P-18.

CRM-M-6856-2021

Petitioner-Gurpreet Singh alias Gopi 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 28.07.2014 passed

by learned Judicial Magistrate First Class, Nakodar in case FIR No.113

dated 11.09.2012 registered under Section 307 of the Indian Penal

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Code, 1860 (for short ‘the IPC’) and Sections 25 of the Arms Act, 1959

at Police Station Mehatpur, District Jalandhar, 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 the above-said FIR was registered on complaint of

Kuldeep Singh. In his complaint Kuldeep Singh alleged that on

10.09.2012 at about 8 P.M. he shuttered down his shop, told his brother

Mohan Singh that he was going to have a haircut and went to Tej Hair

Cutting. At about 8:10 p.m. a young clean shaven boy came, took out

revolver from his waist and shot at him. Thereafter, the assailant fled

from the spot and sat in the white car in which some unidentified

persons were also sitting.

On failure of the petitioner to appear before the Court

despite publication of proclamation, the petitioner was declared

proclaimed person vide order dated 28.07.2014.

Feeling aggrieved from the above-said order the petitioner

has filed the present petition for quashing of the same along with all

consequential proceedings.

Pursuant to advance notice, Mr. P.S. Walia, Asstt. A.G.

Punjab has appeared and opposed the petition. However, no reply has

been filed by respondent No.1-State.

Notice to respondent No.2-complainant is considered to be

unnecessary and is accordingly dispensed with.

I have heard learned Counsel for the petitioner and learned

State Counsel and have gone through the record.

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Learned Counsel for the petitioner has submitted that the

petitioner was wrongly declared proclaimed person vide order dated

28.07.2014 in breach of the prescribed procedure. The petitioner was

not given thirty days time for his appearance before the Court.

Therefore, 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 petitioner absconded and was declared proclaimed person vide

order dated 28.07.2014 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

the relevant record, I am of the considered view that the impugned

order dated 28.07.2014 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

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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
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.
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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) :
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

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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
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

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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.

The facts of the present case are similar to those of the

cases referred above. In the present case vide order dated 05.05.2014

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 29.05.2014. The proclamation was published on 11.05.2014.

The petitioner was not given statutory minimum period of thirty days

from 11.05.2014 the date of publication of the proclamation issued in

terms of order dated 05.05.2014 for his appearance before the Court on

29.05.2014. Vide order dated 29.05.2014 learned Judicial Magistrate

First Class, Nakodar adjourned the case for awaiting the appearance of

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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 28.07.2014. Learned Judicial Magistrate First Class, Nakodar

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

28.07.2014 in breach of the prescribed procedure and impugned order

dated 28.07.2014 suffers from material illegality and is liable to be

quashed.

In view of the above discussion, the petition is allowed and

impugned order dated 28.07.2014 passed by learned Judicial Magistrate

First Class, Nakodar in case FIR No.113 dated 11.09.2012 registered

under Section 307 of the IPC and Sections 25 of the Arms Act, 1959 at

Police Station Mehatpur, District Jalandhar is quashed along with all

consequential proceedings arising out of the same.

However, subject to order of anticipatory bail, if any,

passed on petition, if any, filed by the Petitioner-Gurpreet Singh alias

Gopi under Section 438 of the Cr.P.C., the petitioner is directed to

surrender before the trial Court within four weeks and on such

surrender the petitioner shall be liable to be remanded to judicial

custody in case FIR No.113 dated 11.09.2012 registered under Section

307 of the Indian Penal Code, 1860 (for short ‘the IPC’) and Section 25

of the Arms Act, 1959 at Police Station Mehatpur, District Jalandhar in

accordance with law. For the sake of abundant caution it is clarified

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that in case of remand to judicial custody the petitioner shall be entitled

to apply to the concerned Court for grant of regular bail and the

concerned Court shall be bound to dispose of the same expeditiously in

accordance with law and 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.

09.03.2021 (ARUN KUMAR TYAGI)
Vishal JUDGE

Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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