Delhi High Court
Munnawar Hasan vs State Of Nct Of Delhi on 30 April, 2013
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.Rev.P.44/2013
MUNNAWAR HASAN .....Petitioner
Through: Mr. Sudarshan Rajan &
Mr. Mohd. Qamar, Advocates
Versus
STATE OF NCT OF DELHI ....Respondent
Through: Mr. Sunil Sharma, Additional
Public Prosecutor
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
% ORDER
30.04.2013
1. In FIR No.168/2008 State v. Israr etc., petitioner-accused was
declared as proclaimed offender on 17th September, 2008 and upon being
apprehended on 24th February, 2009, he was charge-sheeted for the
offence under Section 174A of IPC. Impugned order of 19th September,
2012 directing framing of charge under Section 174A of IPC and an
additional charge framed on 25th September, 2012 for the aforesaid
offence are assailed in this petition.
2. Learned counsel for petitioner had contended that proceedings
under Section 82 of Cr.P.C. stood vitiated as proclamation was issued on
10th July, 2008 for appearance of petitioner by 31st July, 2008 whereby
giving 21 days' time whereas mandatory period is of 30 days'.
Crl. Rev.P.44/2013 Page 1
Petitioner's counsel had asserted that the mandate of Section 82 of
Cr.P.C. stood vitiated as the proclamation was not read aloud in the
locality. According to petitioner's counsel, no charge under Section
174A of IPC can be framed against petitioner due to violation of
mandatory provision of Section 82 of Cr.P.C. and so, impugned order
and the charge framed in pursuance to it deserve to be set aside. In
support of above submission reliance was placed by petitioner's counsel
upon decisions in Rohit Kumar alias Raju v. State of NCT Delhi & Anr.
2008 CRL.L.J. 3561; Maneesh Goomer v. State 2012 [1] JCC 465 &
Sunil Kumar v. State and another 2002 CRL. L.J. 1284.
3. Learned Additional Public Prosecutor for Respondent-State
supported the impugned order and had submitted that failure to read out
the proclamation in the locality does not amount to violation of
mandatory provision of Section 82 of Cr.P.C. and is a mere irregularity
which stands cured as the proclamation was pasted outside the house of
petitioner-accused and the period of 21 days' given to petitioner-accused
to appear instead of 30 days' is a bona-fide technical error from which
petitioner-accused cannot derive any undue benefit as it is not the case of
petitioner that he had appeared before the court within 30 days' of the
proclamation. To point out that Section 82 (1) of Cr.P.C. is not
mandatory but is directory, reference was made to a decision in K. Rama
Krisha v. State of A.P. 2011 (1) Crimes 551 (Ker.).
4. After having heard both the sides and on perusal of the impugned
order and decisions cited as well as the record of this case, it transpires
that the object and purpose of Section 82 of Cr.P.C. is to secure presence
Crl. Rev.P.44/2013 Page 2
of accused. Failure to read out the proclamation in the locality does not
result in miscarriage of justice as the proclamation was pasted outside
the house of petitioner-accused. So, on account of this technical lapse,
initiation of proceedings under Section 174A of IPC cannot be thwarted
as at this initial stage, a prima facie case only is to be seen and
meticulous examination is not to be done as the same is required to be
done at the final hearing.
5. The pertinent observations made by Andhra Pradesh High Court in
K. Rama (supra) are as under: -
"Due to failure of giving 30 days time as
contemplated under Section 82 Cr.P.C., the petitioner
did not suffer any prejudice nor injustice. "
6. Aforesaid observations reflect the current judicial trend which
appeals to reason and therefore, this Court is not inclined to adopt a
hyper technical view of infringement of Section 82 of Cr.P.C. as adopted
in the decisions relied upon by petitioner. Since it is not the case of
petitioner that he wanted to surrender on the 30th day of proclamation,
but could not do so because 21 days' time instead of 30 days' time was
given, therefore, prima facie petitioner suffers no prejudice.
7. Suffice it would be to say that though Section 82 (1) of Cr.P.C. is
of mandatory nature but its literal compliance would defeat the purpose
of this provision and so, prevalent judicial ethos certainly requires that
substantial compliance of mandatory provision, like the instant one, has
to be made. Prima facie it appears that the provision of Section 82 of
Cr.P.C. stands substantially complied with. Thus, finding no illegality or
Crl. Rev.P.44/2013 Page 3
infirmity in the impugned order, I dismiss this revision petition while
refraining to comment upon the merits of this case lest it may prejudice
petitioner at trial.
(SUNIL GAUR)
JUDGE
APRIL 30, 2013
s
Crl. Rev.P.44/2013 Page 4
