Punjab-Haryana High Court
Sukhmandar Singh vs State Of Punjab on 11 February, 2021
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CRM-M-26907-2020
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-26907-2020
Pronounced on: 11.02.2021
Sukhmander Singh
...Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE HARNARESH SINGH GILL
Present:- Mr. Rajesh Bhatheja, Advocate,
for the petitioner.
Mr. Sukhbeer Singh, AAG, Punjab.
HARNARESH SINGH GILL, J.
Case was taken up for hearing through video
conferencing.
This is a petition under Section 482 Cr.P.C. for
quashing of FIR No.75 dated 18.09.2013, registered at Police
Station Ajitwal, District Moga, under Section 22 NDPS Act, 1985,
and all the consequential proceedings arising therefrom, including
the order dated 09.10.2018 (Annexure P-2), declaring the
petitioner as a proclaimed offender.
The above noted FIR was registered with the allegations
that when the police party was present at bus stand, village Dhudi
Ke, in connection with patrolling and checking of suspects, two
persons had been seen coming on motor-cycle bearing Registration
No.PB-29F(T) 9122; that on seeing the police party, the driver of
the motor-cycle fled from the spot, but the pillion-rider had been
nabbed, who disclosed his identity as Sukhmander Singh (present
petitioner), and had further disclosed the name of driver as Julfi
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Khan; that after preparing consent memo signed by the accused,
the Investigating Officer had conducted the search of a polythene
bag carried by the petitioner, following which recovery of 100
pouches of Microlit tablets each containing 100 tablets, had been
effected; that one pouch of 100 tablets of Microlit was separated
out as a sample and its parcel was prepared and the residue had
been put in the same plastic bag; that both the parcels had been
sealed by the Investigating Officer with the seal bearing impression
'GS'; that thereafter, all the necessary formalities had been
completed; that on 26.09.2013, accused-Julfi Khan surrendered in
the Court and was arrested in the above-noted FIR; that during
inquiry, accused-Sukhmander Singh (petitioner) had been declared
as innocent, and that after completion of necessary investigation,
challan had been prepared and presented in the Court against co-
accused, Julfi Khan only.
While poring the record, it is axiomatic that during the
pendency of trial against the above-named co-accused, the
prosecution had moved an application under Section 319 Cr.P.C.,
wherein the trial Court, vide order dated 25.09.2017, had
summoned the petitioner as an additional accused to face the trial
alongwith the above-named co-accused under Section 22 NDPS
Act.
Charge was framed against the petitioner under the
aforesaid section, to which he pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as
many as five witnesses.
When the case was fixed for defence evidence, the
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petitioner had failed to appear before the trial Court and
accordingly, he had been declared a proclaimed offender by the
trial Court, vide order dated 09.10.2018.
After appreciating the evidence led by the parties, vide
judgment dated 17.11.2018, the trial Court had acquitted the
above-named co-accused of the charge framed against him.
Learned counsel for the petitioner made two-fold
submissions. The first and the foremost submission of the learned
counsel was that at one stage during an inquiry conducted by
DSP(H) Moga, finding no evidence against the petitioner, the police
had found him innocent. The aforesaid co-accused charged for the
similar offence, had been acquitted by the trial Court and the
evidence being the same, no useful purpose would be served by
continuing with the criminal proceedings as against the petitioner.
In this regard, he has placed reliance upon a Division Bench
judgment of this Court in Sudo Mandal @ Diwarak Mandal Vs
State of Punjab, 2011(4) RCR (Criminal) 453, and a Single Bench
judgment of this Court in Rajesh Kumar @ Billa Vs. State of
Punjab, 2019(3) RCR (Criminal) 351.
The learned counsel further contended that the trial
Court, vide order dated 05.09.2018, had issued proclamation
notice against the petitioner for 20.09.2018, which had been
received back executed with the report dated 16.09.2018. Since
the statutory period of 30 days had not elapsed, therefore,
presence of accused had been awaited for 01.10.2018.
However, no fresh proclamation was ordered to be issued.
The petitioner had not been afforded the requisite period of 30
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days for causing his appearance, after publication of the
proclamation notice. Therefore, declaring the petitioner as a
proclaimed offender is against the spirit of Section 82 Cr.P.C. and
the same is liable to be quashed. In support of his contentions,
the learned counsel relied upon Ashok Kumar Vs. State of
Haryana and another 2013 (4) R.C.R. (Criminal) 550. Otherwise,
the petitioner had no intention to abscond the trial.
E.converso, the learned State counsel has vehemently
contended that the entire case of the prosecution is based on the
judgment of Sudo Mandal's (supra). However, the judgment in the
said case based on the re-appreciation of evidence in appeal, is
distinguishable. He further contended that the trial Court had
rightly declared the petitioner as a proclaimed offender, and thus,
keeping in view the act and conduct of the petitioner, he is not
entitled to any equitable relief from this Court.
I have heard the learned counsel for the parties and
with their able assistance, have also gone through the case file.
Incontrovertibly, at one stage of the investigation,
finding no evidence against the petitioner, the police had declared
him innocent. It was, however, at a subsequent stage on an
application under Section 319 Cr.P.C., filed by the prosecution,
the petitioner had been summoned to face the trial alongwith the
co-accused. Still further, as noticed above, vide order dated
09.10.2018, the petitioner was declared as a proclaimed offender,
and that too without following the mandatory provisions in this
regard.
Vide judgment dated 17.11.2018 passed by the learned
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trial Court, the above-named co-accused stands acquitted. The
evidence being one and the same, the vehement contention of the
learned counsel for the petitioner that no useful purpose would be
served by continuing the criminal proceedings against the
petitioner, merits acceptance. It is so being observed because
there is no other evidence on record to sustain the prosecution of
the petitioner. While acquitting the co-accused, the trial Court has
recorded the detailed reasons and a perusal of the said judgment
would show that there is no adverse inference against the
petitioner except him being declared as proclaimed offender by the
trial Court.
In normal circumstances, this Court being conscious of
the fact that an accused when declared a proclaimed offender
must face the consequential proceedings. However, the fact
remains that the petitioner had been declared as proclaimed
offender without following the mandatory provisions contained in
Section 82 Cr.P.C., and doing away with such mandatory
provisions, does not stand the judicial scrutiny in view of the law
laid down by a Single Bench of this Court in Ashok Kumar's
(supra), followed by this Court in CRM-M-1056-2020, titled as
'Sachin Sharma Vs. Suraj Mal, decided on 06.10.2020.
Thus, mere fact that the petitioner stands declared as
proclaimed offender, would not be a hindrance in quashing the
proceedings against him, particularly when the co-accused already
stands acquitted by the trial Court.
The Division Bench, in the case of Sudo Mandal
(supra), held that when on the same set of evidence, the accused
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tried earned acquittal, the same benefit deserves to be given to the
absconding accused. It was held as under:-
"24. The above provisions recognize the inherent
powers of the Court to do real and substantial justice,
preventing the abuse of the process of the Court. The
statutory recognition of the inherent jurisdiction of the
criminal Court indicates that there is a power for the
criminal Courts to make such an order as may be
necessary to meet the ends of justice. We are
conscious of the fact that the powers under Section
482 of the Code of Criminal Procedure are to be
exercised very sparingly and in exceptional cases
where abuse of the process of the Court would result
in serious miscarriage of justice. The inherent powers
of the Court should not be exercised to stifle legitimate
prosecution. But at any rate the settled position is that
this Court has the jurisdiction to quash the entire
criminal proceedings to prevent the abuse of the
process of the Court in order to secure the ends of
justice. In our considered view the same inherent
powers can be exercised when this Court finds that
the innocent accused, who had absconded would
simply face the empty formality of trial with the very
same unbelievable and untrustworthy evidence, which
would ultimately lead to their acquittal. Bringing the
absconding accused to face the trial in this case in the
above facts and circumstances would amount to
abuse of the process of the Court. To secure the ends
of justice, we hereby quash the entire proceedings as
against the absconding accused namely Radha
Mandal, Rajiya Mandal and Sambodh Mandal pending
before Judicial Magistrate Ist Class,Bathinda/Sessions
Judge, Bathinda, as no useful purpose will be served
even if they are procured and ordered to face the trial
in this case."
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In the above backdrop, continuation of the criminal
proceedings against the petitioner is nothing but a futile exercise
and an empty formality. Hence, the FIR and all other
consequential proceedings arising therefrom, are liable to be
quashed qua the present petitioner as well.
Accordingly, the present petition is allowed. FIR No.75
dated 18.09.2013, registered at Police Station Ajitwal, District
Moga, under Section 22 NDPS Act, 1985, and all the consequential
proceedings arising therefrom, including the order dated
09.10.2018 (Annexure P-2), are hereby quashed.
11.02.2021 (HARNARESH SINGH GILL)
parveen kumar JUDGE
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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