Punjab-Haryana High Court
Chimniwala Fatema Abdulkadir vs State Of Ut Chandigarh on 18 December, 2023
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129 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-63700-2023
Date of decision: 18.12.2023
Chimniwala Fatema Abdulkadir ....Petitioner
Versus
State of U.T. Chandigarh ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. A.S. Nirmaan, Advocate
for the petitioner.
Mr. C.S. Bakhshi, Addl.P.P.,
for the respondent-U.T. Chandigarh.
HARPREET SINGH BRAR, J. (ORAL)
The prayer in the present petition under Section 482 Cr.P.C. is for
quashing of impugned order dated 28.04.2023 (Annexure P-11) passed by the
learned Chief Judicial Magistrate, Chandigarh, arising out of the FIR No.0276
dated 24.10.2019 under Sections 420/120-B of IPC registered at Police Station
Industrial Area, Chandigarh (Annexure P-1) vide which the petitioner was
declared as proclaimed offender.
2. Brief facts of the case are that the petitioner was just an employee
in the Air Wings Aviation Academy and she never had any sort of interaction
with the clients of the Company with regard to the process of their visa. She
never handled the finances of the Company and her role was just of an English
Teacher who used to draw a salary of Rs.35,000/- per month. It is further
alleged that the Director of Company and the main accused of the present case
had themselves issued a certificate that the petitioner was just an employee in
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the Company and she was not responsible for any money related to the present
FIR. The co-accused, namely, Neha Thakur, approached this Court and was
granted concession of anticipatory bail vide order dated 24.09.2020 passed in
CRM-M-19325-2020 titled as 'Neha Thakur Vs. U.T. Chandigarh.' Thereafter,
the police filed an application before the learned Chief Judicial Magistrate,
Chandigarh, for issuance of non-bailable warrants against the petitioner. On
18.04.2022, the petitioner was ordered to serve through non-bailable warrants
for 01.06.2022. On 01.06.2022, the police again filed an application for
issuance of second non-bailable warrants against the petitioner and the same
was allowed and the petitioner was ordered to serve through non-bailable
warrants of arrest for 04.07.2022. Thereafter, the police filed an application for
issuance of proclamation against the petitioner and on 16.09.2022, the learned
Chief Judicial Magistrate, Chandigarh issued proclamation against the
petitioner under Sections 82/83 of Cr.P.C. for 09.11.2022. On 09.11.2022, the
case was adjourned to 03.12.2022 awaiting appearance of the
accused/petitioner. On 28.04.2023, the trial Court declared the petitioner
proclaimed offender. Aggrieved by the said impugned order dated 28.04.2023
(Annexure P-11), the petitioner has approached this Court by way of instant
petition.
3. Learned counsel appearing for the petitioner submits that
inadvertently, the name of the petitioner is not mentioned in the order dated
28.04.2023 (Annexure P-11) vide which she was declared proclaimed offender
and prays that the same be read accordingly.
4. Allowed as prayed for.
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5. Learned counsel appearing for the petitioner submits that the
bailable warrants issued to the petitioner were never served and, therefore, the
finding of the trial Court that the petitioner is intentionally evading her arrest, is
erroneous. Further, the trial Court vide order dated 16.09.2022 observed that
since non-bailable warrants have not been executed till date, she cannot be
served through ordinary process and issued proclamation under Sections 82/83
Cr.P.C. for 09.11.2022. Ultimately, vide impugned order dated 28.04.2023, the
petitioner has been declared as proclaimed offender. It is further contended that
even the warrants and proclamation issued were not executed, as the petitioner
was not served with warrants and proclamation as the address on which the
warrants and proclamation were issued was the address of the ex-husband of the
petitioner. Petitioner got divorced from her husband in the year 2017, in proof
of which, divorce document is annexed with the petition as Annexure P-12. The
executing officer in his report mentioned that he reached at the address
mentioned in the proclamation where the accused/petitioner was not found. The
executing officer pasted a copy of the proclamation at given address, the second
copy was pasted at the local bus stand and third copy on the notice board of the
District Court and that the announcement of proclamation was also made in
public. It is also contended that the pasting of proclamation by the executing
officer on the given address where the accused/petitioner does not reside,
cannot be considered to be a valid execution of the proclamation. In support of
his arguments, counsel for the petitioner relies upon the judgment passed by this
Court in Sonu vs. State of Haryana 2021 (1) RCR (Cri.) 319 and the judgment
passed by the Gujarat High Court in Govindbhai Patel Vs. State of
Gujarat 2004 (4) RCR (Criminal) 830. It is also submitted that the
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petitioner undertakes to appear before the trial Court on each and every date. It
is further contended that the impugned order is liable to be set aside on the
ground that the mandate of Section 82 of Cr.P.C. has not been followed in its
letter and spirit by the trial Court.
6. Notice of motion.
7. Mr. C.S. Bakhshi, A.P.P., U.T. Chandigarh, who is present in Court,
accepts notice for the respondent and opposes the prayer made by learned
counsel for the petitioner on the ground that the arguments advanced by counsel
for the petitioner that the petitioner cannot be declared as proclaimed offender
is liable to be rejected in view of the judgment passed by this Court in
CRM-M-359-2012 'Smt. Deeksha Puri Vs. State of Haryana' decided on
16.10.2012 and supports the order passed by the learned trial Court by
contending that the petitioner did not put in appearance before the trial Court
intentionally and deliberately and, therefore, having left with no other option,
proclamation was issued to secure her presence.
8. I have heard learned counsel for the parties and perused the record
of the case with their able assistance and with the consent of parties, the matter
is taken up for final disposal.
9. While the scheme of criminal justice system necessitates
curtailment of personal liberty to some extent, it is of the utmost importance
that the same is done in line with the procedure established by law to maintain a
healthy balance between personal liberty of the individual-accused and interests
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of the society in promoting law and order. Such procedure must be compatible
with Article 21 of the Constitution of India i.e. it must be fair, just and not
suffer from the vice of arbitrariness or unreasonableness.
10. A perusal of the impugned order reveals that the trial Court issued
proclamation without recording reasons of its belief that the petitioner has
absconded or is concealing herself. This Court in the judgment passed in
Major Singh @ Major Vs. State of Punjab 2023 (3) RCR (Criminal) 406;
2023 (2) Law Herald 1506 has held that the Court is first required to record its
satisfaction before issuance of process under Section 82 of Cr.P.C. and non-
recording of the satisfaction itself makes such order suffering from incurable
illegality. In the judgment passed by this Court in Sonu Vs. State of Haryana
2021 (1) RCR (Crl.) 319, it has been held that the conditions specified in
Section 82 (2) 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.
11. The sole purpose of issuance of non-bailable warrants or issuance
of proclamation is to secure presence of the accused before the trial Court. The
petitioner in the present case has herself come forward and has undertaken to
appear before the trial Court on each and every date.
12. In view of the aforesaid facts and circumstances and keeping in
view the fact that the petitioner is a woman and her co-accused, namely, Neha
Thakur, has already been granted anticipatory bail, the present petition is
allowed. The impugned order dated 28.04.2023 (Annexure P-11) vide which
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the petitioner was declared proclaimed offender, is hereby set aside.
13. The petitioner is directed to appear before the trial Court within a
period of 15 days from today and on her doing so, she shall be admitted to bail
on her furnishing bail bonds and surety bonds to the satisfaction of the trial
Court, along with costs of Rs.10,000/- to be deposited with the Poor Patient
Welfare Fund, PGIMER, Chandigarh, for wasting precious time of the Court.
(HARPREET SINGH BRAR)
JUDGE
18.12.2023
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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