Rasneet Singh vs State Of Punjab And Another
2024 Latest Caselaw 6543 P&H

Punjab-Haryana High Court

Rasneet Singh vs State Of Punjab And Another on 22 March, 2024

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                       Neutral Citation No:=2024:PHHC:042154


CRM-M-14898-2024                                                               -1-

127                                                       2024:PHHC:042154

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

                                       CRM-M-14898-2024
                                       DECIDED ON: 22.03.2024

RASNEET SINGH
                                                          .....PETITIONER

                                      VERSUS

STATE OF PUNJAB AND ANOTHER
                                                          .....RESPONDENTS


CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL

Present:    Mr. Surinder Garg, Advocate
            for the petitioner.

SANDEEP MOUDGIL, J (ORAL)

1. The jurisdiction of this Court has been invoked under Section 482

Cr.P.C., for setting aside the order dated 26.08.2016 (Annexure P-9) passed in FIR

No.79 dated 26.07.2014, under Sections 325, 323, 34 of IPC, registered at Police

Station Bajakhana, District Faridkot (Annexure P-1), whereby the petitioner has

been declared as proclaimed person.

2. Learned counsel for the petitioner contends that the order dated

26.08.2016 (Annexure P-9), vide which the petitioner has been declared as

proclaimed person suffers from material illegality, since mandatory period of 30

days has not been rightly calculated by the trial Court in utter violation to the

mandate laid down under Section 82 of Cr.P.C.

3. Notice of motion.

4. Mr. Rajiv Verma, DAG Punjab accepts notice on behalf of

respondent/State, whereas Mr. Lovish Arora, Advocate has put in appearance on

behalf of respondent No.2/complainant. Both are ad idem to submit that the order

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dated 26.08.2016 (Annexure P-9) suffers from technical flow, since the period of 30

days has not been rightly calculated as per established formula i.e. 30 days' period

has to be completed from the date when proclamation is effected, whereas in the

instant case, 30 days' period has been calculated from the date it was ordered to be

fixed i.e., 26.05.2016 (Annexure P-7).

5. Referring to the order dated 26.05.2016 (Annexure P-7), learned

counsel for the petitioner submits that though the proclamation under Section 82

Cr.P.C. was effected, but requisite period of 30 days has not been expired, thus the

case was adjourned to 31.07.2016 for awaiting the presence of the petitioner and on

31.07.2016 being Sunday, the case was adjourned to 26.08.2016 i.e., the date, the

petitioner was declared as proclaimed person by observing that the proclamation

was duly published on 29.04.2016. It is submitted by the counsel for the petitioner

that the trial Court has no right to adjourn the case for awaiting the presence of the

petitioner, therefore, it is clear that proclamation was not published in accordance

with the procedure prescribed under Section 82(1) of Cr.P.C.

"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;

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(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 subsection (1)."

6. 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).

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(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

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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 Courthouse 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).

7. This Court in CRM-M-15619-2021 titled as Manpreet Singh vs. State

of Punjab decided on 08.04.2021, while relying upon the judgment of this Court in

Ashok Kumar Vs. State of Haryana and another, 2013 (4) RCR (Criminal) 550

has held that the proclamation has to be issued by giving mandatory period of 30

days from the date of publication of the proclamation till the next date of hearing of

the case, in the present case, the same has not been done. For reference, para 4 of

Ashok Kumar's case (supra) being relevant is reproduced hereunder:-

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"4. In view of the above provisions of Section 82(1) Cr.P.C., it is clear that the publication was effected on 9.2.2013 and the accused was directed to appear in the Court as per that publication on 6.3.2013 which period was less than 30 days. Therefore, it cannot be held that by passing the impugned order on 13.3.2013, the publication has been effected as per the provisions of Section 82 Cr.P.C. There was no order in the publication for the accused giving specified time and place to appear on 13.3.2013. Therefore, this order is not as per law and the same is set aside."

8. In the light of above discussions made hereinabove, this Court is duly

convinced, after hearing the submissions as well as perusal of the record that the 30

days' period has been wrongly calculated and assessed by the trial Court and,

therefore, the order dated 26.08.2016 (Annexure P-9) is bad and not sustainable in

the eyes of law. Hence, the same is ordered to be quashed.

9. The present petition stands allowed.

                                                 (SANDEEP MOUDGIL)
22.03.2024                                             JUDGE
Meenu



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




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