Punjab-Haryana High Court
Yadvinder Singh vs State Of Haryana on 5 November, 2024
Neutral Citation No:=2024:PHHC:146487
CRM-M-42527-2022 - 1-
274 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-42527-2022
Date of Decision:05.11.2024
Yadvinder Singh ...Petitioner
Vs.
State of Haryana ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Mr. Rishabh Chaudhary, Advocate with
Mr. Rajender Kumar, Advocate and
Mr. Amandeep Sandhu, Advocate
for the petitioner.
Mr. Rajinder Kumar Banku, Deputy Advocate General, Haryana.
***
N.S.Shekhawat J.
1. The petitioner has filed the present petition under Section 482 of
Cr.P.C. with a prayer to quash the impugned order dated 04.07.2019
(Annexure P-12) passed by the Court of Additional Sessions Judge,
Kurukshetra, whereby the petitioner has been declared as a proclaimed offender
in a case arising out of FIR No.113, dated 04.10.2012, registered under Sections
148, 149, 323, 324, 325, 326 of IPC, Police Station Ismailabad, District
Kurukshetra.
2. Learned counsel for the petitioner contends that the petitioner has
been falsely involved in the present case. After the registration of the case, the
petitioner applied for grant of bail and was granted the concession of bail. The
petitioner appeared before the Trial Court and vide judgment of conviction
dated 31.10.2015 and order of sentence dated 04.11.2015, passed by the Court
of Additional Sessions Judge, Kurukshetra, the petitioner was convicted for
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commission of the offences punishable under Sections 148/323/324/326 read
with Section 149 of IPC and was sentenced to undergo RI for a maximum
period of 03 years. He further contends that the sentence imposed on the
petitioner and the other accused was suspended till 03.12.2015, so as to enable
him to file an appeal before this Court. The petitioner was not properly advised
by his counsel representing him before the Trial Court and he did not file an
appeal. Consequently, vide order dated 05.12.2015, arrest warrants were issued
against the petitioner. Still further, since the petitioner had not appeared before
the Trial Court, warrants of arrest issued against him. However, warrants of
arrest were never served on him, as the petitioner had already gone abroad.
Learned counsel further contends that even the Court was aware of the fact that
the petitioner was abroad, still no efforts were made to serve him through the
embassy in that country. Ultimately, vide order dated 14.05.2019, the Trial
Court issued proclamation against the petitioner under Section 82 of Cr.P.C for
30.05.2019. On 30.05.2019, the statement of serving Constable was recorded
and he stated that he had affixed the proclamation on the house of the petitioner
as well as on the conspicuous place in the village. Even, one copy of the order
was affixed on the notice board of the Court. However, it was nowhere stated
that the copy of proclamation was read publically at some conspicuous place in
the village. On 30.05.2019, the Court noticed that the statutory period of 30
days had not elapsed, the case was adjourned to 04.07.2019 for the presence of
the petitioner. Learned counsel for the petitioner further contends 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 as
provided by the law. In the present case, the proclamation of the petitioner was
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issued on 14.05.2019 and the petitioner was directed to appear on 30.05.2019.
Thus, clear notice of 30 days as mandated by Section 82 of Cr.P.C was not
given to the petitioner and even the proclamation was not read over at a
conspicuous place in the village.
3. On the other hand, learned State counsel had vehemently opposed
the submissions made by learned counsel for the petitioner on the ground that
the petitioner had intentionally not appeared before the Trial Court for several
months and is not entitled for any relief. It was submitted that the petitioner had
the knowledge of pendency of the proceedings against him, however, he chose
not to appear before the Trial Court and the petition is liable to be dismissed.
However, learned State counsel could not rebut the factual submissions made
by learned counsel for the petitioner in the present case.
4. It has been held by this Court in the matter of Ashok Kumar Vs.
State of Haryana and Anr.2013(4) RCR (Criminal) 550 as under:
3."As per order dated 04.01.2013 passed by the learned Additional
Chief Judicial Magistrate, Panipat the case has been adjourned
for 06.03.2013 for issuing of proclamation under Sections 82 and
83 Cr.P.C.against petitioner Ashok Kumar. The order dated
06.03.2013, shows that proclamation issued against Ashok Kumar
received back duly executed. Statement of Serving Constable was
also recorded. Period of 30 days had not elapsed from the date of
publication. Therefore, the case was adjourned to 13.3.2013. On
that day, the petitioner was declared as proclaimed offender. The
original record also shows that the statement of the serving
official, namely, ASI Dilbag Singh was recorded on 6.3.2013, who
stated that on 9.2.2013, he visited the place of residence of the
accused along with proclamation. After reading publicly, the
proclamation was affixed at conspicuous part of the house of the
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accused where he ordinarily resides. A copy of the proclamation
was also affixed at conspicuous part of the Court house, which
means that the publication was effected on 9.2.2013 for 6.3.2013,
which shows that after the publication of the notice, the accused
was not given the mandatory period of 30 days to appear before
the Court. The mere fact that the Court adjourned it after the
period of 30 days will not be treated as compliance of the
provisions of Section 82 (1) Cr.P.C. where it is provided that :-
"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.
(1) xx xx xx xx xx xx xx
(2) xx xx xx xx xx xx xx
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".
5. Still further, it has been held by this Court in the matter of Avtar
Singh Vs. State of Punjab and Anr. in CRM-M-1866-2017 which is as under:-
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"The above quoted provision is clear that through the proclamation
made prior to declaration of a person as a proclaimed offender, he
should be given not less than thirty days from the date of its
proclamation to appear at a specified place and a specified time.
In the case in hand, thirty days were not given to the
petitioner to appear before the Trial Court as the proclamation was
made on 13.05.2011 requiring him to appear before the Trial Court
on 14.05.2011. Thus, the proclamation and the subsequent order
dated 03.09.2011 (Annexure P-2) declaring the petitioner to be a
proclaimed offendder do not confirm with the mandate of Section 82
(1) of the Code.
6. In the present case also, this Court has no hesitation to hold that the
mandatory provisions of Section 82 of the Cr.P.C have not been complied by
the Trial Court. As per the statement of Serving Constable, the proclamation
was published on 18.05.2019 i.e 12 days prior to the date fixed for the
appearance of the petitioner/accused before the Trial Court and the statutory
notice of 30 days was not granted to the petitioner. Since the period was less
than 30 days, the case was adjourned to 30.05.2019 and such adjournment
cannot be taken as sufficient compliance of the provision of Section 82 (1) of
the Cr. P.C. Thus, in view of the mandatory provisions of Section-82 of Cr.P.C
and the ratio laid down by this Court in the matter of Ashok Kumar and Avtar
Singh (supra), it can be safely concluded that the Trial Court had not complied
with the provisions of Section 82(1) Cr.P.C., while declaring the petitioner as
proclaimed offender and the impugned order is illegal and unsustainable.
7. In view of the above discussion, the impugned order dated
04.07.2019 (Annexure P-12) passed by the Court of Additional Sessions Judge,
Kurukshetra is illegal and unsustainable and is liable to be quashed by this
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Court. Since the matter had remained pending for the last several years, no
purpose will be served by sending the petitioner behind the bars after such a
long period.
8. Consequently, the petitioner is permitted to surrender before the
Trial Court/Area Magistrate/Duty Magistrate within a period of six weeks from
today and on his surrender, he shall be admitted to bail by the concerned Court
on his furnishing bail bonds/surety bonds to the satisfaction of the concerned
Court. The Court, which admits the petitioner to bail, shall also be at liberty to
impose such reasonable conditions, as provided by law. In case, the petitioner
does not surrender within a period of six weeks from today, the present petition
shall be deemed to be dismissed by this Court.
9. The petition is disposed off in above terms.
(N.S.SHEKHAWAT)
05.11.2024 JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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