Punjab-Haryana High Court
Gurdeep Singh And Another vs State Of Punjab And Another on 25 November, 2024
Neutral Citation No:=2024:PHHC:155360
CRM-M-35827
35827-2024 (O&M) -1--
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
281
CRM-M-35827-20242024 (O&M)
Date of decision: 25.11.2024
Gurdeep Singh and another ...Petitioners
...Petitioner
Versus
State of Punjab and another ...Respondents
...Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Harpreet Singh Jakhal, Advocate
for the petitioner.
Mr. A. S. Samra, AAG, Punjab.
Ms. Kiranjeet Kaur, Advocate
for respondent No. 2.
MANISHA BATRA, J. (Oral)
1. The instant petition has been filed by the petitioner
petitioners under
Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.')
') for
quashing the Criminal Complaint bearing No. COMI/19/2017, filed under
Sections 419, 420, 467, 468, 471 and 120
120-B of IPC, titled as Kala Singh vs.
Gurdeep Singh and others.
others The prayer has also been made for quashing of
order dated 25.01.2023, passed by the Sub Divis
Divisional Judicial Magistrate,
Jalalabad in the aforesaid case, whereby petitioner No. 1 had been declared a
proclaimed person as well as for quashing of judgment of conviction dated
19.07.2023 qua petitioner No. 2 along with all the subsequent proceedings
therefrom in view of compromise dated 13.07.2024, arrived at between the
parties.
2. After arguing for some time, learned ccounsel
ounsel for the petitioners
has restricted his arguments only to the extent of quashing of order dated
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25.01.2023, whereby petitioner No. 1 had been declared a proclaimed person
and has submitted that the present petition may be dismissed as withdrawn
qua other
ther reliefs
relief sought by the petitioners. Ordered accordingly.
3. The present petition has been filed by the petitioner on the
grounds and it has been argued by his counsel that the petitioner has been
falsely implicated in the aforesaid complaint. It is further submitted that
petitioner No. 2, after facing full length trial, had been convicted by the
learned trial Court, vide judgment dated 19.07.2023
19.07.2023.. However, now a
compromise has been arrived at between the parties and a compromise deed
has been reduced into writing. Otherwise also, the petitioner was residing in
Canada at the time of filing of the aforesaid complaint and issuance of notice
against him. He was never served with any notice/warrants issued against him.
He had been declared a proclaimed per
person without following the proper
procedure prescribed under Section 82 Cr.P.C. Hence, it is urged that the
impugned order is liable to be set aside.
4. Learned counsel for respondent No. 2 has admitted to the factum
of compromise entered into between the parties and has submitted that the
complainant has no objection if the impugned order dated 25.01.2023 is
quashed by this Court.
5. I have heard learned
d counsel for the parties and have also gone
through the material placed on record.
6. On giving due deliberations to the contentions as raised by
learned counsel for the parties and on an overall perusal of the orders passed
by the trial Court from the date of initiating proceedings under Section 82
Cr.P.C. as against the petitioner till the date of declaring him a proclaimed
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person,, I am of the considered opinion that the impugned order dated
25.01.2023 suffers from material illegalities and is liable tto
o be quashed with
all the consequential proceedings arising therefrom.
7. There are catena of judgments of different High Courts
discussing the requirements necessary for issuance and publication of
proclamation against an absconder under Section 82 Cr.P
Cr.P.C.
.C. and for declaring
him as a proclaimed person/offender. These requirements have been discussed
from time to time in Rohit Kumar Vs. Stat
Statee of Delhi : 2008 Crl. J. 2561,
Bishundayal Mahton and others Vs. Emperor : AIR 1943 Patna 366,
Devender Singh Negi Vs. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783,
Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826, Shokat Ali
Vs. State of Haryna : 2020(2) RCR (Criminal) 339, Dilbagh Singh Vs. State
of Punjab : (P&H)
(P&H) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar Vs. State
of Haryana and another : 2013 (4) RCR (Criminal) 550, Pawan Kumar
Gupta Vs. The State of W.B. : 1973 CriLJ 1368, Birad Dan Vs. State : 1958
CriLJ 965, Negi alias Debu Vs. State of U.P. and another, 11994
994 Cri LJ 1783
and Pal Singh Vs. The State : 1955 CriLJ 318.
8. After going through the material placed on record as well as the
copies of zimini orders passed by the trial Court
Court, it is revealed that vide order
dated 13.07.2022, the learned trial Court by observing that the notice issued
against the petitioner had been received back unserved with the report that he
had gone to Canada and he could not be summoned in ordinary manner passed
the order for procuring his presence by way of publication in the nnewspaper
ewspaper
titled as 'The Tribune' for 10.08.2022. Thereafter, the publication charges had
not been deposited till 04.11.2022. On deposit thereof, publication was
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ordered for 25.01.2023, vide order dated 21.12.2022 and on 25.01.2023, the
petitioner was declared
declared a proclaimed person by observing that he did not come
in the Court despite publication having been received back effected. A perusal
of this order shows that neither date of publication has been mentioned nor the
name of the newspaper is reflected.
9. As per Section 82 of Cr.P.C., iiff any Court has reason to believe
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. Such proclamation must be publicly read in
some conspicuous place of the town or village in which such person ordinarily
narily
resides; 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; a copy thereof shall be affixed to some conspicuous part of
the Court--house; 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. A bare reading of the aforementioned
provisions of Section 82 of Cr.P.C. clearl
clearly shows that the Court may also
order for publication in a daily newspaper simultaneously with issuing
proclamation in accordance with Section 82(2)(ii) of Cr.P.C. and cannot
solely opt for publication in the newspaper in view of Section 82(2)(iii) of
Cr.P.C.
.C. However, in the present case, the learned trial Court instead of
complying with the provisions of Section 82 of Cr.P.C. in its true spirit has
only ordered for publication in a newspaper and on the basis of the same has
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declared the petitioner a proclaimed
proclaimed person. More so, it was in due knowledge
of the learned trial Court that petitioner was residing in Canada but there is
nothing on record to demonstrate the statutory provisions of Section 105 of
Cr.P.C. were complied with. No letter to Ministry of External Affairs qua
service of notice/warrants/proclamation against the petitioner is shown to have
been written by the trial Court. As such, it can reasonably be presumed that
the process never reached the petitioner and hence, hhee had no occasion to
conceal himself. As such, the action of the trial Court by
switching to the proclamation proceedings under Section 82 Cr.P.C. can itself
be stated to be bad in the eyes of law. Reliance in this context can be placed
upon Manjit Kaur vs. State of Punjab : 2013 SCC Online (P&H) 8663
8663.
10. Accordingly, in view of the discussion as made above and also in
view of the ratio of law as laid down in above cited authorities
authorities,, the present
petition is partly allowed and the impugned
gned order dated 25.01.2023,, passed by
the learned trial Court in aforesaid complaint, whereby petitioner No. 1 had
been declared a proclaimed person,, is quashed with all consequential
proceedings arising therefrom.
11. However, petitioner No. 1 is directed to surrender before the
Court concerned within a period of four weeks, subject to order for grant of
anticipatory bail, if any passed on his petition to be filed under Section 482 of
BNSS.. In the absence of any order for grant of anticipatory bbail
ail and on such
surrender, the petitioner shall be liable to be remanded to judicial custody
subject to any order for grant of regular bail to be passed by the concerned
Court in accordance with law.
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12. Needless to observe that in case any application is filed before
the concerned Court for grant of regular bail, then the concerned Court shall
be bound to dispose of the same expeditiously and that nothing in this order
shall be treated as expression of any opinion on merits so as to bind or
influence the concerned Court in disposal of the same.
13. Till the appearance of petitioner No. 1 before the trial Court, his
arrest shall
hall remain
remai stayed.
14. It is made clear that in case the petitioner fails to appear before
the trial Court within a period of four weeks from today, this petition shall be
deemed to be dismissed.
15. The petitioners are granted liberty to file a fresh petition with
regard to their other prayers.
25.11.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
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