Punjab-Haryana High Court
Gurjant Singh vs State Of Punjab And Anr on 9 September, 2024
Neutral Citation No:=2024:PHHC:117600
CRM-M-44705
44705-2024 (O&M) -1--
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
141
CRM-M-44705-20242024 (O&M)
Date of decision: 09.09.2024
Gurjant Singh ...Petitioner
Versus
State of Punjab and another ...Respondents
...Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Aditya Sanghi, Advocate
for the petitioner.
Ms. Ruchika Sabherwal, Sr. DAG, Punjab.
Mr. Yogesh Jangra, Advocate
for respondent No. 2/complainant.
MANISHA BATRA, J. (Oral)
1. The instant petition has been filed by the petitioner under Section
528 of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short BNSS) for
quashing of order dated 28.08.2014,, passed by the Judicial Magistrate First
Class, Malerkotla in case titled as State vs. Ranjit Singh
Singh,, arising out FIR
No. 169 dated 07.12.2009, registered under Sections 447, 431, 427, 506, 148,
149 of IPC and Section 13A of the Punjab Village Common Land Act at
Police Station Sadar Malerkotla, Punjab
Punjab,, whereby the petitioner had been
declared a proclaimed offender.
2. 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 this case.
case The petitioner never joined the investigation
and challan was presented against him in his absence. The four co-accused,
accused,
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who faced full length trial, were convicted by the trial Court for commission
of offences punishable
punishable under Sections 447, 427, 506, 148, 149 of IPC, vide
judgment dated 27.11.2014. They had preferred appeal before the lower
appellate Court and had been released on probation, vide judgment dated
15.04.2015. The petitioner was never served with the ssummons/warrants
ummons/warrants
issued by the trial Court and had been declared a proclaimed offender without
following the proper procedure prescribed under Section 82 Cr.P.C. More so,
the matter has been amicably settled with respondent No. 2/complainant and a
compromise deed dated 30.08.2024 has been reduced in writing. Hence, it is
compromise
urged that the impugned order is liable to be set aside.
3. Learned State counsel, who has advance notice of the petition,
has argued that the petitioner was having due knowledge about the pendency
of the trial and had intentionally avoided his appearance before the trial Court.
Therefore, he was rightly declared a proclaimed offender. Hence, it is urged
that the petition is liable to be dismissed.
4. On the other hand, learned counsel fo
forr respondent
No.2/complainant, who is appearing through power of attorney, has admitted
to the factum of compromise arrived at between him and the petitioner and
has submitted that the complainant has no objection if the present petition is
allowed by this Court.
5. I have heard learned counsel for the parties at considerable length
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 pe
perusal
rusal of the orders passed
by the trial Court from the date of initiating proceedings under Section 82
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Cr.P.C. as against the petitioner till the date of declaring him a proclaimed
offender,, I am of the considered opinion that the impugned order dated
28.08.2014
8.2014 suffers from material illegalities and is liable to 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.C. and for declaring
him as a proclaimed person/offender. These requirement
requirementss 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
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) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar Vs. State
of Haryana and another : 2013 (4) RCR (Criminal) 550, Pawa
Pawann 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, 1994 Cri LJ 1783
and Pal Singh Vs. The State : 1955 CriLJ 318.
8. After going through the material placed on recor
record
d as well as the
copies of zimini orders passed by the trial Court
Court, it is revealed that on
08.07.2014 since the non-bailable
08.07.2014, bailable warrants issued against the petitioner were
received back unserved, the trial Court had ordered for issuance of
proclamation against him under Section 82 of Cr.P.C. for 21.07.2014. A bare
perusal of this order shows that the trial Court before ordering for publication
of proclamation has not recorded its satisfaction much less proper satisfaction
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that that the petitioner had absconded or was concealing himself so that the
warrant of arrest, previously issued, cannot be executed, despite reasonable
diligence, which was in violation of the provisions of Section 82(1) of Cr.P.C.
Cr.P.
Reliance in this regard can be placed upon Rohit Kumar Vs. State of Delhi :
2008 Crl. J. 2561.
9. A perusal of order dated 08.07.2014 further reveals that the
proclamation against the petitioner was issued for 21.07.2014, which means
that the petitioner
petitione was granted only 13 day
days' time to cause his appearance
before the trial Court. Hence, the same was in clear violation of the provisions
of Section 82(1) Cr.P.C., as per which, a specified time of not less than 30
days is required to be given to the accused
accused from the date of publishing such
proclamation which is mandatory in nature. Reliance in this regard can be
placed upon Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ
826 and Shokat Ali Vs. State of Haryna : 2020(2) RCR (Criminal) 339.
10. Further, a perusal of the statement of the serving police official
HC Rajwinder Singh reveals that the proclamation was not read over in some
conspicuous place of the town or village in which the petitioner was supposed
to be residing. As per Section 82 (2)
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.
Court house. The three sub
sub-clauses (a)-(c)
(c) in Section
82 (2)(i) of the Cr.P.C. are conjunctive and not disjunctive, which means that
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there would be no valid publication of the proclamation unless all the three
modes of publication are proved. Reliance in this regard can be placed upon
Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368.
11. 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 allowed and the impugned order dated 28.08.2014,, passed by the
Judicial Magistrate First Class, Malerkotla in case titled as State vs. Ranjit
Singh,, arising out FIR No. 169 dated 07.12.2009, registered under Sections
447, 431, 427, 506, 148, 149 of IPC and Section 13A of the Punjab Village
Common Land Act at Police Station Sadar Malerkotla, Punjab
Punjab,, whereby the
petitioner had been declared a proclaimed offender,, is quashed with all
consequential proceedings arising therefrom.
12. However, the petitioner is directed to surrender before the Court
concerned
ed within a period of four weeks, subject to order for grant of
anticipatory bail, if any passed on his petition to be filed under the relevant
provisions of BNSS.
BNSS. In the absence of any order for grant of anticipatory bail
and on such surrender, the petitioner
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.
13. 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 sa
same.
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14. Till the appearance of the petitioner before the trial Court, his
arrest shall
hall remain
remai stayed.
15. 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.
09.09.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned
speaki Yes
Whether reportable Yes
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