Punjab-Haryana High Court
Kapoor Singh Ahlawat And Others vs M/S Amar Steel And Another on 10 September, 2024
Neutral Citation No:=2024:PHHC:119099
CRM M-40303 of 2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
116 CRM M-40303 of 2024
Date of Decision: 10.09.2024
Kapoor Singh Ahlawat and others ...Petitioners
Versus
M/s Amar Steel and another ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Dinesh Arora, Advocate
for the petitioners.
Mr. N.K. Malhotra, Advocate,
for respondent No. 1.
Ms. Sheenu Sura, DAG, Haryana.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioners have filed the present petition under
Section 482 Cr.P.C. with a prayer to quash the order dated 27.07.2023
(Annexure P-12) passed by the Judicial Magistrate 1st Class, Rohtak,
whereby, the petitioners have been declared proclaimed persons in a
criminal complaint No. NACT-670 dated 28.05.2019 under Section
138 of the Negotiable Instruments Act 1881 (hereinafter to be referred
as 'the Act') and all consequential proceedings arising therefrom.
2. Learned counsel for the petitioners contends that a
complaint dated 27.05.2019 (Annexure P-3) was filed against the
petitioners by respondent No. 1 on account of dishonour of a cheque
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(Annexure P-4). He further contends that after the preliminary
evidence, vide the summoning order dated 04.01.2020
(Annexure P-5), the petitioners were summoned to face the trial under
Section 138 of the Act. Even, the summons were never served on the
present petitioners. Still further, the warrants were issued for the
service of the petitioners, however, on 09.12.2021, the warrants were
served on a person Lalit Kumar, who was working in the office of the
company. Ultimately, in order dated 29.03.2023, the trial Court
specifically recorded that non bailable warrants were not received
back in any form and instead of issuing fresh warrants, the
proclamation was issued against the petitioners on 29.03.2023. Again
on 27.07.2023, the report on proclamation was submitted before the
Court and the statement (Annexure P-11) of executing constable was
also recorded by the trial Court. However, vide the impugned order
dated 27.07.2023 (Annexure P-12), the petitioners were declared as a
proclaimed persons in the main case.
3. Learned counsel for the petitioners contends that from
the report submitted by the serving police officers, it stands
established that the proclamation was not read publicly on a
conspicuous place, where the accused was ordinarily residing. Thus,
without following the mandatory provisions of Section 82 Cr.P.C., the
petitioners have been declared to be proclaimed persons.
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4. On the other hand, learned State counsel assisted by
learned counsel for the complainant have vehemently opposed the
submissions made by learned counsel for the petitioners on the
ground that the petitioners had absconded and were declared as
proclaimed persons in the present case. Thus, the impugned order
does not suffer from any illegality and the petition may be dismissed.
5. Section 82 of the Cr.P.C., which provides for publication
of proclamation against person absconding, reads as under:-
"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; (ii)the Court may also, if it
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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. In a judgment titled as Sonu Vs. State of Haryana,
2021(1) RCR (Criminal) 319, this Court had discussed the essential
requirements of Section 82 of the Code of the Criminal Procedure as
under:-
9. The essential requirements of Section 82 of the
Cr.P.C. for issuance and publication of proclamation
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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).
(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
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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 which the
accused ordinarily resides. Advisably, proclamation has
to be issued with four copies so that one each of the
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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)".
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7. Now adverting to the facts of the present case, it is
apparent from the order dated 29.03.2023 (Annexure P-10) passed by
the Court of Judicial Magistrate 1st Class, Rohtak, that the Court had
ordered to secure the presence of the petitioners by way of
proclamation and the proclamation under Section 82 Cr.P.C. was
issued for 27.07.2023. Even, the proclamation was directed to be
published, fulfilling the following requirements:-
"1. It shall be publicly read in some conspicuous
place.
2. It shall be affixed in some conspicuous part of the
house in which such person ordinarily resides or
to some conspicuous place of the village or town.
3. Copy of proclamation shall also be affixed on
conspicuous part of the Court-house".
8. On 27.07.2023, the statement of S.P.O. Priyank, Police
Station Urban Estate Rohtak was recorded and he had stated that he
had visited the house of the petitioners on 27.06.2023 with
proclamation. However, the petitioners were not found present in their
house and he had pasted a copy of the proclamation on the given
address and second copy on the conspicuous place and the third copy
had been pasted on the notice board of the Court. However, he has
nowhere stated that the proclamation was publicly read in some
conspicuous place, where the accused ordinarily resides. Thus, the
procedure as prescribed by the provisions of Section 82 Cr.P.C., had
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not been followed by the serving official and the petitioners were
wrongly declared as proclaimed persons in the present case.
10. In view of the above discussion, the petition is allowed
and the impugned order dated 27.07.2023 (Annexure P-12) passed by
the Judicial Magistrate 1st Class, Rohtak and all subsequent
proceedings arising therefrom are ordered to be quashed qua the
petitioners.
10.09.2024 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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