Punjab-Haryana High Court
Vijay Sharma vs State Of Haryana And Anr on 19 December, 2024
Author: Kirti Singh
Bench: Kirti Singh
Neutral Citation No:=2024:PHHC:170774
CRM-M-61876-2024 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.252 CRM-M-61876-2024 (O&M)
Date of decision : 19.12.2024
Vijay Sharma ..... Petitioner
VERSUS
State of Haryana and another ..... Respondents
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. P.S. Ahluwalia, Advocate for the petitioner
Mr. Gaurav Bansal, DAG, Haryana.
Mr. Arjun Atri, Advocate, for respondent No.2.
*****
KIRTI SINGH, J. (Oral)
1. This petition has been filed under Section 528 of BNSS, 2023
for quashing of the impugned order dated 13.02.2017 (Annexure P6) passed
by the Addl. Chief Judicial Magistrate, Gurugram whereby, the petitioner
was declared a proclaimed offender in case No. COMI/73485 of 2013 dated
24.12.2009 titled as ‘Sangeeta Vs. Vijay etc.’ wherein the petitioner has
been summoned to face trial for offences under Sections 420, 493 & 495 of
IPC.
2. Succinct factual narrative relevant for the disposal of the case is
that the abovesaid complaint was lodged by respondent No.2 alleging that
the petitioner by concealing his marital status performed marriage with her.
The trial Court issued summons to the petitioner to face trial in this case vide
order dated 18.04.2015. Since the petitioner did not appear before the
learned Court, proclamation proceedings were initiated and due to his non-
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appearance the petitioner was declared proclaimed offender vide order dated
13.02.2017 (Annexure P6).
3. Learned counsel for the petitioner submits that learned trial
Court has erred while declaring the petitioner as a proclaimed offender
without complying with the mandatory provisions of Section 82 Cr.P.C. He
while referring to proclamation notice dated 09.01.2017 (Annexure P9)
contends that the petitioner was directed to appear before the trial Court on
16.01.2017 and he was not granted the mandatory 30 days period in
compliance to Section 82(1) Cr.P.C. The petitioner has been residing in
Dubai, United Arab Emirates since 2016 and he had no knowledge of the
this case as the summons and warrants were not executed as the same were
not issued at the correct address since the petitioner left India on 13.10.2016.
He was never served and the learned trial Court never made any efforts to
serve him at his foreign address in compliance of Section 105 Cr.PC. He
has relied upon copy of passport (Annexure P10) to substantiate his claim.
He further submits that a mere perusal of section 82 Cr.P.C. would reveal
that before a proclamation can be issued, the Court should have reasons to
believe (whether after taking evidence or not) that a person, against whom a
summons had been issued, is concealing himself and as a result the
summons cannot be executed/served. The orders clearly show that while
issuing process under Section 82/83 Cr.P.C. the court did not record
satisfaction that the summons against the petitioner could not be served or
that he was concealing himself. In fact, no effort was made to serve the
petitioner at his address, further, there is nothing to show that summons were
ever attempted to be served on the petitioner through Ministry of External
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affairs at United Arab Emirates. The orders have been passed without
following the due procedure and are not maintainable and hence liable to be
quashed. Hence, there are lacunas in the procedure followed by the learned
Court.
4. Learned counsel has placed reliance upon the order dated
05.08.2013 passed by a Coordinate Bench of this Court in CRM-M-13638-
2013 and order dated 03.12.2021 passed in CRM-M-50551-2021.
5. In compliance to the order dated 10.12.2024, status report has
been filed by the learned State counsel in Court today. The same is taken on
record.
6. At this stage, Mr. Arjun Atri, Advocate, has put in appearance
on behalf of respondent No.2 and has filed his vakalatnama in Court today.
The same is taken on record. He submits that the petitioner despite the
proclamation has failed to appear before the trial Court and has rightly been
declared proclaimed persons vide the impugned order.
7. Heard.
8. A perusal of proclamation notice reveals that the notice was
issued on 09.01.2017, whereby, the petitioner was directed to appear on
16.01.2017, thus, the petitioner was not granted 30 days mandatory period in
compliance of Section 82 Cr.P.C.
9. It would be relevant to refer to the provision of Section 82
Cr.P.C. which provides for publication of proclamation against the person
absconding. It 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 that3 of 6
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CRM-M-61876-2024 (O&M) 4such 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 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).”
10 It is clear from the record that warrant of arrest was issued and
proclamation proceedings under Section 82 Cr.P.C. were initiated against
the petitioner when he was in United Arab Emirates. There is nothing on
record to show that the trial Court had made any efforts or passed any order
for serving the petitioner at his actual place of residence in United Arab
Emirates through Ministry of External Affairs at United Arab Emirates.
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11. There is a 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 requirements have
been discussed from time to time in Rohit Kumar Vs. State of Delhi : 2008
Crl. J. 2561, Rohit Kumar Vs. State 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) 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, Birad Dan Vs.
CRM-M-37501-2023 (O&M) 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.
12. From the perusal of the case file, it can be inferred that the
accused was not granted 30 days period from the date of proclamation to
appear in the Court in compliance of Section 82(1) Cr.P.C. and the petitioner
was residing in United Arab Emirates since 2016, therefore, there was no
occasion for him to evade the process of law intentionally, as he was never
served in accordance with law. Thus, the proclamation order dated
13.02.2017 (Annexure P6) is in gross violation of Section 82 & 105 Cr.P.C.
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13. In view of the aforesaid discussions, this Court is of the
considered view that the impugned order dated 13.02.2017 (Annexure P6)
vide which the petitioner has been declared as proclaimed absconder is not
sustainable in the eyes of law and hence, the same deserves to be set aside.
14. In view of above, the petition stand allowed and the impugned
order 13.02.2017 (Annexure P6) is set aside subject to payment of cost of
Rs.25,000/- by the petitioner to be deposited with the Poor Patient
Welfare Fund, PGIMER Chandigarh within a period of four weeks from
today. The petitioner after depositing the cost as stated above would appear
before the trial Court concerned within a period of one month from the date
of this order and file appropriate application along with receipt of payment
of cost. The trial Court would release the petitioner on furnishing bail
bonds/surety bonds to its satisfaction. No coercive action would be taken
against the petitioner till then. In case, the petitioner failed to appear before
the trial Court or failed to deposit the cost as stated above, this order would
be of no avail to the petitioner.
15. Pending miscellaneous application(s), if any, also stands
disposed of.
(KIRTI SINGH)
JUDGE
19.12.2024
Ramandeep Singh
Whether speaking / reasoned Yes/No
Whether Reportable Yes/No
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