Mangal Singh v. State of Punjab

MANISHA BATRA, J. (Oral)

¶1The instant petition has been filed by the petitioner under Section 482 Cr.P.C. seeking quashing of order dated 12.12.2022 (Annexure P-6), passed by the Sub Divisional Judicial Magistrate, Baghapurana, in case titled as State vs. Mangal Singh etc., arising out of FIR No. 237 dated 06.12.2021, registered under Sections 363, 366-A and 120-B of the IPC at Police Station Baghapurana, District Moga, whereby he had been declared a proclaimed offender.

¶2The aforementioned FIR was registered on the statement of complainant 'H' (name withheld) alleging therein that on 04.12.2021, when thhis wife and minor daughter 'J' (name withheld), who was studying in 9 Class, were alone in the house, some unknown persons enticed away his daughter. While running away, his daughter/victim also took her mobile phone. They made search for her but could find her. Her mobile phone was also switched off. He prayed for taking action against the culprits. Thereafter, on 19.12.2021, the complainant got recorded his supplementary statement nominating the petitioner Mangal Singh, Paramjit Kaur, Jagdeep Singh @ Ravi and Hari Singh Garanthi as accused in the matter. After completion of the necessary investigation and usual formalities, challan was presented in Court against the petitioner as well as other co-accused. However, since the presence of the petitioner could not be secured, proceedings under Section 82 Cr.P.C. were initiated against him and he was declared a proclaimed offender, vide impugned order dated 12.12.2022.

¶3The present petition has been filed by the petitioner on the grounds and it has been argued by his counsel that while declaring him a proclaimed person, the proper procedure as laid down under Section 82 Cr.P.C. had not been followed. The FIR was registered on 06.12.2021 and the petitioner had left India for Kuwait on 08.12.2021. The petitioner was never served with the summons/warrants at his ordinary place of residence in Kuwait. More so, the petitioner was initially not named in the FIR by the complainant but later on when the complainant got recorded his supplementary statement, the petitioner along with other co-accused was implicated in this case, which shows that it was an afterthought of the complainant. He is ready to appear before the trial Court and join the Court proceedings. With these broad submissions, learned counsel for the petitioner has argued that the impugned order is liable to be set aside.

¶4Learned State counsel, who has advance notice of the petition, has argued that the petitioner was having 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.

¶5I have heard learned counsel for the parties and have also gone through the material placed on record.

¶6On 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 person, I am of the considered opinion that the impugned order dated

12.12.2022 suffers from material illegalities and is liable to be quashed with all the consequential proceedings arising therefrom.

¶7At the outset, 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 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 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)."

¶8There 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 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. 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.

¶9The position of law as laid down in the above cited authorities 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.

(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.

(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.

(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.

(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.

(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. 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 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.

(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.

(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.

¶10On applying the above discussed position of law to the peculiar facts and circumstances of the present case and on a perusal of the zimini orders, copies of which have been placed on record, it is apparent that on

27.04.2022, the trial Court, by observing that non-bailable warrants issued against the petitioner were received back unexecuted, recorded its satisfaction that presence of the petitioner could not be procured through ordinary process and issued proclamation under Section 82 Cr.P.C. for 17.05.2022. However, on 17.05.2022, the proclamation issued against the petitioner was not received back, therefore, fresh proclamation was issued for 05.07.2022. Thereafter, vide impugned order dated 12.12.2022, the trial Court, by observing that proclamation had already been effected and the statutory period of 30 days had lapsed, declared the petitioner a proclaimed offender as he failed to appear before it. However, a perusal of the report of the serving police official Ex. P2 would reveal that the proclamation was executed only on 30.06.2022 requiring the petitioner to cause his appearance before the trial Court on

05.07.2022, which means that the petitioner was granted only 04 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 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. It is also apparent from the report of the serving police official 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, which is in violation of Section 82(2)(i)(a) Cr.P.C., as per which, the proclamation should be read over in some conspicuous place of the town or village in which the accused is residing. Reliance in this regard can be placed upon Pawan Kumar Gupta Vs. The State of W.B. : 1973 CriLJ 1368.

¶11Further, it has also come on record that the petitioner had left India after registration of the FIR but he was not aware about registration of the FIR as on the date of his leaving India. The orders passed by the trial Court simply reveal that the warrants issued against the petitioner had been received back unexecuted without satisfying itself as to whether he was reported to have gone abroad or his whereabouts were otherwise not known. No efforts whatsoever were made by the Court to ask the complainant the address of the petitioner of the country, where process could be sent to him. 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, he 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.

¶12Accordingly, the present petition is allowed and the impugned order dated 12.12.2022 (Annexure P-6), passed by the Sub Divisional Judicial Magistrate, Baghapurana, in case titled as State vs. Mangal Singh etc., arising out of FIR No. 237 dated 06.12.2021, registered under Sections 363, 366-A and 120-B of the IPC at Police Station Baghapurana, District Moga, whereby he had been declared a proclaimed offender, is quashed with all consequential proceedings arising therefrom.

¶13However, the petitioner is directed to surrender before the Court concerned within a period of two months, subject to order for grant of anticipatory bail, if any passed on his petition to be filed under Section 438 of the Cr.P.C. In the absence of any order for grant of anticipatory bail 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.

¶14Needless 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.

13.03.2024 (MANISHA BATRA)

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH 137-2 CRM-M-12659-2024 (O&M) Date of decision: 13.03.2024 Mangal Singh ...Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Present:- Mr. Sanjeev Kumar Arora, Advocate for the petitioner.