Hardeep Singh Sansoa Through Gpa and Mother v. State of Punjab

MANISHA BATRA, J. (Oral)

¶1The instant petition has been filed by the petitioner under Section 482 Cr.P.C. for quashing of order dated 28.10.2022 (wrongly mentioned as

27.10.2022 in the petition), passed by the Sub Divisional Judicial Magistrate, Nangal in case titled as State of Punjab vs. Hardeep Singh Sansoa, arising out of FIR No. 06 dated 21.03.2019, registered under Section 420 and 498-A of IPC at Police Station NRI, S.B.S. Nagar, whereby the petitioner had been declared a proclaimed person.

¶2Learned counsel for the petitioner submits that he has been falsely implicated in this case. The marriage between the petitioner and the complainant was solemnized on 10.02.2017. After the marriage, they lived in Jalandhar till 22.03.2017 and thereafter, the petitioner had left for Vienna, Austria on 22.03.2017 and had never come back since then. However, a matrimonial discord arose between them and respondent No. 2 had got lodged the aforementioned FIR with false allegations, whereby after completion of necessary investigation, challan was presented in the Court and the trial commenced. However, since the petitioner could not appear before the trial Court as he was abroad, he has been declared a proclaimed person by the trial Court by passing the impugned order dated 28.10.2022. It is argued that since the petitioner was in Austria, he was never served with the summons/warrants issued by the trial Court and had been declared a proclaimed person without following the proper procedure prescribed under Section 82 Cr.P.C. It is also submitted that the petitioner has filed a petition bearing CRM-M-36232-2019 seeking quashing of the FIR in question, which is pending adjudication before this Court. 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 person. 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

28.10.2022 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, 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 copies of the zimini orders, which have been placed on record, it is revealed that on

12.08.2022, since the petitioner had failed to appear before the Court despite issuance of non-bailable warrants on several occasions as he had been residing abroad, the trial Court had ordered for issuance of proclamation against the petitioner for 27.09.2022. Thereafter, on 27.09.2022, the proclamation was received back executed. However, since the mandatory period of 30 days had not elapsed from the date of execution of proclamation, the case was adjourned to 28.10.2022. However, while adjourning the case to 28.10.2022, the trial Court failed to consider the fact that it could not have extended the time by simply adjourning the case as a fresh proclamation was required to be published once the period between issuance of publication of proclamation and the specified period of hearing was less than 30 days. Reference in this context can be made to Dilbagh Singh Vs. State of Punjab (P&H) : 2015 (8) R.C.R. (criminal) 166.

¶11Further, a perusal of the order dated 27.09.2022 reveals that the proclamation was not affixed at a conspicuous part of the Court premises, which was in violation of the provisions of 82(2) of Cr.P.C. as 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. Reliance in this regard can be placed upon Pawan Kumar Gupta vs. the State of W.B. : 1973 CriLJ 1368.

¶12Further, it has also come on record that the petitioner had left India for Austria on 22.03.2017 and he never came back to India, which is not in dispute. This plea of the petitioner also finds strength from the fact of his absence before the National Commission for Women, where both the parties were present on 16.03.23018, except the petitioner and it was clearly mentioned in the proceedings that he was in Austria. Even the serving police official has reported about this fact. However, the orders passed by the trial Court simply reveal that warrants were sent to him through email as well as registered post and there is nothing to show that any 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.

¶13Accordingly, in view of the discussion as made above, the present petition is allowed and the impugned order dated 28.10.2022 (wrongly mentioned as 27.10.2022 in the petition), passed by the Sub Divisional Judicial Magistrate, Nangal in case titled as State of Punjab vs. Hardeep Singh Sansoa, arising out of FIR No. 06 dated 21.03.2019, registered under Section 420 and 498-A of IPC at Police Station NRI, S.B.S. Nagar, whereby the petitioner had been declared a proclaimed person, is quashed with all consequential proceedings arising therefrom.

¶14However, the petitioner is directed to surrender before the Court concerned within a period of two and a half 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

¶15Needless 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.

¶16Till the appearance of the petitioner before the trial Court, his arrest shall remain stayed.

13.05.2024 (MANISHA BATRA) Waseem Ansari JUDGE

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-23463-2024 (O&M) Date of decision: 13.05.2024 Hardeep Singh Sansoa ...Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Present:- Mr. Saurabh Arora, Advocate for the petitioner. Ms. Ruchika Sabherwal, Sr. DAG, Punjab. (on advance notice)