Ram Sund v. State Of Punjab And Another

CRM-M-17514-2025(O&M) 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH Sr. No.125 CRM-M-17514-2025(O&M) Date of decision : 30.04.2025 RAM SUND ..... Petitioner

VERSUS

STATE OF PUNJAB AND ANOTHER ..... Respondents CORAM: HON'BLE MS. JUSTICE KIRTI SINGH

Present:

Mr. Satnam Singh Thakur, Advocate for the petitioner. ***** KIRTI SINGH, J. (Oral) 1.

By way of the present petition filed under Section 528 Bharatiaya Nagarik Suraksha Sanhita, 2023 (for brevity 'BNSS') prayer is for quashing of order dated 17.07.2008 passed by the learned Judicial Magistrate Ist Class, Phillaur vide which the petitioner was declared as proclaimed offender in FIR No.172 dated 01.12.2006, registered under Sections 406 & 498-A IPC, at Police Station Nurmahal, District Jalandhar. 2.

Learned counsel for the petitioner submits that marriage between the petitioner and respondent No.2 was solemnized on 08.12.2002 and out of the said wedlock, no child has been born. It is further submitted that after 15 days of marriage, the petitioner went to Canada, and consequently, respondent No.2 got registered the present FIR to falsely implicate the petitioner. However, now, the matter stands settled amicably between the parties, for which, a compromise dated 07.10.2023 (Annexure P-4) has also been executed between the parties, and respondent No.2 has taken an ex parte decree of divorce dated 13.10.2021 from the petitioner (Annexure P-5). Insofar as the proclamation order of the petitioner is concerned, learned counsel contends that the petitioner has never traveled to

CRM-M-17514-2025(O&M) 2 India since the solemnization of marriage, and even when the FIR was registered on 01.12.2006 or when the trial commenced, the petitioner was not in India. Thus, neither were the non-bailable warrants nor the proclaimation was served upon him at his foreign address, in compliance of Section 82 and 105 Cr.P.C.

3.

Notice of motion.

4.

At the asking of the Court, Mr. Davinder Bir Singh, Senior DAG, Punjab, Punjab, accepts notice on behalf of respondent No.1-State and waives service. He has submitted that the petitioner, despite the proclamation, has failed to appear before the trial Court and has been rightly declared a proclaimed offender vide the impugned order and in addition, the petitioner is evading the process of Court which is highly deprecated on his part and in view of above, he does not deserve the concession. 5.

Mr. Anshul Sharma, Advocate, puts in appearance on behalf of respondent No.2 and filed his power of attorney. The same is taken on record. He has admitted the factum of compromise effected between the parties.

6.

Heard the submissions made by learned counsels for the parties. 7.

According to the averments, the petitioner was residing abroad at the time of registration of the FIR and was not duly served in compliance of the mandatory provisions contained under Sections 82 & 105 Cr.P.C. 8.

A person cannot be said to "abscond" or "evade" the execution of warrant when he had gone to a distant place before the issue of the warrant. Dependence can be made on the judicial dictum rendered in the case of "M.S.R. Gundappa v. State of Karnataka" (1977 Cr LJ NOC 187), wherein it was held that a person who had gone abroad even before the issue

CRM-M-17514-2025(O&M) 3 of the warrant of arrest cannot be said to be absconding or concealing himself with the intention to disrupt the execution of that warrant. 9.

Reliance can also be placed upon the judgment of this Court rendered in CRM-M-1513-2009 tiled as "Mehar Singh And Anr. vs State of Punjab" wherein it was held as under:

"In the present case, since the petitioners were already residing in Canada before the registration of FIR in question i.e. since the year 1997, there was no occasion for them to conceal themselves or abscond. A perusal of order dated 7-10-2008 (Annexure P-10) and order dated 21-12-2007 (Annexure P- 4) does not reveal that the petitioners were ever attempted to be served in Canada especially when there was no material on record that the petitioners had left the country after the registration of FIR in question with a view to abscond or conceal themselves. Rather in the inquiries conducted by the police, the petitioners were found to be innocent because the alleged papers in question were prepared in Canada. Thus, the petitioners were declared proclaimed offenders in violation of Section 82, Criminal Procedure Code. Accordingly, the impugned order dated 7-10-2008 (Annexure P-10), whereby the petitioners were declared proclaimed offenders, is set aside."

10.

A perusal of the judicial record reveals that no effort was made to effect personal service of the petitioner through the embassy of India located in the concerned country where the petitioner was residing at the relevant time, thus, making it clear that the impugned order was not passed in consonance with the mandate of Sections 82 & 105 of Cr.P.C. and is not sustainable in the eyes of law.

11.

Therefore, in light of the afore-said judicial pronouncements and discussions made hereinabove, this Court is of the firm view that the impugned order dated 17.07.2008 passed by the JMIC, Phillaur, vide which the petitioner has been declared proclaimed offender, is not sustainable in the eyes of law.

CRM-M-17514-2025(O&M) 4 12.

In view of the above, the present petition stands allowed and the impugned order dated 17.07.2008 passed by the JMIC, Phillaur is set aside/quashed subject to payment of Rs.50,000/- to be deposited by the petitioner(s) in Poor Patient Welfare Fund, PGIMER, Chandigarh. However, the petitioner is directed to surrender before the Court concerned within a period of two months and move an appropriate application along with receipt of cost and the trial Court concerned would release the petitioner on the bail bonds and surety bonds to its satisfaction. In case he fails to appear before the trial Court on the said date, this order would be of no avail to the petitioner.

Pending miscellaneous application(s), if any, also stands disposed of.

(KIRTI SINGH) JUDGE 30.04.2025 Kavita Nain Whether speaking / reasoned Yes/No Whether Reportable Yes/No