← Library
High Court of Punjab and HaryanaCRM-M/43941/2021disposed of

Harjinder Singh v. State Of Punjab

2022-02-03Mr. Justice Sureshwar Thakur6 pages

-1In the High Court of Punjab and Haryana at Chandigarh Date of Decision: 03.2.2022 Harjinder Singh ......Petitioner

Versus

State of Punjab ......Respondent CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR

Present:

Mr. S.P.Soi, Advocate and Mr. Sahil Soi, Advocate for the petitioner.

**** SURESHWAR THAKUR , J.

(ORAL) (Through video conferencing) CRM-86-2022 1.

The present application has been filed for preponing the date of hearing of main case.

2.

For the reasons recorded in the application, the application is allowed. The main case is preponed, and, is taken up on board for hearing today.

CRM-80-2022 The application is allowed as prayed for. Annexures P-7 to P-9 are taken on record.

CRM-M-43941-2021 1.

The petitioner, by filing the present petition under Section 482 of the Cr.P.C., is seeking the quashing of FIR No. 59 of 28.2.2020 (Annexure P-1), registered against him, at the Police Station Sadar Tarn Taran, District Tarn Taran, subsequent to the passing of the order dated 31.8.2019, wherethrough, he was declared a proclaimed offender, by the learned Judicial Magistrate Ist Class, Tarn Taran.

-22.

Heard.

3.

The petitioner is alleged to commit an offence under Section 138 of the Negotiable Instruments Act (in short "the NI Act"). An apposite complaint was filed against him, and, it stands dismissed as withdrawn, on 11.09.2021 (Annexure P-6), by the convened National Lok Adalat, as, the cheque amount became liquidated by the petitioner-accused to the complainant, and, hence the lis becoming compromised inter se both. Therefore, obviously, there is no imperative necessity for the petitioner to cause his appearance before the Court concerned, nor, hence, any lawful purpose rather survives, in taking to the extreme end, the challenged processes, as become initiated, against the petitioner qua his wilful nonappearances, if any. 4.

During the course of judicial proceedings, a perusal of the order of 7.8.2019 (Annexure P-2), as, made by the learned JMIC, Tarn Taran, reveals that the proclamation of the accused-petitioner was effected on 25.7.2019, but since the mandatory period of 30 days had not elapsed, the appearance of the petitioner-accused was awaited till 31.8.2019. The learned Magistrate concerned, has also placed reliance on the statement of the police official concerned, who had made a statement on 7.8.2019 (Annexure P-7), that he had visited the abode of the accused. However, the accused was not found at the given address, hence, he affixed one copy of the proclamation warrant outside the Court, affixed the second copy outside the house of the accused, and, affixed the third copy at a conspicuous place. Thereafter on 31.8.2019, the learned Magistrate concerned, after considering the afore made report, of the police official concerned, made an objective conclusion, that since the period of 30 days has elapsed, since the

-3making of, and, service, or of publication of proclamation, thereupon, he proceeded to make an order, declaring the petitioner, as, a proclaimed offender, and, also, a direction was made, upon the SHO concerned, for registration of an FIR against the accused-petitioner herein, hence under Section 174-A of the Cr.P.C.

5.

The order of 31.8.2019 is challenged, and, also is strived to be quashed by the petitioner, through his recoursing the mandate of Section 482 of the Cr.P.C. The petitioner would succeed in his endeavour (supra) in case, upon a reading, of the report of the serving/executing officer, which became depended, upon by the learned Magistrate concerned, to proceed to draw the impugned order of 31.8.2019, suffers from a gross perversity, and, infirmity, inasmuch as its breaching the mandate of sub-Section (2) of Section 82 of the Cr.P.C. In making a determination, whether the mandate occurring in sub-Section (2) of Section 82 of the Cr.P.C. has been breached, or not, by the learned Magistrate concerned, in his making the impugned order, it becomes imperative to extract provisions thereof, provisions whereof become extracted hereinafter.

Importantly so, as on a deep reading thereof(s), all the ingredients carried therein, are required to be completely complied with, both by the executing officer concerned, who made a report / statement, and, also are to be reflected, to be complied with, in the impugned order, as made by the learned Magistrate concerned. "82. Proclamation for person absconding.

(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

-4such 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."

6.

A circumspect and deepest reading, of the afore extracted relevant portion of sub-Section (2), discloses that the notice of proclamation, is required to be given effect to, or is required to be peremptorily executed in the mode enshrined therein, as its salutary purpose is to bring an awakening in the persons concerned, who purportedly deliberately avoid causing of valid service, upon him/them, for any relevant purpose, rather about the date(s) mentioned therein. Since the afore awakening, carried in sub-Section (2), would ensure that may be hence they cause his/their appearance(s) before the Court concerned, as, also hence would obviate the drawings of further stigmatic proceedings contemplated, under Section 83 of the Cr.P.C., by the Court concerned.

Therefore, all the provisions carried in sub-Section (i) of sub-Section (2) of Section 82 of the Cr.P.C., are to be cumulatively complied, and, or that all the provisions carried in sub-Section (i) of sub-Section (2) of Section 82 of the Cr.P.C., require(s) theirs being meted completest conjunctive compliance by the serving/executing officer, and or that the provisions (supra) are to be not meted compliance in the alternate.

7. Consequently, in the report, as became relied, upon by the executive officer, and, as became depended upon by the learned Magistrate concerned, to make the impugned order, disclosures are to occur, that each of

-5the ingredients carried in all the afore provisions, borne in sub-Section (i) of sub-Section (2) of Section 82 of the Cr.P.C., became meted absolute, and, completest compliance, without any of them remaining uncomplied with. 8.

However, though the serving executing officer has in his report, made a disclosure that he had, on finding, that the accused was not found at the given address, at the relevant time, hence affixed, one copy of the proclamation on the given address of the accused, and, has also made a disclosure therein, that one copy of the proclamation became appended, at the conspicuous place, and, besides one copy became appended at the Judicial Court complex. However, a reading of the afore report, does not disclose, that he had also, as enjoined by the provisions (supra), read it publicly in some conspicuous place of the town or village, in which the accused ordinarily resides. Since the mandate of sub-Clause (a) of sub-subSection (i) of sub-Section (2) of the Section 82 of the Cr.P.C.

, was also to be complied alongwith compliance being meted by the executing officer with Clause (b), and, Clause (c) of sub-sub-Section (i) of sub-Section (2) of Section 82, of the Cr.P.C., whereas, a reading of the apposite report, not disclosing that he had also meted compliance to Clause (a) of subsubSection (i) of sub-Section (2) of Section 82, of the Cr.P.C, thereupon, his report is in departure of the statutory injunction, as therethrough(s) rather became cast upon him. Consequently, the knowledge of the proclamation notice, was not hence completely acquired by the petitioner, and, also the endeavour of the executing officer to serve the proclamation notice, upon, the accused, is completely deficit on score (supra). 9.

Be that as it may, even the impugned order (supra), hence suffers from a vice of infirmity. Conspicuously, since the mens rea for the

-6commission of an offence under Section 174-A of the IPC, arises only, when the completest compliance, rather becomes meted with the peremptory statutory injunctions carried, in the entire component(s) of sub-sub-Section (i) of sub-Section (2), of Section 82 of the Cr.P.C., whereas, when for reasons (supra), a segment thereof remains uncomplied. Therefore, It was rather imperative, for the learned trial Magistrate concerned, to thereafter recourse the mandate of sub-Section (ii) of sub-Section (2) of Section 82 of Cr.P.C., inasmuch as, after his receiving the report of the executing officer, his proceeding, to make an order for publication of the proclamation notice, in the daily newspaper, hence circulating in the area in which the accused ordinarily reside(s).

The learned Magistrate, however, did not after the afore deficit report of the executing officer, being made, recourse the mandate of sub-Section (ii) of sub-Section (2) of Section 82 of Cr.P.C. Consequently, the deficit report of the executive officer could not validly bedrock any further conclusion, that the petitioners ever nursed any penally inculpable, mens rea, for an offence under Section 174-A of the IPC. 10.

In view of the above, the petition is allowed, and, the order dated 31.8.2019, declaring the petitioner, as a proclaimed offender, as also, FIR No. 59 of 28.2.2020, registered at Police Station Sadar Tarn Taran, District Tarn Taran, constituting therein an offence under Section 174-A of the IPC, as well as subsequent proceedings arising therefrom, are quashed. (SURESHWAR THAKUR) JUDGE February 03, 2022 Gurpreet Whether speaking/reasoned :

Yes Whether reportable :

Yes/No