Pushpinder Singh And Another v. State Of Punjab And Others
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
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Present: Lt. Col. P. K. Saran, Advocate for the petitioners.
Mr. Satjot Singh, AAG, Punjab.
Mr. Amarjeet, Advocate for for respondent Nos. 2 and 3.
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1.
The instant petition had been filed under Section 482 Cr.P.C. originally by both the petitioners making prayer for quashing of FIR No. 27 dated 04.03.2020, registered under Sections 498A and 406 of IPC at Police Station Women, Police Commissionerate Jalandhar (Annexure P1) along with all the subsequent proceedings arising therefrom. Petitioner No. 1 Pushpinder Singh had also made additional prayer for quashing of non bailable warrants issued against him on 19.06.2020 (Annexure P16) as well as order dated 30.06.2020 (Annexure P17) passed by the trial Court, whereby proceedings under Section 82 Cr.P.C. were ordered to be initiated against him. It is important to mention here that subsequently during the pendency of this
petition, petitioner No. 1 has also filed an application bearing challenging the order dated 16.11.2021 (Annexure A12), whereby he was declared a proclaimed offender. 2.
Before proceeding further, it is also considered to be proper to mention that since petitioner No. 2Jasbir Kaur had already joined the proceedings of trial after being extended benefit of bail and since this Court was not inclined to consider the question of quashing the impugned FIR, before determining the point as to whether order declaring petitioner No. 1 as proclaimed offender as well as the proceedings initiated against him in this regard were liable to be set aside or not, therefore, with the consensus of learned counsel for the parties, vide order dated 14.11.2023, it was ordered that the arguments by the parties and relief claimed shall be restricted only to the extent to which the proceedings under Section 82 Cr.P.C. initiated against petitioner No. 1 were challenged and further to the extent of quashing of order dated 16.11.2021.
3.
Sans unnecessary details, the aforementioned FIR had been registered on the basis of a written complaint submitted by respondent No. 3/Sarabjit Singh against the petitioners, who are husband and motherinlaw respectively of his daughter Jashandeep Kaur i.e. respondent No. 2. Respondent No. 2 is a permanent resident of Canada since the year 2017. She was married with petitioner No. 1Pushpinder Singh on 18.10.2015
. The petitioner and respondent No. 2 had already shifted to Canada. The complainant alleged that at the time of performance of roka/engagement ceremony as well as at the time of marriage
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of his daughter with the petitioner, he had spent huge amount money on account of demands made by the petitioner and his family members. However, after marriage of his daughter with the petitioner, she was not treated properly by her inlaws. Even when she had shifted to Canada with the petitioner, her entire jewellery was taken into custody by her motherinlaw. He also alleged that petitioner and his family members had been raising demand of an amount of Rs. 10 Lakhs, if he wanted to settle his daughter in her matrimonial house and she was continuously subjected to cruelty on account of their demands. On his complaint, a case under Sections 406 and 498A of IPC was registered against the petitionerhusband, his mother and one Satinder Kaur, who is aunt () of the petitioner.
As per the further allegations, after registration of FIR, initially notices and then nonbailable warrants were issued against the petitioner. In the month of June, 2020, the Investigating Officer moved an application before the concerned Illaqa Magistrate for issuing nonbailable warrants against the petitioner, which were issued for 24.06.2020. Then vide order dated 30.06.2020 (Annexure P17), proclamation was ordered to be issued against him for 03.08.2020. The petitioner in the interregnum had moved an application for grant of anticipatory bail on 08.07.2020 and vide order dated 13.08.
come to India within 60 days of resumption of commercial flights, his bail will be cancelled. The petitioner had joined the investigation through Whtasapp and other electronic modes and vide order dated 18.08.2020 (Annexure P21), the concerned Magistrate had recalled the order dated 30.06.2020, whereby the proclamation was ordered to be issued against him. However, subsequently, the application for grant of anticipatory bail had been dismissed by learned Additional Sessions Judge, Jalandhar, vide order dated 04.01.2021.
4.
It is further revealed from record that thereafter, an application was filed by the petitioner for staying the proceedings initiated against him for declaring him a proclaimed offender. The said application had been contested by the State as well as the complainant. Vide order dated 21.01.2021, the concerned Magistrate had disposed of the said application by observing that it was a premature stage to declare him a proclaimed person/offender and directed the counsel for the petitioner to ensure his presence within reasonable time, so that trial proceedings could not be delayed for an indefinite period of time. This order dated 21.01.2021 was challenged by the complainant by filing a revision petition bearing CRR10 of 2021, titled as ! "
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and vide order dated 13.08.2021 (Annexure A 7), the Court of learned Additional Sessions Judge, Jalandhar set aside the order dated 21.01.2021 by observing that the earlier order, passed by the Magistrate whereby proclamation was issued against the petitioner, could not be recalled and directed the parties to appear before the trial Magistrate on 18.08.2021. Thereafter, vide order dated 21.09.2021 (Annexure A8), the trial Magistrate had passed the following order:
"Exemption application on behalf of accused Jasvir Kaur filed today, which is considered and allowed for the reasons stated therein.
Reply to application dated 02.09.2019 not filed by the APP for the State. However, the same has been orally contested by the learned APP by stating that the presence of accused Pushpinder Singh cannot be exempted during trial as till today he has not joined in the investigation and has failed to comply with the orders of the learned AS.J, Jalandhar, as a result of which, his anticipatory bail application has already been dismissed by the learned ASJ, Jalandhar on dated 04.01.2021. He further submitted that mere pendency of quashing petition i.e. CRMM 41674 2020 cannot put stay on the proclamation proceedings already initiated against him in this case. He prayed for the dismissal of the application.
Heard. It is given in the application that accused Pushpinder Singh is suffering from LVOT (a rare and very serious heart disease) and underwent open heart surgery in Canada. He is physically unable to attend the court. Restrictions have been imposed on him to travel by air or road. He is continuously cooperating with the police in the investigation since inception of this case. So his presence may be exempted on the aforesaid grounds. It is further prayed in the application to decide another application dated 15.03.2021 for directing investigating officer to submit final police report in this case.
It is prime facie from the record that on dated 17.06.2020, the police agency/IO has prayed for non bailable warrants of accused Pushpinder Singh from the learned predecessor court, which was allowed by the learned court and matter was posted for 24.06.2020 and for 30.06.2020. On dated 30.06.2020, the learned predecessor
court after considering the fact that accused intentionally concealed himself from this case, issued proclamation process against him and the matter was further posted for 03.08.2020. As per record, in the meantime, the accused Pushpinder Singh applied for anticipatory bail before the learned ASJ, Jalandhar in BA25032020 which was allowed by the learned court on dated 13.08.2020 by imposing various conditions on the accused by specifying that if he fails to come to India within 60 days of resumption of commercial flights, his bail order may not be confirmed or may be canceled and the matter was again posted for 17.10.2020, 21.10.2020 and 04.01.2021. On dated 04.01.
2021, the learned ASJ, Jalandhar while dismissing the anticipatory bail of accused Pushpinder Singh specifically observed that the accused does not seem to be serious in complying with the directions of the court by not joining the investigation before the police. The court further observed that the accused instead of joining the investigation, is pursuing his divorce case in Canada and held that it is a case of total noncooperation by the accused and his bail is not required to be confirmed. The learned ASJ, Jalandhar, thereafter, dismissed the anticipatory bail of the accused Pushpinder Singh on dated 04.01.2021.
It is further prima facie from the record that after aforesaid dismissal, accused Pushpinder Singh again filed another application for staying the proclamation proceedings before the learned predecessor court which was initially allowed by the learned court on dated 21.01.2021 by imposing certain conditions on the accused. This order was also challenged by the complainant in revision No.CRR10 of 2021 before the learned ASJ, Jalandhar. The learned court in revision while setting aside the order dated 21.01.
Pushpinder Singh is intentionally delaying the investigation of the present case and filing applications before the courts knowing fully well that his presence is required. The court observed that accused Pushpinder Singh has not complied with the orders of the learned ASJ, Jalandhar and has not joined the proceedings despite clear directions, thus, the order issuing proclamation of the accused, who is concealing himself, cannot be recalled. Therefore, in view of the aforesaid discussion and considering the conduct of accused Pushpinder Singh in this case, his presence cannot be exempted in any manner as his presence is very much required to conclude the investigation of this case. Hence, present application stands dismissed.
Since, in this case the police has already presented challan on dated 02.09.2021, the second relief claimed in the application become infructuous.
As per record, proclamation against accused Pushpinder Singh has already been completed by ASI Palwinder Singh on dated 26.07.2020. Let the statement of serving official be recorded on 27.09.2021. Separate notice to ASI Palwinder Singh be also issued for the date fixed." 4.
Thereafter, the trial Magistrate passed the following order on (Annexure A12):
"Reply to the application dated 14.10.2021 not filed. However, the same has been orally contested by the Ld. APP by stating that the present application is not maintainable as the proclamation proceedings already completed against the accused Pushpinder Singh on dated 14.10.2021 cannot be set aside. In fact accused Pushpinder Singh despite clear directions of the court failed to appear
before the investigation officer and violated the directions of the court. Since, there is no stay to the proceedings initiated and completed against the accused Pushpinder Singh by any higher court, the present application is liable to be dismissed.
Heard on the application for setting aside proclamation proceedings initiated against accused Pushpinder Singh by the Ld. Predecessor court on dated 30.06.2020 and for not invoking further proclamation proceedings against him. It is given in the application that present FIR has been registered against the accused Pushpinder Singh is lacking territorial jurisdiction of the court and not maintainable in any manner. After the registration of this FIR, accused was constantly in touch with the investigation officer through social media, Email and through phone but taking benefits of his absence, due to his medical restrictions, certain false statements have been made by the prosecution before the Ld. Predecessor court, result of which proclamation proceedings were initiated against accused pushpinder Singh, the same are liable to be set aside.
It is prima facie from the record that on the earlier occasion, similar applications were also filed by the accused Pushpinder Singh in this case at pre trial stage as well as at the post trial stage. As per record, the allegations put forth in the present application has already been duly considered by the Ld Predecessor of this court, by this court and by the Ld. ASJ, Jalandhar in criminal revision no. 10 of 2021 and the same has already been declined by observing that accused Pushpinder Singh is intentionally delaying the process of this case and filing applications before the courts knowing fully well that his presence is very much required in the present case. It has also been
observed that accused Pushpinder Singh has not complied with the orders passed by the Ld. ASJ, Jalandhar and has not joined the proceedings despite clear directions. Thus, in view of the aforesaid discussion, there is no need to pass similar order again. Accordingly, present application stands dismissed.
As per record, proclamation u/s 82 Cr.P.C. against accused Pushpinder Singh has already been effected in this case. Statement of executing officer has already been recorded. Statutory period of 30 days after the effecting of proclamation has already been elapsed but neither accused appeared before the Court nor any intimation has been received on his behalf.
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Reply to another application for permanent exemption of accused Jasvir not filed. On request, be filed on 10.12.2021.Appearance of accused Jasvir be awaited for date fixed."
5.
Feeling aggrieved with the order dated 30.06.2020 and order dated 16.11.2021, the main petition as well as have been filed by the petitioner by raising following contentions that: (I) The FIR was not lodged by respondent No. 2, who was wife of the petitioner, but by her father, whereas the petitioner as well as respondent No. 2 were residing in Canada at that time and no cause of action had accrued to lodge FIR at Jalandhar;
(II) The Investigating Officer had managed to get issued nonbailable warrants as against the petitioner from the
trial Court by concealing the fact that he was residing in Canada and even while procuring the order for initiation of proceedings under Section 82 Cr.P.C., this fact was concealed.
(III) The trial Court had rightly passed the order dated 21.01.2021 since there was no evidence to suggest that the petitioner had absconded or was concealing himself from execution of warrants of arrest. Rather, he was putting in appearance through his counsel as he was residing in Canada and had also joined investigation through Whatsapp/telephonic conversation. Therefore, it was premature stage to declare him as a proclaimed offender. However, without granting any opportunity to the petitioner to put in appearance to join further proceedings, the order dated 21.01.2021 had been challenged by filing CRR102021 by the complainant.
(IV) The order dated 13.08.2021, as passed in by the revisional Court, was not sustainable at all in the eyes of law and the revisional Court gravely erred in observing that the order dated 30.06.2020, whereby proclamation was ordered to be issued against the petitioner, could not be recalled, though such recall had not been challenged earlier.
(V) The order dated 21.09.2021, passed by the trial Magistrate, observing that proceedings of proclamation
initiated in pursuance of order dated 30.06.2020 stood completed on 26.07.2020 and further posting the case for 27.09.2021 for recording the statement of the executing Constable and then passing the order dated 16.11.2021 declaring the petitioner a proclaimed offender on the basis of the statement recorded by the executing police official qua his publishing the proclamation for 03.08.2020, was against the spirit and provisions of Section 82 Cr.P.C. and hence was not sustainable in the eyes of law and are liable to be quashed.
6.
Learned State counsel, assisted by learned counsel for respondent Nos. 2 and 3, has submitted that the main petition as well as the connected application bearing have been filed by the petitioner by misusing the process of law. He was nominated as an accused in the aforesaid FIR and notices were issued to him and as the benefit of interim anticipatory bail had been granted and subsequently declined to him, therefore, it was incumbent upon him to cause appearance before the trial Court. He was very well aware of the proceedings pending against him. He was still avoiding appearance and kept on moving applications to stall the proceedings. Therefore, he urged that the petitioner was rightly declared a proclaimed offender and accordingly impugned orders do not deserve to be quashed. 7.
I have heard learned counsel for the parties at considerable length and have also gone through the material placed on record carefully. 8.
Before delving further, I consider it appropriate to mention that though the main petition had been filed by the petitioner at the stage when the
proceedings under Section 82 Cr.P.C. were initiated against him, vide order dated 30.06.2020, however, since subsequently, it is mainly the order dated 16.11.2021, which is ultimate subject matter of challenge, therefore, core question, which requires consideration by this Court, is as to whether order dated 16.11.2021, whereby the petitioner was declared a proclaimed offender on the basis of order dated 30.06.2020, is sustainable in the eyes of law or not ? For this purpose, let us firstly go through the provisions of Section 82 Cr.P.C., which provide for publication of a proclamation against a person and which read as under:
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(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 Courthouse;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper
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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 subsection (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 subsection (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 subsections (2) and (3) shall apply to a declaration made by the Court under subsection (4) as they apply to the proclamation published under subsection (1)."
9.
The essential requirements of Section 82 of the Cr.P.C. for issuance and publication of proclamation against an absconder and declaring him as proclaimed person/offender may be summarized as under: (i) Prior issuance of warrant of arrest by the Court is
he Court has to first issue warrant of arrest against the person concerned. (See '& ($ ) * + $ ,$ - ).
(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.. (See '& ($ ) * + $ ,$ - ).
(iii) The Court cannot issue the Proclamation as a matter of course because the Police is asking for it. The Court must be
satisfied that the person has absconded or is concealing himself so that the warrant of arrest, previously issued,
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(vi) The Proclamation has to be published in the manner laid down in Section 2 (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 Courthouse. The three subclauses (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.
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>$.$ * 6, 3+ 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. (See . ) ($ * 2-+ 6, 2-).
(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. (See . ) ($ * 2-+ 6, 2-).
(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 noncompliance therewith cannot be cured as an 'irregularity' and renders the Proclamation and proceedings subsequent thereto a nullity.
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On applying the above discussed position of law to the peculiar facts and circumstances of the present case and at the cost of repetition, it is mentioned that the trial Court had initiated the proceedings for declaring the petitioner as a proclaimed offender, vide order dated 30.06.2020 for 03.08.2020. As already discussed above, during the intervening period, the petitioner had moved an application for grant of anticipatory bail and had been granted benefit of interim anticipatory bail by the Court of learned Additional Sessions Judge, Jalandhar, subject to his joining investigation and by laying down certain other conditions. The said bail application was ultimately dismissed on 04.01.2021 as the petitioner could not join further investigation. Thereafter, the petitioner moved an application before the trial Magistrate for staying the proclamation proceedings and vide order dated 21.01.2021 (Annexure A6), the trial Magistrate had given direction to the petitioner to join investigation proceedings by observing that it was a premature stage to declare him as a proclaimed offender.
11.
It is further revealed that the revisional Court, vide order dated 13.08.2021, had set aside the order dated 21.01.2021 by giving direction to the
parties to appear before the trial Court and by holding that the order dated 21.01.2021, whereby it was observed by the trial Court that the order issuing proclamation could not be recalled, was not sustainable. Then, the trial Court, by passing the order dated 16.11.2021 and while observing that since after issuance of order dated 30.06.2020, the executing police official had published the proclamation dated 26.07.2020 and thereafter by adjourning the case further for recording statement of the executing police official and after recording the same, declared the petitioner as a proclaimed offender. 12.
On going through the record, in the considered opinion of this Court, the order dated 16.11.2021 is not at all sustainable in the eyes of law in view of the fact that apparently and evidently, the provisions of Section 82 Cr.P.C. were not at all complied with while passing this order. Again at the cost of repetition, it is mentioned that the order qua issuance of proclamation as against the petitioner was passed only on 30.06.2020 for 03.08.2020. Then this order stood recalled, therefore, the fact that the executing police official had published the proclamation on 26.07.2020, the said publication/pasting of proclamation notice had lost any relevance or consideration, mainly due to two reasons. The first reason is that the provision of Section 82(1) Cr.P.C.
make it mandatory that the proclamation requiring appearance of the accused must be published at a specified time not less than 30 days from the date of publication of such proclamation, whereas in this case as per version of the prosecution itself, the proclamation issued for 03.08.2020 was published on 26.07.2020. Meaning thereby, it was not published providing at least a period of 30 days to petitioner to cause his appearance before the trial Court.
culminated as vide order dated 18.08.2020 passed by the Magistrate, it had been recalled before the date specified for appearance of the petitioner, therefore, to comply with the provisions of Section 82 Cr.P.C., it was incumbent upon the Investigating Officer/prosecution to move a fresh application for initiation of proceedings under Section 82 Cr.P.C. against the petitioner for declaring him a proclaimed person/offender, whereas at no point of time, either any application had been moved by the prosecution for issuance of fresh proclamation against the petitioner or even any oral request had been made in this regard. Further, the revisional Court also did not take into consideration the fact that the fresh proclamation was required to be issued against the petitioner and set aside the order dated 21.01.
2021 without giving any direction in this regard, though it was observed by it that the petitioner had been intentionally not appearing before the Court and concealing himself from the proceedings of Court. No doubt, this fact cannot be denied that the petitioiner was very much aware of the proceedings going against him but he could not have been declared a proclaimed offender without strictly complying with the conditions Section 82 Cr.P.C., which unfortunately were not directed to be complied with by the revisional Court while passing the order dated 03.08.2021 nor complied by the trial Court while passing the orders dated 21.09.2021 and 16.11.2021, respectively. 11.
In view of the discussion made above, I have no hesitation to hold that the impugned order dated 16.11.2021 is not sustainable in the eyes of law. The same is accordingly set aside. However, at the same time, it is clarified that since it is very much clear from the record that the petitioner was very well aware about the proceedings initiated against him by way of
issuance of notice under Section 41 Cr.P.C., then issuance of nonbailable warrants and then initiation of proclamation proceedings since the year 2020 and has been making all efforts to avoid his appearance before the trial Court, therefore, he is directed to surrender before the Court concerned within a period of two and a half months from today, subject to order for grant of anticipatory bail, if any passed on petition to be filed under Section 438 of the Cr.P.C. by the petitioner. 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.
12.
Needless 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.
Till the time of his appearance before the trial Court, his arrest shall remain stayed.
& (MANISHA BATRA)
JUDGE Whether speaking/reasoned Yes/No Whether reportable Yes/No