Mohinder Partap Singh v. State Of Punjab And Another
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# / On perusal of the paper book, it is revealed that during the proceedings of case NACT-3354-2023 dated 06.07.2023 as afore-said, warrants of arrest against petitioner Mohinder Partap Singh were directed to be issued initially vide order dated 02.11.2023 and the petitioner surrendered on 06.11.2023. Thereafter, on 20.12.2023, upon application for exempting the petitioner from furnishing regular bail bonds and surety bonds, one more opportunity was granted for furnishing surety bonds and the case was adjourned for serving notice of accusation. On subsequent dates of hearing, application for exemption from personal appearance was filed on behalf of the petitioner which was allowed for that date only. Thereafter, warrant of arrest against the petitioner was again directed to be issued vide order dated 26.02.2024 for 21.03.2024. On 21.03.2024, it was observed that the petitioner is absconding or has concealed himself to avoid the execution of warrants and his presence cannot be secured
through warrants and proclamation was ordered to be issued for 28.05.2024 and Executing Constable was directed to appear for statement on 28.05.2024. On 28.05.2024, proclamation against petitioner was received back duly effected and report and statement of serving Constable was recorded. On the same date, petitioner was declared proclaimed person. Learned counsel lastly contended that the dispute was mediated by the councilors and settlement dated 31.03.2024 was entered by the petitioner. As per the settlement, the complainant was to withdraw the case and petitioner was obligated to make payments. Learned counsel contended that it is due to this reason that petitioner was unaware that he was declared proclaimed person.
4 Learned counsel further contended that as per order dated 28.05.2024, proclamation issued against accused was received back executed and statement of serving constable was recorded in which he stated that the accused was not present at the house and thereafter, he had pasted one copy of the proclamation at the given address, one copy at a conspicuous place in Mohalla and one copy at the notice Board of the Court. Moreover, the proclamation was not publicly read in some conspicuous place of the town where the accused resided and it was thus violation of provisions of Section 82(2)(i)(a) of Cr.P.C and on this score also, proclamation is invalid and a nullity and proceedings under Section 82 of Cr.P.C are thus liable to be quashed. In support of his contentions, learned counsel has placed reliance upon 2022(1) Law Herald 219 - Rahul Dureja and another Vs. State of Punjab, 2021(1) RCR (Criminal) 493 - Harvinder Singh Vs. State of Haryana and another, 2024(1) Law Herald 859 - Mahender Kumar Vs. Housing
Development Finance Corporation Ltd., 2024(1) Law Herald 291 - Ramandeep Singh Sangha @ Ramna Sangha Vs. State of Punjab, and 2024(2) RCR (Criminal) 5- Sukhjinder Singh Vs. State of Punjab and another.
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3. / !# , A perusal of order dated 21.03.2024 shows that the warrant of arrest issued against the accused was received back unexecuted but the reasons as to why the same have not been executed is not mentioned in any of the order. On the same date, the Court recorded its satisfaction that the accused cannot be served through non-bailable warrants and ordered issuance of proclamation under Section 82 Cr.P.C. However, no satisfaction was recorded by the trial Magistrate that accused has either
absconded or is concealing himself to evade the warrants and that he cannot be served in ordinary manner and without recording satisfaction to this effect, the proceedings under Section 82 Cr.P.C. could not have been initiated against the accused which is a grave illegality and proper procedure has not been followed.
- On 28.05.2024, the proclamation was received back executed. In his statement, serving constable stated that he had visited the house of accused but he was not found present there and thereafter, he pasted one copy of proclamation at the given address one copy at conspicuous place in that Mohalla and one copy at the notice board of the Court. However, the proclamation was not read publicly at some conspicuous place of the town, where the accused ordinarily resided. A Coordinate Bench of this Court in Rahul Dureja's case (supra), has held that if there is non- compliance of mandatory provisions of Section 82(2) (i)(a) of Cr.P.C.
and proclamation is not read publicly in same conspicuous place of the town or village where the accused ordinarily resides, the accused is deprived of the knowledge of proclamation and on this score, the proclamation notice is liable to be quashed. In Harvinder Singh's case (supra), it has been further held that if proclamation is not read publicly in the village where accused resided, it is not an irregularity but it renders proclamation and subsequent proceedings as nullity. On this score also, the proceedings initiated under Section 82 Cr.P.C. against the petitioner are invalid.
10.
As a result of aforesaid discussion, I am of the considered opinion that proper procedure has not been followed by the trial Court while declaring petitioner a proclaimed person and the impugned order,
thus, suffers from material irregularities and illegalities and the same is, thus, not sustainable and is liable to be set aside and accordingly, the present petition is accepted and the impugned order dated 28.05.2024 (Annexure P-7), vide which, the petitioner was declared proclaimed person is set aside.
11.
Pending misc. applications(s), if any, shall also stand disposed of.
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