In CRM-M-26772-2022- PUNJ HC – As per mandate of Section 82 (3) Cr.P.C., it is incumbent on Court issuing proclamation to record ‘specified day’ on which proclamation was published: P&H HC – Justice Vikas Suri [24-06-2022]

Read Order: Sarabjit Singh alias Nabi v. State of Haryana

Monika Rahar

Chandigarh, June 30, 2022: While dealing with a quashing plea impugning order declaring the petitioner as a proclaimed offender, the High Court of Punjab and Haryana has recently held that as per the mandate of the provisions contained under Section 82 (3) Cr.P.C., it is incumbent on the Court issuing the proclamation to record the ‘specified day’ on which the proclamation was published.

The Court has also held that the provisions of Section 82 Cr.P.C. are mandatory in nature.

The Bench of Justice Vikas Suri was dealing with a petition under Section 482 of the Cr.P.C. praying for quashing of the impugned order whereby the petitioner was declared proclaimed, in contravention to the provisions of Section 82 Cr.P.C.

An FIR under Section 160 IPC was registered on the statement of Head Constable Dalip Singh, alleging that three young persons were quarrelling with each other on the main road, thereby causing disturbance to public peace. The investigation commenced; a charge sheet was filed and the charge was framed.

After such charge framing, one accused, who was the brother of the other co-accused, died and the proceedings against him abated. On account of the communication gap, as alleged, when the petitioner was informed by his counsel that the proceedings had abated after the death of the co-accused, he got the impression that proceedings culminated against all, which was incorrect. Thereafter, the petitioner did not receive any notice, warrants or was ever made aware of any publication or other proceedings that would have notified him about the pendency of the trial.

On July 15, 2002, the Trial Court ordered a proclamation under Section 82, 83 Cr.P.C. to be issued against the petitioner for November 18, 2002. Thereafter, vide order dated November 18, 2002, the petitioner was declared a proclaimed person under Section 82 Cr.P.C. (mentioned as ‘proclaimed offender’ in the said order).

The counsel for the petitioner contended that the proclamation was not in accordance with the  ‘mandatory’ provisions contained in Section 82 Cr.P.C., and as such, on account of that fact alone, the impugned order deserved to be quashed. It was further submitted that as per the said provisions, the time period between the proclamation and appearance before the Court is required to be more than 30 days and the concerned Court is to record the specified day on which the proclamation was published, in view of the plain language of Section 82(3) Cr.P.C.

Thus, it was the Counsel’s case in the present case, both the above said statutory requirements were not fulfilled. It was also contended that failure to bring on record the specified day of the publication, to demonstrate compliance with mandatory procedural provisions, the same would be fatal to the case of the prosecution.

On the contrary, the State Counsel argued that the alleged incident pertained to the year 2000, the impugned order was passed in 2002 and now even after two decades, proceedings before the trial Court were still pending on account of the absence of the petitioner.

After considering the abovestated submissions, the Court perused the provisions of Section 82 of Cr.P.C. and from such perusal, it was observed that Section 82 (1) Cr.P.C. specifically provides that publication of the written proclamation requiring the person in default to appear at a specified place and time, should not be less than 30 days from the date of publishing such publication.

Further, it was also added that Sub Section (3) further provides that the statement in writing, by the Court issuing the proclamation, to the effect that proclamation is duly published on a “specified day”, in a specified manner, shall be conclusive evidence that the requirement of the said sub-section has been complied with and that the proclamation was published on “such day”.

In the present case, the Court noted that the proclamation was ordered to be issued vide order dated July 15, 2002, for November 18, 2002, and thereafter, the executing constable (police official) who caused the publication in deference to the aforesaid order submitted the report dated November 18, 2002.

From the perusal of such report, the Court noted that the date on which the publication was said to have been effected, was thus not brought before the Court therein and as such, the Court did not record ‘the specified day’ that the proclamation was published on such day, as is mandated by subsection (3) of Section 82 Cr.P.C.

“The Court below has only recorded that the proclamation against the accused has been received back duly effected without specifying the day when the said publication is alleged to have been published”, the Court observed while asserting,“as per the mandate of the provisions contained under Section 82 (3) Cr.P.C., it is incumbent on the Court issuing the proclamation to record the ‘specified day’ that the proclamation was published on such day”.

Thus, in view of the above, the Court was of the considered opinion that the procedure prescribed in the mandatory provisions contained in Section 82 Cr.P.C. having not been strictly followed, the impugned order declaring the petitioner proclaimed person (proclaimed offender) could not be sustained as such and was therefore quashed.