In CRM-M-53614-2021-PUNJ HC-Magistrate duty-bound to ensure that accused sought to be declared as proclaimed offender, is served with notice or at least efforts are made to intimate accused of pending complaint against him: P&H HC Justice Harnaresh Singh Gill [25-04-2022]

Read Order: Partap Singh v. State of Haryana and Another

Monika Rahar

Chandigarh, April 30, 2022: While dealing with a petition against the order of the Trial Court declaring the petitioner as a proclaimed offender, the Punjab and Haryana High Court has held that it was the duty of the Magistrate concerned to ensure that the accused sought to be declared a proclaimed person, had been served with a notice or at least the police had made sincere efforts to intimate the accused of pending criminal complaint against him.

The Bench of Justice Harnaresh Singh Gill said, “As such, the procedure prescribed under Section 82 Cr.P.C., was not followed in letter and spirit before declaring the petitioner a proclaimed offender.”

Essentially, in this case, a complaint case was initiated against the present petitioner. In February 2014, the petitioner went to Australia in order to pursue higher studies and in the meanwhile summons were issued against the petitioner, in March 2015 in respect of this complaint case. 

Thereafter, a bailable warrant was issued against the petitioner, which was received back with a report that he had gone to Australia for higher study. Eventually, the Trial Court vide its impugned order declared the petitioner as a proclaimed offender. Hence, the High Court was approached to challenge this order of the Trial Court. 

It was the case of the petitioner’s counsel that the proclamation proceedings were initiated against the petitioner when he was abroad. It was also submitted that the petitioner was also working in Australia on a work visa after completion of his study. He further contended that while declaring the petitioner a proclaimed person, the provisions of Section 82 Cr.P.C. were not adopted.  

Also, the Counsel brought to the notice of the Court that during the pendency of the above-noted complaint, the matter was compromised between the parties and in pursuance thereof, the complaint was dismissed as withdrawn. 

The Counsel for the second respondent did not dispute the fact that the compromise was effected between the parties and in pursuance thereof, the above-noted complaint was dismissed as withdrawn. He also submitted that he did not have any objection if the impugned order were to be set aside. 

From a perusal of the case record, the Court observed at the very outset that the petitioner shifted abroad in February 2014, but the impugned order declaring the petitioner a proclaimed person was passed on in 2016. The bailable warrant issued against the petitioner was received back with the report that he had gone to Australia for his study. 

Thus, in light of this factual situation, the Court opined that the trial court overlooked the said aspect while passing the impugned order. 

The Court also added that it was the duty of the Magistrate concerned to ensure that the accused sought to be declared a proclaimed person, had been served with a notice or at least the police had made sincere efforts to intimate the accused of pending criminal complaint against him. 

Therefore, the Court concluded that the procedure prescribed under Section 82 Cr.P.C., was not followed in letter and spirit before declaring the petitioner a proclaimed offender. 

Further, Justice Gill asserted that the objective of the coercive mechanism prescribed under the Code of Criminal Procedure is to ensure that the accused remains present before the Court to receive the orders and judgments. 

Also, the Court took into consideration the fact that during the pendency of the main complaint, the matter was amicably settled between the parties and in pursuance thereof, the complaint was dismissed as withdrawn. 

Accordingly, while opining that the presence of the petitioner was not required in the complaint case, the Court allowed the present petition.