In CRM-M-54283-2021-PUNJ HC- Section 82 of CrPC is mandatory in nature and must be adhered to strictly: P&H HC Justice Vinod S. Bhardwaj [16-05-2022]

Read Order: Angrej Singh v. State Of Punjab

LE Correspondent

Chandigarh, June 6, 2022: While dealing with three petitions wherein the petitioners were given a total of 28 days instead of 30 days for their appearance after being declared proclaimed offenders, the Punjab and Haryana High Court has held that the provisions enshrined in Section 82 of the Cr.P.C. are mandatory in nature and have to be adhered to strictly.

The Bench of Justice Vinod S. Bhardwaj was dealing with three petitions under Section 482 of the Cr.P.C. seeking quashing of the order of the Trial Court whereby the petitioners were declared proclaimed offenders in case which resulted from an FIR registered under Section 307, 506, 148 and 149 of the Indian Penal Code, 1860 (IPC) (Sections 302, 212, 323, and 452 of the IPC added later on). 

Essentially, in this case, the Trial Court issued non-bailable warrant against the petitioners and the same were received back unserved and consequently, a satisfaction was recorded by the lower Court to secure the presence of the accused persons through proclamation under Section 82 of the Cr.P.C. 

The proclamation was published and affixed/pasted at conspicuous places where the accused persons were residing and one copy of proclamation was also affixed/ pasted in the Court house on August 09, 2021. Eventually, the petitioners were declared proclaimed offenders on September 13, 2021. 

It was the case of the petitioners’ counsel that that the order of proclamation declaring the petitioners as proclaimed offenders was passed without complying with the mandatory provisions of Section 82 of the Cr.P.C. It was argued that the mandatory period of 30 days is required to be provided to the accused and that in the event of such mandatory period not being provided, any subsequent adjournment beyond the aforesaid period cannot be treated as compliance of the provisions of Section 82(1) of the Cr.P.C. 

It was the case of the petitioners’ counsel that the presence of petitioners was ordered to be procured through proclamation vide order dated August 05, 2021 for Sepetmber 07, 2021. He thus contended that proclamation having been published on August 09, 2021, both dates i.e. August 09, 2021 and September 07, 2021 have to be excluded from the computation of period of 30 days in terms of Section 9 of the General Clauses Act, 1897.

Further, after referring to the provisions of Section 82 of the Cr.P.C., it was contended that since the date of proclamation mandating the petitioners to appear before the Court was September 07, 2021 and the publication having been done only on August 09, 2021, the date of commencement and the last date in the said series being required to be excluded, the proclamation thus did not provide a clear period of 30 days and instead was done after a clear period of 28 days only.

On the contrary, the State counsel submitted that even though the period of 30 days may have expired on September 07, 2021 only, however, the petitioners were actually declared as a proclaimed offenders vide order dated September 13, 2021 and as such, no prejudice was caused to the petitioners and that no such benefit, as sought by the petitioners, can be extended to them. 

The Counsel, however, could neither dispute the applicability of Section 9 of the General Clauses Act, 1897 nor could he refer to any judgment or statutory provisions to the contrary as would necessitate that the said dates too must be included/computed for counting of 30 days. 

On the aspect of the Section 482 of Cr.P.C. being mandatory in nature, a reference was made to the judgment of Shokat Ali Vs. State of Haryana and another reported as (2020)2 RCR (Criminal) 339 wherein it was held that any subsequent adjournment in the matter cannot be treated as compliance of the provisions of Section 82 of the Cr.P.C. and that order of proclamation cannot be sustained or deemed to be valid in case the mandatory statutory period of 30 days is not furnished to the accused to cause his appearance.

Thus, in light of the above, the Court held that the provisions enshrined in Section 82 of the Cr.P.C. are mandatory in nature and have to be adhered to strictly.

In view of the factual matrix noticed above and the above-cited judgment as also the statutory provisions enshrined in Section 9 of the General Clauses Act, 1897, the impugned order was set aside.