P&H HC sets aside Order of proclamation issued against accused living abroad, as no attempt was made by concerned Court to serve summons to him through Ministry of External Affairs

Read Order: Jaswinder Singh v. State of Punjab and another

Monika Rahar

Chandigarh, February 11, 2022: While agreeing to the view taken by the High Court of Delhi as also with the decision of the Coordinate Bench of the Punjab and Haryana High Court, the Bench of Justice Karamjit Singh has reiterated that the order of the trial court issuing proclamation against an accused residing outside India is bound to be set aside if the court concerned does not get summons served upon such an accused through Ministry of External Affairs. 

The Bench said in this regard, “Delhi High Court in Sunil Kumar v. State, 2002 (1) RCR (Criminal) 119 and this Court in Kashmir Ram’s case (supra) held that when the accused is residing in foreign country and no attempt is made to serve summons through Ministry of External Affairs, order of proclamation of the accused is liable to be set aside.”

In the instant case, the court was dealing with a petition under Section 482 of the Cr.P.C. challenging two trial court orders, issuing a proclamation against the petitioner under Section 82 Cr.P.C. and subsequently declaring him as a proclaimed person in an FIR registered against him under Sections 353, 186, 332, 148, 149 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984.

It was the case of the petitioner’s counsel that the FIR in the present case was registered against unidentified persons and subsequently the petitioner was arraigned as accused in the case. The counsel also argued that the petitioner did not have the knowledge of the pendency of any such case as charge-sheet was not presented in his presence in the Court concerned. He further submitted that the petitioner was not available in India, and that he was residing in Spain and thus, the present petition was filed through his attorney (his mother). 

Assailing the lower court orders, the counsel also contended that the orders under challenge were passed in violation of Section 82 of Cr.P.C. and hence were illegal. In support of his case, he relied upon the decision  of the Punjab & Haryana Court in Kashmir Ram v. State of Punjab, CRM-M-53893-2007, wherein the proceedings under section 82 of Cr.P.C. were quashed as the petitioner was not residing in India and no attempt was made to serve summons to him through the ministry of external affairs before proceeding against him under section 82 of Cr.P.C.

On the other hand, counsel for the State contended that there was no illegality in the impugned orders which were passed by the trial Court following the procedure provided under Section 82 Cr.P.C. 

Coming to the factual scenario of the case at hand, the Court observed that, in its order dated January 12, 2016, the trial Court after receiving report that the petitioner (accused) was living abroad, directed to issue proclamation against the petitioner for February 4, 2016. The Court further observed that the said proclamation was received after due execution as was evident from order February 4, 2016 order. 

Further, since the statutory period of 30 days had not lapsed, the trial Court adjourned the case to the first day of next month (March) for awaiting presence of the petitioner. Finally, on March 1, 2016, as none appeared on behalf of the petitioner, he was declared as proclaimed person by the trial Court. 

Considering the above-stated position, the High Court came to the conclusion that the period of less than 30 days was given to the petitioner from the date on which written proclamation was published as per which the petitioner was to appear in the Court on  February 4, 2016. 

The court also pointed out that the order of the trial court listing the matter on March 1, 2016 just to complete the statutory period of 30 days,  could not be treated as compliance of the provisions of Section 82(1) Cr.P.C., as was held in the judgment of the Punjab & Haryana High Court in Ashok Kumar v. State of Haryana and Another, CRM-M-13638-2013 . 

Lastly, the court observed that even when the petitioner accused was residing outside India in a foreign country, the trial court made no attempt to serve summons to the petitioner through the Ministry of External Affairs and that the proclamation was also not published in any newspaper. 

Thus, the petition was allowed and the order declaring the petitioner as a proclaimed person was set aside.