Proclamation was not effected as per Sec.82 of CrPC, as time period of 30 days was to be reckoned from date of execution & not from date of issuance of proclamation: P&H HC

Read Judgment: Avtar Singh v. State of Punjab 

Tulip Kanth

Chandigarh, November 30, 2021: The Punjab and Haryana High Court has held that the proclamation was not effected as per the provisions of section 82 of the Cr.P.C., as the time period of 30 days was to be reckoned from the date of the execution and not from the date of issuance of proclamation.

Herein, the Petition was preferred by the petitioner under Section 482 Cr.P.C. for quashing impugned order dated August 20,2018 passed by the Chief Judicial Magistrate,whereby he had been declared as Proclaimed Offender in a case pertaining to section 27 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

On May 22,2014, the petitioner along with three others was apprehended by the police party while consuming intoxicant substance with the help of candle and match box. An unburnt match box, silver foil and candle were recovered on their personal search, on the basis of which, the present FIR was registered.

Petitioner was granted regular bail by the Trial Court. After the concession of regular bail, the petitioner put in appearance before the trial court up to 11.01.2018, on which date, neither petitioner nor his counsel put in appearance. Later, as a result of the absence of the petitioner, the Trial Court cancelled the bail & surety bonds and forfeited the same to the State by an order dated January 11,2018  and he along with co-accused was ordered to be summoned through non-bailable warrants of arrest for February 23,2018. 

On  February 23,2018, non-bailable warrants of arrest qua petitioner were received back with the report that his house was found locked. Consequently, finding that presence of petitioner could not be procured through ordinary process, he was summoned through proclamation under Section 82(1) Cr.P.C., returnable by April 23,2018 by the Trial court by Order dated February 23,2018. 

The proclamation was not received back on April 23,2018 and on July 4,2018, petitioner was again ordered to be summoned under section (82)(1) Cr.P.C. for August 7,2018. On 7th August, HC Harjinder Singh appeared in the court and returned the proclamation of petitioner Avtar Sigh, however, he did not sign the statement recorded in the court on oath and skipped away. The matter was adjourned for August 20,2018 for awaiting the presence of petitioner and HC Harjinder Singh was also ordered to be summoned through non bailable warrants for the said date. Be that as it may, proclamation was effected on July 20,2018.

On August 20,2018, HC Harjinder Singh appeared and signed the statement. However, petitioner Avtar Singh didn’t appear. Since,the mandatory period of 30 days stood expired and petitioner failed to appear in court, he was declared as Proclaimed Offender in terms of Section 82(1) Cr.P.C. by order dated August 20,2018 and his properties were ordered to be attached under Section (3) of the Cr.P.C. and consequent FIR under Section 174-A IPC was also ordered to be registered against him.

It was mainly argued from the petitioner’s side that the order declaring the petitioner as proclaimed offender was in dis-regard to the ratio of the case of Ashok Kumar vs. State of Haryana [2013(4) RCR (Criminal) 550] as the petitioner was required to be given mandatory notice of 30 days after the date of effecting proclamation. 

The Bench of Justice Sant Parkash observed that a perusal of the orders passed by the Trial Court, coupled with the proclamation notice July 9,2018 under Section 82 Cr.P.C., revealed that due to non-appearance of petitioner on January 11,2018, he was ordered to be summoned through non-bailable warrants but he didn’t put in appearance. 

Finding that petitioner could not be served through ordinary process, by order dated February 23,2018 he was ordered to be summoned through proclamation under Section 82(1) Cr.P.C., report of which could not be procured upto July 4,2018. Ultimately, by order of 4th July,petitioner was again ordered to be summoned through fresh proclamation.

The Bench also opined that Proclamation notice dated July 9,2018 stood effected on July 20,2018 as it was clear from order passed by the trial court that HC Harjinder Singh had appeared before the court and returned the proclamation of petitioner Avtar Singh. 

Thus, as per the Bench, it was clear that proclamation notice was affixed on July 20,2018 wherein petitioner was directed to appear on or before August 7,2018 which period was less than 30 days. The time period of 30 days was to be reckoned from the date of the execution and not from the date of issuance of proclamation i.e. July 9,2021.So, the Bench held that proclamation was not effected as per the provisions of Section 82 of Cr.P.C.

Therefore, referring to Ashok Kumar’s case (Supra) and keeping the above mentioned facets  into consideration, the High Court  allowed the petition.