2015 (5) TMI 1228 - HC - Indian Laws

Proclamation for person absconding - Proclaimed offender or not - Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - HELD THAT - Perusal of Section 82 Cr.P.C. makes it clear that in case a person is intentionally avoiding the warrants, Court is empowered to publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation and also the manner in which such proclamation shall be published. In order to ensure that an accused should have a fair opportunity to appear, 30 days clear notice is necessary and the proclamation should be published in the manner provided by law. In the instant case, proclamation of the petitioner was issued on 20.08.2014 for 23.08.2014 and vide impugned order dated 25.09.2014 petitioner was declared proclaimed offender. It is apparent on the face of record that clear notice of 30 days as mandated under Section 82 Cr.P.C. has not been given to the petitioner and the procedure for publication of proclamation has also not been followed. Besides that, there is nothing on record to show that provisions of Sub-Section 2(i) of Section 82 Cr.P.C. have been complied with - petitioner has been wrongly declared proclaimed offender vide impugned order without following the procedure of law. Petition allowed.

Summary

Issues:
Petition under Section 482 of the Code of Criminal Procedure to quash the order declaring the petitioner as a proclaimed offender without following the procedure under Section 82.

Analysis:
The judgment involves the consideration of whether the petitioner was rightly declared a proclaimed offender without following the procedure as laid down under Section 82 of the Code of Criminal Procedure. The petitioner had been declared a proclaimed offender in a case arising from an FIR registered under various sections of the IPC and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The petitioner's counsel argued that the proclamation was issued and the petitioner was declared a proclaimed offender without adhering to the requirements of Section 82 of the Cr.P.C. On the other hand, the State's counsel contended that the impugned order was just and fair as the petitioner was intentionally avoiding service.

The Court examined the contentions raised by both parties and delved into the provisions of Section 82 of the Cr.P.C. which govern the proclamation for a person absconding. The Court also referred to a previous judgment, Jagdev Khan v. Emperor, to draw parallels between the old Cr.P.C. and the current provisions. It was emphasized that when a person is intentionally evading warrants, the Court is authorized to issue a proclamation requiring the individual to appear after a clear notice of at least thirty days. The proclamation must be published in a specific manner, ensuring the accused has a fair opportunity to appear. In this case, it was found that the petitioner was declared a proclaimed offender without providing the mandatory 30-day notice and without following the prescribed procedure for publication of the proclamation. The Court highlighted the necessity to comply with the provisions of Section 82(2)(i) of the Cr.P.C., which require the public reading and affixing of the proclamation in specific locations. Consequently, the Court concluded that the petitioner was wrongly declared a proclaimed offender and quashed the impugned order dated 25.09.2014 passed by the Sub Divisional Judicial Magistrate.

In conclusion, the judgment meticulously analyzed the procedural requirements under Section 82 of the Cr.P.C. and emphasized the importance of providing a fair opportunity to the accused before declaring them as proclaimed offenders. The Court's decision to quash the order declaring the petitioner as a proclaimed offender underscores the significance of adhering to legal procedures and ensuring due process in such matters.