2020 (10) TMI 1289 - HC - Indian Laws

Cheating - fraudulent representation of providing 2 BHK flat and dishonestly induced to pay the amount of ₹ 9,04,429/- - petitioners neither gave the flat nor returned the money - petitioners were declared proclaimed persons under Section 82 of the Cr.P.C. - petitioners were absconding or not - HELD THAT - The learned Chief Judicial Magistrate, Karnal did not record her satisfaction that in view of the material on record there was reasonable ground to believe that the petitioners had absconded or were concealing themselves so that warrant of arrest issued against them could not be executed. Consequently, the condition essential for issuance of proclamation against the petitioners was not satisfied. In the present case vide order dated 02.08.2019 proclamation was ordered to be published against the petitioners under Section 82 of the Cr.P.C. requiring the petitioners to appear before the Court on 04.09.2019. The proclamation was published by SI Dharampal on 04.09.2019 and the petitioners did not get statutory minimum period of thirty days for their appearance before the Court on 04.09.2019 - Vide order dated 04.09.2019 learned Chief Judicial Magistrate, Karnal adjourned the case to 05.10.2019 for awaiting the appearance of the petitioners on the ground that statutory period of thirty days had not elapsed. Learned Chief Judicial Magistrate, Karnal could not extend the time by simply adjourning the case for awaiting appearance of the petitioners and was mandatorily required to issue the proclamation again for publication thereof in accordance with the provisions of Section 82(2) of the Cr.P.C. It follows that the petitioners were wrongly declared proclaimed persons vide impugned order dated 05.10.2019 in breach of the prescribed procedure and impugned order dated 05.10.2019 suffers from material illegality and is liable to the set aside - Petition allowed.

Summary

Issues Involved:
1. Quashing of FIR No. 840 dated 09.12.2019 under Section 174-A of the IPC.
2. Legality of the order dated 05.10.2019 declaring the petitioners as proclaimed persons under Section 82 of the Cr.P.C.

Detailed Analysis:

1. Quashing of FIR No. 840 dated 09.12.2019 under Section 174-A of the IPC:
The petitioners sought the quashing of FIR No. 840 dated 09.12.2019 registered under Section 174-A of the IPC. This FIR was based on the impugned order dated 05.10.2019 by the Chief Judicial Magistrate, Karnal, which declared the petitioners as proclaimed persons. The petitioners argued that the declaration as proclaimed persons was done without proper service and knowledge, in breach of the prescribed procedure, and without giving them the mandated thirty days to appear before the Court.

2. Legality of the order dated 05.10.2019 declaring the petitioners as proclaimed persons under Section 82 of the Cr.P.C.:
The Court examined the legality of the order dated 05.10.2019, which declared the petitioners as proclaimed persons. The essential requirements of Section 82 of the Cr.P.C. were analyzed, which include:
- Issuance of an arrest warrant by the Court.
- A report indicating the person had absconded or was concealing themselves.
- The Court's satisfaction that the person was absconding or concealing themselves.
- Specification of a date and place for appearance, not less than 30 days from the publication date.
- Mandatory publication methods, including public reading and affixing copies at conspicuous places.

The Court found that the Chief Judicial Magistrate, Karnal, did not record satisfaction that the petitioners had absconded or were concealing themselves, which is a prerequisite for issuing a proclamation. Additionally, the proclamation was not published as mandated by Section 82(2) of the Cr.P.C., as it was not publicly read out in a conspicuous place in the town/village where the petitioners resided. The proclamation was ordered to be published on 02.08.2019 for appearance on 04.09.2019, but the statutory period of thirty days had not elapsed by the appearance date, violating the procedural requirements.

The Court concluded that the impugned order dated 05.10.2019 was materially illegal and liable to be quashed, along with all subsequent proceedings, including FIR No. 840 dated 09.12.2019.

Conclusion:
The petition was allowed, quashing the impugned order dated 05.10.2019 and all subsequent proceedings, including FIR No. 840 dated 09.12.2019. The petitioners were directed to surrender before the trial Court within fifteen days, subject to any anticipatory bail orders, and would be remanded to judicial custody in accordance with law, subject to regular bail orders.