2022 (2) TMI 195 - HC - Indian Laws

Dishonor of Cheque - notice of proclamation of person absconding - mens rea for the commission of an offence under Section 174-A of the IPC - breach of mandate of sub-Section (2) of Section 82 of the Cr.P.C. or not - HELD THAT - All the provisions carried in sub-Section (i) of sub-Section (2) of Section 82 of the Cr.P.C., are to be cumulatively complied, and, or that all the provisions carried in sub-Section (i) of sub-Section (2) of Section 82 of the Cr.P.C., require(s) theirs being meted completest conjunctive compliance by the serving / executing officer, and or that the provisions are to be not meted compliance in the alternate - in the report, as became relied, upon by the executive officer, and, as became depended upon by the learned Magistrate concerned, to make the impugned order, disclosure are to occur, that each of the ingredients carried in all the afore provisions, borne in sub-Section (i) of sub-Section (2) of Section 82 of the Cr.P.C., became meted absolute, and, completest compliance, without any of them remaining uncomplied with. Since the mandate of sub-Clause (a) of sub-sub- Section (i) of sub-Section (2) of the Section 82 of the Cr.P.C., was also to be complied alongwith compliance being meted by the executing officer with Clause (b), and, Clause (c) of sub-sub-Section (i) of sub-Section (2) of Section 82, of the Cr.P.C., whereas, a reading of the apposite report, not disclosing that he had also meted compliance to Clause (a) of sub-sub- Section (i) of sub-Section (2) of Section 82, of the Cr.P.C, thereupon, his report is in departure of the statutory injunction, as therethrough(s) rather became cast upon him. Consequently, the knowledge of the proclamation notice, was not hence completely acquired by the petitioner, and, also the endeavour of the executing officer to serve the proclamation notice, upon, the accused, is completely deficit on score. It was rather imperative, for the learned trial Magistrate concerned, to thereafter recourse the mandate of sub-Section (ii) of sub-Section (2) of Section 82 of Cr.P.C., inasmuch as, after his receiving the report of the executing officer, his proceeding, to make an order for publication of the proclamation notice, in the daily newspaper, hence circulating in the area in which the accused ordinarily reside(s). The learned Magistrate, however, did not after the afore deficit report of the executing officer, being made, recourse the mandate of sub-Section (ii) of sub-Section (2) of Section 82 of Cr.P.C. Consequently, the deficit report of the executive officer could not validly bedrock any further conclusion, that the petitioners ever nursed any penally inculpable, mens rea, for an offence under Section 174-A of the IPC. The impugned order of 08.07.2021, declaring the petitioner, as a proclaimed offender, registered at Police Station Ambala City, District Ambala, constituting therein an offence under Section 174-A of the IPC, as well as subsequent proceedings arising therefrom, are quashed - petition allowed.

Summary

Issues:
Quashing of order declaring petitioner as proclaimed offender and annulment of FIR registration.

Analysis:
The petitioner sought the quashing of the order declaring them as a proclaimed offender and the annulment of the FIR registered against them under Section 138 of the Negotiable Instruments Act. The complaint against the petitioner was dismissed as withdrawn by the Court of JMIC Ambala. The petitioner argued that there was no necessity for their appearance before the court due to the dismissal of the complaint. However, the court had issued proclamations under Section 82 of the Cr.P.C. as the accused was reported to be out of station. The court eventually declared the petitioner as a proclaimed offender and directed the registration of an FIR against them under Section 174-A of the Cr.P.C.

The petitioner challenged the order of 08.07.2021 through Section 482 of the Cr.P.C., alleging a breach of sub-Section (2) of Section 82 of the Cr.P.C. The court examined the provisions of Section 82, emphasizing the mandatory compliance required for the proclamation process. It was noted that the serving officer's report did not fully comply with the requirements of sub-Section (2), as the proclamation was not publicly read in the town or village where the accused resided. This lack of compliance meant that the petitioner did not have complete knowledge of the proclamation notice, rendering the execution deficient.

The court further highlighted that the order declaring the petitioner as a proclaimed offender was infirm due to the incomplete compliance with the statutory requirements of Section 82. The mens rea for the offence under Section 174-A of the IPC arises only when there is complete compliance with all provisions of Section 82. Since there was a segment of non-compliance, the court found the order to be flawed. The court emphasized the importance of following the statutory provisions and noted that the executing officer's deficient report could not establish the petitioner's culpability.

Ultimately, the court allowed the petition, quashing the order declaring the petitioner as a proclaimed offender and annulling the FIR registration and subsequent proceedings. The judgment focused on the necessity of strict compliance with procedural requirements, especially in cases involving the declaration of proclaimed offenders and FIR registrations under the Cr.P.C.