9911796707
TMI Blog2020 (10) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. - CRM-M-25772-2020 (O&M) - - - Dated:- 1-10-2020 - Mr. Justice Arun Kumar Tyagi, J. For the petitioners : Mr. Parminder Singh, Advocate. ORDER ARUN KUMAR TYAGI, J (ORAL) (The case has been taken up for hearing through video conferencing.) CRM-23789-2020 For the reasons mentioned in the application, the same is allowed and copies of or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving thirty days time to the petitioners for their appearance before the Court. Therefore, the impugned order and all subsequent proceedings including the present FIR arising out of the same may be quashed. On the other hand, learned State Counsel has submitted that the petitioners absconded and were declared proclaimed persons vide order dated 05.10.2019 after expiry of the period of 30 days from publication of the proclamation on 04.09.2019. The impugned order does not suffer from any illegality and the petition may be dismissed. On consideration of the submissions made by learned Counsel for the petitioners and learned State Counsel and on perusal of the relevant record, I am of the considered view that the impugned order dated 05.10.2019 suffers from material illegality and is liable to be quashed with all subsequent proceedings arising out of the same. Section 82 of the Cr.P.C., which provides for publication of proclamation against person absconding, reads as under:- 82. Proclamation for person absconding.- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. 2561). (ii) There must be a report before the Court that the person against whom warrant was issued had absconded or had been concealing himself so that the warrant of arrest could not be executed against him. However, the Court is not bound to take evidence in this regard before issuing a Proclamation under Section 82 (1) of the Cr.P.C.. (See Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561). (iii) The Court cannot issue the Proclamation as a matter of course because the Police is asking for it. The Court must be prima facie satisfied that the person has absconded or is concealing so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence. (See Bishundayal Mahton and others Vs. Emperor : AIR 1943 Patna 366 and Devender Singh Negi Vs. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783). (iv) The requisite date and place for appearance must be specified in the proclamation requiring such person to appear on such date at the specified place. Such date must not be less than 30 clear days from the date of issuance and publication of the proclamation. (See Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826 and Shokat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in writing by the Court is declared to be conclusive evidence that the requirements of Section 82 have been complied with and that the proclamation was published on such day. (See Birad Dan Vs. State : 1958 CriLJ 965). (xi) The conditions specified in Section 82(2) of the Cr.P.C. for the publication of a Proclamation against an absconder are mandatory. Any non-compliance therewith cannot be cured as an irregularity and renders the Proclamation and proceedings subsequent thereto a nullity. (See Devendra Singh Negi alias Debu Vs. State of U.P. and another : 1994 CriLJ 1783 and Pal Singh Vs. The State : 1955 CriLJ 318). In the present case learned Chief Judicial Magistrate, Karnal ordered issuance of proclamation against the petitioners on application filed by the concerned SHO/IO vide order dated 02.08.2019 which reads as under:- Warrant of arrest of accused Inderjeet and Divay received back unexecuted. An application for issuing the proclamation U/s 82/83 Cr.P.C. against the aforesaid accused has been filed. Heard. Now, proclamation be issued against accused under Section 82/83 Cr.P.C. for 04.09.2019. Executing constable is directed to appear in person for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed procedure and impugned order dated 05.10.2019 suffers from material illegality and is liable to the set aside along with all consequential proceedings arising therefrom including FIR No.840 dated 09.12.2019 registered under Section 174-A of the IPC in Police Station Civil Lines Karnal, District Karnal on the basis thereof. In view of the above discussion, the petition is allowed and impugned order dated 05.10.2019 passed by learned Chief Judicial Magistrate, Karnal and all subsequent proceedings arising therefrom including FIR No.840 dated 09.12.2019 registered under Section 174- A of the IPC in Police Station Civil Lines Karnal, District Karnal are quashed. However, subject to order granting anticipatory bail, if any, passed on petition, if any, filed by the petitioners under Section 438 of the Cr.P.C., the petitioners are directed to surrender before the trial Court within fifteen days from receipt of a copy of this order and on such surrender the petitioners shall be liable to be remanded to judicial custody in case FIR No.154 dated 21.02.2019 registered under Sections 120-B, 406 and 420 of the IPC in Police Station Karnal Civil Lines, District Karnal in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
