On December 12, 2022, the Punjab and Haryana High Court, while attempting to prevent the violation of the provisions of section 82 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr. P.C")., advised the learned Courts of Judicial Magistrates to give two separate dates in the proclamation, the first within 15-20 days to endure the publication of proclamation and the second after 30 days to ensure an appearance of the accused.
Brief Facts:
The petition was filed by the Petitioner under Section 482 Cr.P.C. for quashing the order dated 09.02.2018 passed by the learned Sub Divisional Judicial Magistrate (SDJM), Nabha, whereby the Petitioner was ordered to be declared an absconder and all the subsequent proceedings were initiated under Section 174-A IPC. The proclamation was issued on 22.05.2017 and the Petitioner was required to appear before the SDJM, Nabha on 13.06.2017. The proclamation was marked to the concerned Police Post on 02.06.2017, whereby a direction was given to the Petitioner to appear before the Court on 13.06.2017. The compliance was made on 12.06.2017 by the serving constable. Hence, aggrieved by the order dated passed by the SDJM, the Petitioner filed the present petition.
Contentions of the Petitioner:
It was submitted that a copy of the notice was pasted on the wall of the house of the Accused and the other copy of the notice was pasted on a conspicuous place on the turning of the street of the mohalla, whereas no such order was pasted on the wall of the house or conspicuous place. The counsel further submitted that the Petitioner was required to appear before the SDJM, Nabha on 13.06.2017. The proclamation was marked to the concerned Police Post on 02.06.2017, whereby direction was given to the Petitioner to appear before the Court on 13.06.2017. Moreover, the Petitioner applied for anticipatory bail and he was granted, Interim Bail. He was also appearing regularly before the Court.
Contentions of the Respondent:
The counsel representing the state opposed the prayer made by the learned counsel for the Petitioner i.e., for the quashing of the order dated 09.02.2018 declaring the Petitioner as an absconder, given the provisions laid down under section 82 Cr.P.C.
Observations of the Court:
The Hon’ble Court observed that as per Section 82(1) Cr.P.C., a Court was required to publish a written proclamation requiring the person concerned to appear at a specific place and at a specified time, not less than thirty days from the date of publishing such proclamation.
The Bench further observed that in the present case, the order of the proclamation was dated 22.05.2017 and the proclamation was marked to the SHO concerned on 02.06.2017, requiring the Petitioner to appear before the Court on 13.06.2017. The publication was effected on 12.06.2017. Neither proclamation was publicly read in some conspicuous place of Amargarh nor 30 days period was given to the Petitioner to appear in the Court. Hence, the order dated 09.02.2018, whereby the Petitioner was declared absconder, was against the provisions of Section 82 Cr.P.C.
The Hon’ble Court directed that the learned Courts of Judicial Magistrates were required to take the provisions of Section 82 Cr.P.C. in its true letter and spirit. Moreover, it was advised that “whenever a proclamation is issued, then two dates must be given in the order i.e., the first date should be within 15-20 days giving a direction to the serving official to complete the process of proclamation and to return the proclamation well in time and to appear in the Court for making a statement about the publication of proclamation. The second date should be fixed after 30 days thereof directing the accused to appear at a specific place and on the specified date and time so that there is no violation of the provisions of Section 82 Cr. P.C”.
The decision of the Court:
The order was declared as violative of the provisions of section 82 Cr.P.C. Hence, the order dated 09.02.2018, declaring the Petitioner an absconder was set-aside.
Case Title: Jagjit Singh @ Jaggi Vs. State of Punjab
Coram: Hon’ble Mr. Justice Gurbir Singh
Case No.- CRM-M-8721-2019
Advocate for Petitioner: Mr. Ravi Kamal Gupta
Advocate for Respondent: Mr. G. S. Shergill
Read Order ;
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