THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.1481 of 2008 ORDER: The petitioners approach this Court with a prayer to set aside the cognizance taken by the learned Magistrate, whereby the learned Magistrate invoked the provisions of Section 174(A) of Cr.P.C. and issued summons to the accused. The brief facts of the case are as follows: The petitioners are arrayed as accused in C.C.No.183 of 2003 on the file of the IV Additional Chief Metropolitan Magistrate, Hyderabad for the offences under Sections 408, 420 and 423 IPC. Challenging the said complaint, the petitioners approached this Court by filing Criminal Petition No.4000 of 2006 to quash the same. Even prior to the petitioners approaching this Court, the learned Magistrate issued the order of proclamation on 07.04.2006 and the same was published in the paper on 17.08.2006. In the said publication, the petitioners were directed to appear on 22.08.2006 to face the charges before the trial Court. On 05.09.2006, on an application filed by the petitioners herein, this Court in Crl.M.P.No.2874 of 2006 in Crl.P.No.4000 of 2006 granted stay of further proceedings before the trial Court. On 28.11.2006, the Criminal Petition No.4000 of 2006 was allowed and the case against the present petitioners was quashed by this Court. The de facto complainant filed an application invoking the provision under Section 482 Cr.P.C. and prayed this Court to direct the learned Magistrate to take cognizance for the offence under Section 174(A), since the petitioners failed to appear before the Court concerned, on the basis of the proclamation ordered by the Magistrate on 07.04.2006. In Crl.P.No.4916 of 2007, this Court directed the Magistrate to take cognizance against petitioners/A3 and A4 in C.C.No.592 of 2007 even though the proceedings in C.C.No.183 of 2003 are quashed against them. The main contention raised in that petition is that simply because the case is quashed by the High Court, it cannot be a ground to acquit the petitioners and prayed the Court to take cognizance as the petitioners/accused have committed an offence by disobeying the order passed by the learned Magistrate. On the basis of the said order, the learned Magistrate has taken cognizance against the petitioners and the same is now under challenge before this Court. The learned counsel for the petitioners submitted that he is not challenging the order passed by this Court whereby the learned Magistrate has taken cognizance, but whereas, the petitioners’ counsel submitted that whether any purpose will be served on the basis of the cognizance taken by the learned Magistrate when the main case is quashed by this Court. Learned counsel for the respondent submitted that the present petition amounts to review on the order passed by this Court. This Court perused the entire records and heard the arguments. The order passed by this Court on 17.12.2007 is only to the extent that because the case in C.C.No.183 of 2003 is quashed, it cannot be a ground to reject taking cognizance. Now, the present petition is filed not only challenging taking cognizance but also on the said ground of invocation of provision 82 to declare proclamation. Section 82 of Cr.P.C. runs as follows: 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 absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specifed time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as followsZ: (i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.” This court is of the definite view that the said provision can be invoked extraordinary circumstances and sparingly because a person is abscondin himself from appearing before the Court, it is not informing the right to th court to invoke the said provisions and further on entire perusal of the reco placed before this Court, there is no whisper when the NBW was issue why it should not be executed and what are all the steps taken by th respondent police to execute the said warrant issued by the Court an further it is evident from the record that the proclamation is ordered o 07.04.2006, the petitioner approached this Court on 17.07.2006 to quash th main case. When the petitioners, who are arrayed as accused approache the Court for certain reliefs, they cannot be called as absconding perso and there is no need for any such proclamation for appearance of th accused concerned. The word ‘absconding’ should not be considered in narrow manner. The word ‘absconding’ has different meaning. The sa word speaks volumes regarding the fact that a person is intentiona avoiding and wants to free from the hands of justice. In the present cas there is nothing on record to show the petitioners intent to avoid th proceedings or to flee from the hands of justice. Hence, the very basic f invoking the provision under Section 82 of Cr.P.C. itself is bad in law, as f as the present facts and circumstances are concerned. Since th subsequent orders passed, on the basis of the said proclamation, is liable be set aside, the cognizance taken by the Magistrate is also liable to be s aside. The orders of the Court should be based on the real intention of th Legislature, which incorporated the said provisions in the Crimin Procedure Code. Hence, the cognizance taken by the learned Magistrate liable to be quashed and, accordingly, the same is hereby quashed. With the above observation, the Criminal Petition is allowed. Miscellaneous petitions filed along with the Criminal Petition, if any, shall stand closed. __________________ JUSTICE RAJA ELANGO 10th March 2011 Rns