IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8-12-2010 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.18861 of 2010 Anandan@Duglas Devanandha .. Petitioner vs. The State by Inspector of Police K-3 Police Station, Aminjikarai, Madras .. Respondent Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioner : Mr.R. Rajan For respondent : Mr.P. Kumaresan Public Prosecutor O R D E R The petition is filed seeking a direction to call for the records in Crl.M.P.No.3803 of 1994 against S.C.No.60/87 on the file of the learned IV Additional Sessions Court, Chennai and quash the same. 2. The petitioner and 9 others were charge sheeted for the offence punishable under Secs.147, 148, 307 and 302 IPC r/w Sec.25 of Indian Arms Act by the respondents. 3. The brief facts are as follows. The petitioner and others are citizens of Srilanka known as Srilankan Tamils and belong to Eelam People Revolutionary Liberation Front.(EPRLF). During the Srilankan conflict in the year 1986, they were in Tamil Nadu and were temporarily residing at door No.3, Ist street, Thiruvallurpuram, Chennai. On 1.11.1986 around 2.00 p.m, one Selvanathan, S/o Logeswaran, Ravi, S/o Chinnaiyan, Raghu S/o Ganesh, Selvam S/o Chidambaram, all are Srilankan Tamils, were proceeding from M.M. Colony towards their residence. They picked up quarrel with some local people. 4. One Nagarajan, Chandran and the deceased Thirunavukarasu questioned the act of the Srilankans and they were assaulted by them. On seeing this, the public gathered. 5. Selvanathan, ran to their residence and returned with AK-47. One Suresh and Ramanan also came there with automatic https://hcservices.ecourts.gov.in/hcservices/ rifles. They opened fire indiscriminately at the public. The deceased Thirunavukkarasu raised his arms and shouted at the Srilankans Tamils not to fire. However, the said Selvanathan, with his automatic rifle, aimed at the deceased Thirunavukkarasu and with an intention to cause his death, fired at him and the said Thirunavukkarasu succumbed to the riffle shot. 6. One Suresh fired at Paneer selvam and caused grievous injuries. Ramanan indiscriminately fired at two other witnesses. The other accused viz., the present petitioner, Duglas Devanandha, Sathish Kumar and Roopan and Prateep joined the unlawful assembly, armed with deadly weapons. 7. All the accused climbed upon the terrace of the neighbouring house and opened fire indiscriminately. 8. A complaint was given before the Inspector of Police, R- 5, Choolaimedu Police Station and a case was registered in Cr.No.1346 of 1986. The Inspector of Police investigated the matter and filed a charge sheet against 10 persons, who are all Srilankan Tamils, before the learned 17th Metropolitan Magistrate and the case was committed to the IV Additional Sessions Judge, Chennai and the case was taken on file in S.C.No.60 of 1987. All the accused were released on bail and for some time the accused persons appeared before the Sessions Court and thereafter they remained absent and non bailable warrants have been issued against all the accused. The case was adjourned from time to time stating NBW pending. 9. The Inspector of Police, Aminjakarai Police Station filed an application in M.P No.3803 of 1994 under Sec.82 of Cr.P.C to declare the accused as "absconding accused" under the provisions of the Code. The learned V Additional Judge, who was in charge of IV Additional Court passed an order on 30.6.1994 allowing the application and passed an order proclaiming the accused as "absconding accused" and directed the respondents to publish the proclamation in one issue of Tamil Daily Newspaper and one issue of English Daily Newspaper and also by affixure of proclamation. The court also required the absconding accused to appear before the Court between 10.00 a.m and 5.00 p.m on or before 28.9.1994. As per order, the proclamation should be effected on or before 15.7.1994. The respondent effected the publication and also affixed the same on the last known address. 10. Thus, the proclamation was effected and the accused did not appear before the learned Sessions Judge, as required in the proclamation. That being the position, the petitioner has now come forward before this Court to quash the proclamation on the following grounds: i) the paper publication effected was not in accordance with the order dated 30.6.1994. ii) the paper cuttings of one Tamil Daily and English Daily before the Court were https://hcservices.ecourts.gov.in/hcservices/ only news items and not the paper publication as envisaged under Sec.82 of the Code. iii) the petitioner was expatriated to Srilanka and therefore, there was no ordinary place of residence for the petitioner to effect the affixure of proclamation. iv) the petitioner is now a Cabinet Minister in Srilankan Government and he was not aware of the proclamation until recently, and he is willing to appear before the trial court and face the trial to prove his innocence. 11. Mr.R. Rajan, the learned counsel for the petitioner submitted that the proclamation was not in accordance with Sec.82 of the Code. The learned counsel pointed out that a publication in one issue of Tamil Daily and one issue of English Daily requiring the appearance of the alleged absconding accused to appear before the court on a specified time and date was not duly effected. The learned counsel pointed out that what was produced before the court by way of publication is only a news item with the caption that ten (10) persons have been proclaimed as offenders. According to the counsel, it is not a publication, but it is only a news item. The learned counsel also pointed out that the learned Sessions Judge is wrong in holding that they are absconding and concealing themselves, but failed to consider that they were repatriated to Srilanka. 12. The learned counsel relied on an unreported judgment in Crl.R.C.No.580 of 2007 dated 22.9.2010 where this court has set aside such proclamation as it was not in compliance with the requirements under Sec.82 of the Code. 13. The learned counsel also relied on a decision reported in 2010 Crl.L.J 409 (Mehar Singh & Anr vs State of Punjab), where the Punjab and Haryana High Court had set aside the order of proclamation as there was no evidence for the accused having concealed themselves or absconding. The learned counsel for the petitioner also relied on a decision reported in 2010 Crl.L.J 1309 (L. Vijayakumar and another vs State) , where this Court has held as follows: "6. On a careful examination of the order impugned, prima facie it appears that the trial court did not pass the orders in consonance with the procedure prescribed in the Code. It is unfortunate that the learned Magistrate has passed orders with prima facie error on the face of records and the aspect relating to 30 days time is totally absent; therefore, it is apparent that the procedure provided in https://hcservices.ecourts.gov.in/hcservices/ Section 82 of the Code has not been followed. In such circumstances, this Court has no other option but to set aside the order passed by the trial court. 14. On the contrary, Mr. P. Kumaresan, the State Public Prosecutor would submit that the petitioner was concealing and absconding himself and therefore, proclamation was effected under Sec.82 of the Code. The learned Public Prosecutor submitted that the warrants could not be executed as their whereabouts were not known. He further submitted that publication had been effected in accordance with law and affixure of notice as contemplated was also effected. The learned Public Prosecutor relied on a decision reported in AIR 1977 Madras 386 (K.T.M.S. Abdul Cader and others vs The Union of India), wherein, the Full Bench of this Court has held as follows: "22. The words 'absconding debtor' with reference to Bankruptcy Laws, according to Stroud's Judicial Dictionary of words and phrases, 3rd Edn., means one who departs for distant countries before the necessary proceedings can be taken to make him bankrupt or being outside the country continues to remain there with intent to defeat or delay his creditors. The primary meaning of the word 'abscond' is to hide and when a person is hiding from his place of residence he is said to abscond. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. In Wharton's Law Lexicon, 14th Edn., 'abscond' has been taken to mean to fly the country in order to escape arrest for crime. Therefore, persons who get scent of the action to be taken by the detaining authorities and leave the country in order to escape the arm of the law can be said to abscond. Similarly persons who have already left the country without the knowledge of any action to be taken against them under the Act, but who continue to remain outside the country with a view to avoid any detention order that may be passed under S.3 can also be take to be absconding. It cannot be disputed that a person committing an offence in a particular country would ordinarily be liable to be tried according to the law of that country. If he leaves the country with a view to avoid or escape the arm of the law, he can be said to abscond so far as that country and its laws are concerned. The Chambers's Twentieth Century Dictionary, the word 'abscond' has been defined as to hide or to quit the country in order to escape a legal process. Therefore, if a person, before the https://hcservices.ecourts.gov.in/hcservices/ legal process could be issued somehow or other comes to know of the issue of such a process or anticipates the issue of the process and quits the country he can be said to have absconded". 15. The learned Public Prosecutor also relied on a decision reported in 1998 (4) Crimes 26 (Rajeshwar and Others vs State of UP and Others), where the High Court of Allahabad held as follows: "5. Section 82 speaks of issuance of proclamation for a person said to be absconding and Section 83 speaks of issuance of proclamation for a person said to be absconding and Section 83 speaks of issuance of warrant of attachment of the property of such absconder. For Section 82, there must be a report before the Magistrate that the person, against whom a warrant was issued by him, had absconded or had been concealing himself so that such warrant could not be executed. The sine qua non for an action under Section 82 is, therefore prior issuance of warrant of arrest by the court and consequences thereon as indicated in this section. An attachment warrant could be issued only after issuance of proclamation. In the absence of any material on record to show that the court had, on any earlier occasion, issued any warrants of arrest against the applicants, the order directing issuance of proclamation cannot be sustained". 16. Heard and perused the materials available on record including the trial court records. 17. The alleged occurrence, involving ten Srilankan Tamils who belong to EPRLF faction, took place on 1.11.1986. It is common knowledge that various factions fighting for autonomy for Tamils in Srilanka were freely residing in Tamil Nadu. The petitioner and others who were charged for various offences including an offence punishable under Sec.302 IPC for causing a death of one Thirunavukkarasu were staying at Choolaimedu at Chennai and after the occurrence, they were arrested and remanded to judicial custody. The prime accused, who caused the fatal injury was one Selvanathan, has been arrayed as A1 in the charge sheet. The petitioner was arrayed as A3, who is said to have been a member of unlawful assembly with deadly weapons. From the records, it is seen that A3 was in judicial custody and was lastly produced on 9.12.1989. On that day, it was noted that NBW was pending against the other accused and therefore, the case was split up against A3 and charges under Sec.148, 302 r/w 149 IPC and 25(1)(h), 27 r/w 30 of Arms Act and Sec.45 of Explosive Substance Act were framed and https://hcservices.ecourts.gov.in/hcservices/ read over to the accused and the accused pleaded not guilty and the case was posted for trial on 1.2.1990 and the accused was remanded to custody. On 1.2.1990, it was recorded that the accused was present and Subpoena was issued to the witnesses for the trial dated 26.2.1990. On 26.2.1990 also, the accused was present and the matter was adjourned to 2.3.1990. On 2.3.1990 the accused was present and the matter was further adjourned to 9.4.1990. On 9.4.1990, the accused was not present, but a petition under Sec.317 Cr.P.C was filed and the same was allowed and the case was adjourned to 18.6.1990. On 18.6.1990, the notes paper reads that "N.B.W pending" and thereafter, the case was posted to various dates recording "NBW pending". From the records it is seen that the bail granted to the petitioner was cancelled by this court and on a memo filed by the prosecution the trail court had ordered issue of non bailable warrant. On 30.6.1994, the learned Public Prosecutor has filed Memo to issue proclamation and the impugned order was passed on the same day. On 29.8.1994, one witness was examined and the court has recorded that the accused is still absconding and there is no possibility of apprehending the accused and hence the case was transferred to Long Pending case Register. 18. Sec.82 Cr.P.C (herein after referred as code ) reads as follows: 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 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 specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows: (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 https://hcservices.ecourts.gov.in/hcservices/ 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 o 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. 4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400 402, 436, 449, 459 or 460 of the Indian Penal Code (XLV of 1860) and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. 5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub- section (1). 19. In AIR (29) 1942 Madras 289 (N.M.V. Vellayappa Chettiar vs Alagappa Chettiar), the condition precedent to issue of proclamation was discussed. It was a case where the accused had left India and the Court held as follows: "When it was clear that the accused had left India in March,it could not possibly be said that he absconded or that he is concealing himself so that the warrant cannot be executed, which is a condition precedent under S.87 (now sec.82),of Criminal P.C for the issue of a proclamation. It is also a condition precedent for the issue of attachment under S.88 (now sec.83)" 20. In A.I.R 1977 Madras 386 (K.T.M.S AbdulCader vs Union of India), the Full Bench of this Court has held as follows: "22. The words 'absconding https://hcservices.ecourts.gov.in/hcservices/ debtor' with reference to Bankruptcy Laws, according to Stroud's Judicial Dictionary of words and phrases, 3rd Edn., means one who departs for distant countries before the necessary proceedings can be taken to make him bankrupt or being outside the country continues to remain there with intent to defeat or delay his creditor. The primary meaning of the word' abscond' is to hide and when a person is hiding from his place of residence, he is said to abscond. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. In Wharton's Law Lexicon, 14th Edn, 'abscond' has been taken to mean to fly the country in order to escape arrest for crime. Therefore, persons who gets scant of the action to be taken by the detaining authorities and leave the country in order to escape the arm of the law can be said to abscond. Similarly persons who have already left the country without the knowledge of any action to be taken against them under the Act, but who continue to remain outside the country with a view to avoid any detention order that may be passed under S.3 can also be taken to be absconding. It cannot be disputed that a person committing an offence in a particular country would ordinarily be liable to be tried according to the law of that country. If he leaves the country with a view to avoid or escape the arm of the law, he can be said to abscond so far as that country and the laws are concerned. In Chamber's Twentieth Century Dictionary, the word 'abscond' has been defined as to hide or to quit the country in order to escape a legal process. Therefore, if a person, before the legal process could be issued somehow or other comes to know of the issue of such a process or anticipates the issue of the process and quits the country he can be said https://hcservices.ecourts.gov.in/hcservices/ to have absconded". 21. In 2010 Crl.L.J 409 (Mehar Singh & Anr vs State of Punjab), (cited supra) the High Court of Punjab and Harayana, "8. The petitioners, as per the averments in the petition, are residing in Canada much before the registration of FIR in question. As per Section 82 Cr.P.C, proclamation can be issued against a person if the Court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself and that the warrant cannot be executed". 22. It is well settled that issuance of warrant is a condition precedent for proclamation under Sec.82 of the code. It is also well settled the court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself so that such warrant cannot be executed. The proclamation has also to be effected in accordance with the provision. 23. Persons who have already left the country without the knowledge of any action to be taken against them under any Act, but who continue to remain outside the country with a view to avoid any order that may be passed can be taken to be absconding. If he leaves the country with a view to avoid or escape the arm of the law, he can be said to abscond so far as that country and the laws are concerned. 24. Whether a person remains within the country or leaves the country, to invoke the proceedings under Sec.82 of the code, the condition precedent is, pending of warrant and the subjective satisfaction of the court that the accused is concealing or absconding to avoid execution of warrant. Such proclamation shall be valid, if, it is in accordance with the provision. 25. The purpose of proclamation under Sec.82 of the code is to require the absconding person to appear before the court and such proclamation shall be a written proclamation published as provided in the section. Clause 2 of Sec.82 provides i) (a) the written proclamation shall be publicly read in some conspicuous place in which such person ordinarily resides. (b) it shall be affixed to some conspicuous part of the house in which such person ordinarily resides. https://hcservices.ecourts.gov.in/hcservices/ c) a copy shall be affixed to some conspicuous part of court house. ii) the court may also direct publication in a daily newspaper. 26. Sub clause 3 of Sec. 82 provides that a statement in writing by the Court to the effect that the proclamation was duly published shall be the conclusive evidence that the requirement of the section can be complied with. 27. Sub clause 4 of sec.82 provides that if the proclamation in respect of a person accused of an offence punishable under Sec.302 IPC or other offences mentioned therein, and such person fails to appear on the specified time, the court may pronounce him a "proclaimed offender" and make a declaration to that effect. Sub clause 4 of Sec.82 has been inserted by the Code of Criminal Procedure Amendment Act (Act 25 of 2005) w.e.f. 23.6.2006. The Govt. Of Tamil Nadu has also not notified the amendment. 28. Chapter VI of the Code deals with the processes To compel Appearance. The object of proclamation of Sec.82 is to require the appearance of the accused. On failure of appearance on the specified time and date the court can proceed with section 83 of the code to attach his property to compel his attendance. The court can also declare such person as proclaimed offender under sub clause 4 of section 82 as per amendment. There is no definition in the Acts for a proclaimed offender. The status of such proclaimed offender is also not explained. However, it is an official declaration of such person is an offender and is required by a criminal court to be tried for criminal offences. 29. The first part of sec.82 requires the accused, against whom a warrant is pending, which could not be executed as he is concealing or absconding, to appear on the specified time. Failing appearance, and, if the person is accused of any of the offences mentioned in sub clause 4, the court may pronounce him a proclaimed offender. In any event, the procedural consequences is that the court can either transfer the case to the long pending case register or proceed to examine the witnesses in his absence and wait for the accused to appear or to be produced to pronounce judgment. The court may also proceed under section 83 of the code to attach the properties of the accused, if any. The legal consequences after issue of proclamation under the first part is that the proclamation itself is as good as a warrant and he can be arrested and produced. The accused can also appear before the court and plead to recall warrant by showing sufficient cause for his non appearance. The second part is to pronounce him as a proclaimed offender. The legal consequence will be that any person competent under the provisions of the Code can arrest the person and produce him before the court. The remedy available to such proclaimed offender is to surrender before the Court and show https://hcservices.ecourts.gov.in/hcservices/ sufficient cause for non appearance and recall warrant and as well as the proclamation. However, it is the discretion of the court either to condone the absence or to detain him so that the proceedings could be concluded. Therefore, the procedural aspects to issue an order of proclamation are; i)pending of non-bailable warrant is sine qua non; ii)all efforts should have been taken to execute the warrant; iii)the un executed warrant shall be returned along with a report; iv)the court