CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 12, 2011 Rajiv .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ajit Sihag, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner has been declared as a proclaimed offender in FIR No.159, dated 6.4.2001, registered in Police Station Civil Lines, Hisar, under Sections 420, 467, 468, 471 IPC. The petitioner seeks quashing of order dated 23.3.2002, declaring him PO and also for quashing the order dated 11.12.2006, whereby the Session Court has dismissed the revision against the said order. As per the petitioner, he is residing at Pune since 1999 and the present FIR was registered against him on CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 2 }: 6.4.2001. He, thus, never came to know about the registration of the FIR. Even as per the police report, the petitioner was living outside and has not come to his home. It is, thus, pleaded that the petitioner was not served and was declared as PO on 23.3.2002 by Additional Chief Judicial Magistrate. The petitioner had challenged this order by filing a revision petition, which was dismissed on 11.12.2006 and hence, he has impugned both the orders in the present petition. The sole ground raised by the petitioner is that he has been wrongly declared as proclaimed offender in violation of the provisions of Section 82(4) Cr.P.C. In support, the petitioner has relied upon Satinder Singh Vs. The State of U.T., Chandigarh and another, 2011(2) RCR (Criminal) 89. I have considered the submissions made by counsel for the petitioner. The petitioner has not challenged the impugned order declaring him proclaimed offender before the Revisional Court on the grounds he has now advanced before this court to challenge the said order. Before the Revisional Court, the petitioner had relied upon number of judgments in support of his plea that he came to know of the order passed in the year 2002 only in September 2005 through a person, who visited him in Pune. As per the record, notice issued to the petitioner was affixed on House No.179-A Lajpat Nagar Hisar, which was in occupation of his father, who is an employee of Haryana Roadways. The petitioner did not disclose the name of the CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 3 }: person, who visited him at Pune to apprise him about the impugned order and also did not produce the original ration card and other documents relied upon by him despite opportunity. The authorities relied upon by and on behalf of the petitioner were considered by the Revisional Court and it came to find, as a matter of fact, that notice had been pasted at the address indicated by the petitioner in various letters submitted to the registering authority. The Revisional Court also found that notice was pasted at a house which was occupied by his family. The police official, who had visited the said house, had met his father and, thus, the Revisional Court justifiably observed that this cannot be accepted that petitioner's father had not informed about the proclamation to his son. It is accordingly noticed that the petitioner had approached the Court after three years of the proclamation by submitting a vague explanation as to how he came to learn about the order . The revision petition was accordingly dismissed. The Revisional Court has passed this order on 11.12.2006. Apparently, the petitioner had remained silent against this order for over a period of five years and has filed this petition under Section 482 Cr.P.C. only on 6.9.2011. Through this petition, the petitioner has challenged the order declaring him proclaimed offender, which was passed on 23.3.2002, against which the revision was dismissed on 11.12.2006. There is no explanation whatsoever furnished in the petition to explain this inordinate delay in filing the present petition once his revision was dismissed in December, 2006. The obvious reason in this regard is the judgment delivered by this Court in the case of Satinder Singh (supra) on 11.8.2010. The petitioner has CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 4 }: raised this present challenge by taking support from this judgment after having remained silent for over period of five years. This ground alone is enough to decline the challenge made by the petitioner as he apparently has not shown any respect by appearing before the Court despite his revision having been rejected five years ago. Still, I have considered the submissions made on behalf of the petitioner on the basis of observations made in Satinder Singh's case (supra). The Court in Satinder Singh's case (supra) has just made a passing observation to the effect that order declaring the petitioner therein as proclaimed offender was passed in contravention of Sub-section (4) of Section 82 Cr.P.C. and, thus, is liable to be quashed. The provisions of Section 82(4) Cr.P.C. cannot be read in isolation and by ignoring the effect of other corresponding amendment incorporated in the Indian Penal Code creating a new offence in the form of Section 174-A. Further, the provisions of this sub-section can also not be read in isolation by ignoring the other sub-sections of the Section. Section 82 Cr.P.C. deals with making proclamation for a person who is absconding. Section 82(1) provides that 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 specific place and the specified time not less than thirty days from the date of publishing such proclamation. It is, thus, clear that this proclamation under Section 82(1) Cr.P.C. can be issued in respect of any person against whom the warrant is CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 5 }: issued by the court and it has got no relationship as far as commission of any particular offence is concerned. Such proclamation can be issued in respect of all offences provided under the Indian Penal Code which would include offences mentioned in Sub-section (4) of the Section. The requirement is that it is to be issued in respect of a person against whom warrant is issued by the court and the court finds from the evidence or otherwise that such person is absconding or concealing. Thus, the power to issue such proclamation is not restricted in case of any particular offence. Section 82(2) Cr.P.C. then makes a provision in regard to the manner in which the proclamation is to be published. Thereafter sub- section (3) of Section 82 Cr.P.C. provides that a statement in writing by the court issuing the proclamation that it was duly published etc. shall be a conclusive evidence that the requirement under the section has been complied with. Then comes sub-section (4) of Section 82 Cr.P.C. introduced in the year 2005 and it provides that where a proclamation published under sub-section (1) is in respect of a person accused of offences punishable under the sections are as mentioned in the sub-section and such person fails to appear at specified place and the time required by proclamation, the court may, after making such inquiry as it deems fit, pronounce him a proclaimed offender and make a declaration to that effect. Though this sub-section has made a mention to some of the offences, but this sub-section does not say that such a proclamation can be made only in respect of these offences alone. There is no distinction so far as publishing of a written proclamation requiring absconding person to appear at a specific place is concerned. What would then be the CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 6 }: purpose and effect of publishing of such proclamation requiring a person to appear if subsequently no follow up action is to be taken or such action can not be taken. If this provision is interpreted in this manner, it would mean that all persons accused for offences other than those mentioned in Section 82(4) can ignore such proclamation issued by the court as they can not then be further declared proclaimed offender. They can, thus, flout the publication issued by the courts with impugnity, which would effect the criminal trial system. The Courts would be unable to procure presence of accused persons. The proclamation for offences mentioned in sub-section (4) of Section 82 Cr.P.C.is to be published in terms of Section 82(1). If a person fails to appear at a specified place by the time required by the proclamation, then the necessary consequence has to follow. As per Section 82(4) Cr.P.C., in case of the offences mentioned in the sub-section, a pronouncement declaring the person as a proclaimed offender can be made and declaration to this effect is to be done. This can be done after making such inquiry as the court thinks fit. To read this provision to say something negative that such a proclamation cannot be made in respect of other offences, may amount to doing violation to the provisions of this sub-section. This provision, in my considered opinion, is to provide a positive that such a person who does not appear after proclamation and is accused of such offences, then he can be pronounced as a proclaimed offender and declaration to this effect can be made. To read this provision in a manner that such declaration cannot be made for other offences would amount to adding words into this sub-section that such a CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 7 }: declaration can alone or only be made in respect of the offences mentioned in the sub-section. Sub-section does not provide so. The intention of the Legislature is to be inferred from the plain language and the sub-section is to be read without adding any word into the sub-section. Plain reading of sub-section can be that person can be pronounced as a proclaimed offender for these offences mentioned in the sub-section after making such inquiry as the court may think fit and that seems to be the only distinctive feature in making such a declaration in respect of such offences which may not be the requirement in other offences. The reading of Section 82 Cr.P.C. would only show that issue of warrant of arrest is a condition precedent to a proclamation being issued under the Section. The intention of the Legislature in enacting this provision of proclamation is only to pressurise the absconding accused to appear and submit himself to the process of law so that the trial in respect of the crime in which he is said to be involved is conducted. The investigating agency or the concerned police officer after receiving non-bailable warrant of arrest is to take expeditious steps to execute the warrant and if for some reason or other, the warrant is not executed within a stipulated time, then proper information is to be given to the competent court. The Court thereafter may issue fresh non-bailable warrant of arrest. If in spite of best efforts, the serving officer is not able to execute warrant of arrest, then he is to file an application for taking action under Sections 82 and 83 of the Code against the absconding accused. In this background to say that further pronouncement can only be made in respect of selected offences as mentioned in sub-section (4) would CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 8 }: seriously erode the powers of the Court to ensure presence of the person before the Court and to conduct a proper and a speedy trial. Since ages the process is being followed and there is no purpose which can be achieved by restricting this power to selected offences. It may require a notice here that a new offence has been added under the Indian Penal Code in the form of Section 174-A as per which, the absence of absconded person to appear before the court is now made punishable criminal misconduct. A person who fails to appear at specified place after proclamation published under Section 82(1) Cr.P.C. is also liable to be punished with imprisonment upto 3 years as per Section 174-A. When the declaration is made under Section 82(4), then punishment of imprisonment upto 7 years is provided. Thus, it is not that offence under this Section is created only in those cases where there is a proclamation made declaring the absconding accused to be a proclaimed offender. Mere publication and failure on the part of an absconding accused is enough to attract the rigors of Section 174-A IPC. This would be an added reason to construe that it is only the gravity which would increase if the offences are as mentioned in Section 82(4) Cr.P.C. It is the proclamation which is material and subsequent declaration after inquiry only leads to more stringent penalty. It cannot be said that Section 82(4) would restrict its operation only in case of those offences which are mentioned in the sub-section. Such declaration can be for other offences also but gravity would be different. The net effect due to absence of the person declared as a proclaimed offender would remain the same as even if there is no such declaration and there is only a publication, then also the provisions of CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 9 }: Section 174-A IPC would be attracted for awarding penalty. This section has been inserted to provide for punishment which is more stringent when accused does not appear in serious cases and the punishment is lesser when offences are not that grave. This issue can further be examined in the light of age old process prevailing under the Punjab Police Rules. It states that a vital factor in both the detention and prevention of crime is the execution of law in respect of absconding and harboring. The provisions of law are adequate to prevent both these offences but their proper and comprehensive administration demands the constant attention of the Court and supervisory police officers. The instructions as to the taking out and execution of the warrants when persons, whose arrest is required, are not immediately found, are contained in the Punjab Police Rules. The Rules have noticed that under Section 82 of Code of Criminal Procedure, any court may at any time issue a proclamation against a person for whose arrest the court has issued a warrant. All that is necessary is that the court should be satisfied, not necessarily by evidence, that the said person “has absconded or is concealing himself so that such warrant cannot be executed”. The court may further at any time after proclamation “order the attachment of any property. After having obtained a warrant of arrest, the police has to make reasonable efforts to execute such warrant and where it fails, then the court has to satisfy itself that the warrant cannot be executed. At this stage, the court is not to see the guilt of the wanted man in the offence under investigation. When a proclamation order has been obtained, then the police is bound to publish the order as required under Section 82(2) Cr.P.C. and CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 10 }: thereafter the requirement of sub-section (3) are to be complied with. Once this happens, then the person wanted becomes a “proclaimed offender” and as per the rules given under the Punjab Police Rules, entry of such person's made in the surveillance register, list of proclaimed offender and notices to village headmen and watchmen of all places where he has connections or which he is likely to visit is to be complied with. Section 82(4), thus, has not introduced any major change in the procedure which was followed here to before by the police under the Police Rules. The police is also required to maintain a register for proclaimed offenders in each district and every Superintendent of Police is to carefully revise the list of proclaimed offenders periodically and to omit therefrom, after consultation with the District Magistrate, the names of the persons accused of trivial offences or concerned in cases where from after lapse of time, no sufficient evidence is on record or is procurable. This is old age process being followed. There being no difference so far as after effect of absence of the absconding accused upon issuance of warrant is concerned and the consequence being same in both the cases, as are given in Section 174-A IPC, it would not be appropriate to read the provisions of Section 82(4) Cr.P.C.to say that such proclamation declaring the absconding accused as a proclaimed offender can only be issued in respect of limited offences as given in the said sub-section. There may be some additional requirement which has been so provided by sub-section (4), but this sub-section can not be read to say that person can be declared proclaimed offender only for these offences. One noticeable difference is the punishment that is prescribed in CRIMINAL MISC. NO.-M 30146 OF 2011 (O&M) :{ 11 }: these two different situations. Even in Satinder Singh's case (supra), the petitioner was only directed to surrender before the Magistrate, who was then required to proceed in accordance with law. Even in this case offence under Section 174-A was complete. It may have to be seen if this could be so easily ignored in making the person to surrender before the Court. In my opinion, no binding precedent would emerge from the decision of Satinder Singh's case (supra). Even otherwise, the impugned order does not call for any interference on merits as well. The petitioner has shown no respect to law and has failed to surrender himself before the court despite being a proclaimed offender since the year 2002. His revision was dismissed in December, 2006, but still he has not appeared before the Court. This case would clearly reflect the danger of accused avoiding the process of law if the sub-section 82(4) Cr.P.C. is read in this restricted manner. Ultimately, the criminal justice system may become a casualty. The present petition is accordingly dismissed. October 12, 2011 ( RANJIT SINGH ) ramesh JUDGE