Crl. Misc. No. M-26996 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-26996 of 2009 DATE OF DECISION: 30.3.2010 Anil Aggarwal ..........Petitioner Versus State of Haryana & Anr. ..........Respondents BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. R.S. Rai, Senior Advocate with Mr. Gaurav Kathuria, Advocate for the petitioner. Mr. S.S. Mor, Sr. DAG, Haryana. Mr. R.S. Cheema, Senior Advocate with Mr. Rajiv Trikha, Advocate for respondent No.2. **** DAYA CHAUDHARY, J. The petitioner has filed the present petition for quashing of order dated 9.9.2009 (Annexure P-5) passed by Additional Sessions Judge, Faridabad, whereby, revision petition filed by respondent No.2 against order dated 12.8.2009 passed by Judicial Magistrate Ist Class, Faridabad declaring him proclaimed offender was set aside. Mr. R.S. Rai, learned senior counsel for the petitioner submitted that the Additional Sessions Judge, Faridabad has totally misinterpreted Section 82 (4) of the Cr.P.C. and set aside the order passed by Judicial Magistrate Ist Class, whereby, respondent No.2 was declared proclaimed offender. It has further been submitted by learned Crl. Misc. No. M-26996 of 2009 (2) senior counsel for the petitioner that revision petition was filed on distorted version and totally concealment of facts by respondent No.2 on 27.4.2009, which was allowed on 9.9.2009 without application of the judicious mind and in a very hurried manner, wherein, a specific finding has been given that no person can be declared as proclaimed offender except as mentioned under Section mentioned in 82 (4) of Cr.P.C. Learned senior counsel for respondent No.2 submits that Section 82 Cr.P.C. was amended by adding sub Sections (4) and (5) which were inserted vide an amendment Act, 2005 (25 of 2005), Section 12 enforced w.e.f. 23.6.2006 vide Notification No. S.O. 923 (E) dated 21.6.2006. The plain reading of sub Section 4 added through the above stated amendment makes it doubtlessly clear that an order declaring a person proclaimed offender cannot be passed except in offences which have been specifically mentioned in Sub Section 4 of Section 82. The Legislative intention is loud and clear. There is no scope to add or subtract any words from the plain and clear language of Section 82 (4) of Cr.P.C.. As per sub-Section (4) in Section 82, only such accused can be declared proclaimed offenders after due compliance of Sections 82 (1), (2) and (3), who are accused of offences mentioned in sub section 4. There is no statutory power with any Court to declare persons accused of other offences being declared as proclaimed offenders. Mr. Cheema further submits that the finding of revisional court regarding compliance of Section 82 (1) (2) and (3) warrants interference by this Court only when the order of Magistrate was bad in law and non- speaking. Moreover it is a mandatory requirement of law that Court can only pronounce a person proclaimed offender after making such inquiry as it deems fit but in the present case no such inquiry was ever made by the trial Court. Moreover, it is also a settled proposition of law that for adopting the course of issuing proclamation, the Court must record a clear and Crl. Misc. No. M-26996 of 2009 (3) concise finding that the accused was absconding or was concealing himself and this finding is judicial in nature which forms the basis for taking any step. Mr Cheema also submits that no summons or warrants were ever served on respondent No.2. Even no official from Police Station Mujessar, District Faridabad ever approached any police station for the purpose of service of non-bailable warrants or for the purpose of service of proclamation, which is a statutory requirement of law as per in Punjab Police Rules No. 26.10 (2). Respondent No.2 was not at Faridabad, which is clear from the statement of ASI Mohinder Kumar made on 22.6.2009 stating that he raided at Gurgaon and Bhilai and the accused was not found there. The statement of ASI Mohinder Kumar is totally incorrect as no date was given by him as to on which date and at what time he visited his residence at Bhilai. Moreover no official from Police Station Mujessar (Faridabad) or Gurgaon ever contacted the local police having jurisdiction at Bhilai. Mr. Cheema at the last submits that it is a case of total manipulation of the record to get a fake service of proclamation and respondent No.2 was declared proclaimed offender on the basis of twisted facts manipulated by police authorities at the instance of petitioner. Mr. Cheema also relied upon the judgments in the case of State of Uttar Pradesh and others Vs. Dr. Vijay Anand Maharaj AIR 1963 SC 946, Kanai Lal Sur Vs. Paramnidhi Sadhukhan AIR 1957 SC 907, Nelson Motis Vs. Union of India and another AIR 1992 SC 1981, Maj. Genl. A.S. Gauraya & Anr. Vs. Shri S.N. Thakur and another 1986 CAR 117 (SC), The State of Uttar Pradesh Vs. Lalai Singh Yadav 1977 Crl. L.J. 186, Devendra Singh Negi @ Debu Vs. State of U.P. and another 1994 Crl. L.J. 1783, Dip Narain Singh and others Vs. The State of Bihar 1981 Crl. L.J. 1672 and Sunil Kumar Vs. State 2002(1) RCR (Criminal) 119. I have heard the arguments advanced by learned counsel for Crl. Misc. No. M-26996 of 2009 (4) the parties and also gone through the impugned order and other documents on the file. In the present case, FIR No. 160 dated 26.2.2009 was registered on the basis of statement of Petitioner-Anil Kumar Aggarwal stating that he is Chairman and Managing Director of Company in the name of M/s Lakhsmi Ventures (Bombay) Pvt. Limited. The company was also owner of plot No. 65 Industrial Township, Faridabad measuring 447 Sq. yards. Sunil Aggarwal-respondent No.2 was Director in the company and by forging resolution of the Company in connivance with Vinay Walia and Smt. Indira Walia sold the said plot of the company in favour of Vinay Walia, an old employee of the company. The sale was made on the basis of forged document. After registration of FIR, respondent No.2 approached Court of Sessions at Faridabad for grant of anticipatory bail and the same was dismissed on 28.3.2009 on the ground that he never appeared before the trial Court nor he surrendered before the police and proceedings against him were going on before the trial Court and non-bailable warrants were issued against him and he was declared proclaimed offender on 12.8.2009. In the meanwhile, respondent No.2 approached this Court for grant of anticipatory bail which came up for hearing on 25.8.2009, wherein, notice of motion was issued for 10.9.2009 and arrest of the petitioner was stayed. Subsequently, respondent No.2 filed a revision petition before Additional District & Sessions Judge, Faridabad against order dated 12.8.2009 passed by the Judicial Magistrate Ist Class, Faridabad whereby he was declared proclaimed offender. The aforesaid revision petition was allowed on the ground that interim bail has been granted by High Court on 25.8.2009 and as per provisions of Section 82 (4) Cr.P.C, he cannot be declared as proclaimed offender. The present petition has now been filed challenging the order of Additional Sessions Judge, Faridabad, whereby, revision petition filed by Crl. Misc. No. M-26996 of 2009 (5) respondent No.2 was allowed. The contention of learned counsel for the petitioner that the revision petition was allowed by Additional Sessions Judge, Faridabad only on the basis of misinterpretation of Section 82 (4) Cr.P.C. and concealment of facts and that order was passed in a hurried manner, which is contrary to the settled provisions of law as well as provisions of Section 82 (4) Cr.P.C. Now, the question for consideration before this Court is whether respondent No.2 was rightly declared proclaimed offender or not. Section 82 (4) Cr.P.C. is reproduced as under:- (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 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 (45 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. Respondent No.2 was declared proclaimed offender on 17.8.2009 and he filed Crl. Misc. No. M-22657 of 2009 and the same was listed for hearing on 25.8.2009 and it was not mentioned in the petition filed in this Court that he was declared proclaimed offender by the trial Court. This Court issued notice of motion for 10.9.2009 and arrest was also stayed on 25.8.2009. After getting bail from this Court, respondent No.2 filed revision petition to challenge P.O. Proceedings on the ground that he had been granted anticipatory bail by High Court and as per provisions of Section 82 (4) of Cr.P.C., he could not be declared proclaimed offender as it is not permitted as per amended provision in Section 82 (4) Cr.P.C. The Crl. Misc. No. M-26996 of 2009 (6) revision petition was allowed and order declaring him proclaimed offender was set aside. Respondent No.2 has acted in such a manner that certain facts were concealed from the Court and nothing was mentioned in the petition filed before this Court that P.O. proceedings are pending and first he got anticipatory bail and later on revision petition was filed. The revisional Court allowed the revision petition by interpreting Section 82 (4) Cr.P.C. that as per amended Section a person can be declared under Section 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. Only on the basis of this misinterpretation, order of declaring respondent No.2 as proclaimed offender was set aside. Moreover, the revision filed by respondent No.2 was allowed in such a hurried manner and the order of revisional Court is contrary to interpretation of Section 82 (4) and (5) of Cr.P.C. Section 82 (4) and (5) of Cr.P.C. was inserted by the amendment for empowering a court to declare a person as proclaimed offender where he fails to appear at specified place and time mentioned in the proclamation issued under sub-section (1) of Section 82 of Cr.P.C. in relation to the offences. The provisions of sub-section (4) & (5) shall apply with regard to declaration so made. The learned Additional Sessions Judge, Faridabad has totally misinterpreted and misunderstood the Section 82 (4) of Cr.P.C. and passed the order dated 9.9.2009 meaning thereby that no body can be declared as proclaimed offender except the section mentioned in sub-section (4) of Section 82 of Cr.P.C. Moreover, the judgments relied upon by the counsel for respondent No.2 are not applicable in the present case. Even it is clear from the sequence of events that everything has been managed in such a manner by concealing the true facts and by twisting the provisions and the amendment. Crl. Misc. No. M-26996 of 2009 (7) Keeping in view the facts mentioned above, the petition is allowed and order dated 9.9.2009 (Annexure P-5) passed by Additional Sessions Judge, Faridabad is set aside. 30.3.2010 (DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No Crl. Misc. No. M-26996 of 2009 (8) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-22657 of 2009 DATE OF DECISION: 30.3.2010 Sunil Aggarwal ..........Petitioner Versus State of Haryana ..........Respondent BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. R.S. Cheema, Senior Advocate with Mr. Rajiv Trikha, Advocate for the petitioner. Mr. S.S. Mor, Sr. DAG, Haryana. Mr. R.S. Rai, Senior Advocate with Mr. Gaurav Kathuria, Advocate for respondent No.2. **** DAYA CHAUDHARY, J. In view of the order passed in Crl. Misc. No. M-22657 of 2009, this petition is dismissed. 30.3.2010 (DAYA CHAUDHARY) pooja JUDGE