IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 05.10.2009 Coram:- THE HON'BLE MR. JUSTICE R.REGUPATHI Crl.O.P.No.1392 of 2009 and M.P.No.1 of 2009 1. L. Vijayakumar 2. Barani Kumar ..Petitioner/Accused vs. The State rep. By Inspector of Police, Central Crime Branch, Salem City. ..Respondent/Complainant Petition under Section 482 of the Code of Criminal Procedure praying to call for the records related with the order passed in C.C.No.212/04 dated 23.09.2004 on the file of the Judicial Magistrate No.V, Salem, declaring the petitioners as proclaimed offender for the alleged offences under Sections 419, 420, 468, 471 and 109 I.P.C. quash the same. For Petitioner : Mr.KPS.Palanivelrajan For Respondent : Mr.N.R.Elango, Addl. Public Prosecutor. O R D E R The petitioners, who are accused in C.C. No.212 of 2004 taken on file by Judicial Magistrate No.V, Salem District, for offences u/s.419, 420, 468, 471 and 109 IPC, challenge the order dated 23.09.2004 in any by which they were declared as proclaimed offenders. 2. It is seen that the petitioners, who were taken as accused in Cr.No.2 of 2003 on the file of the respondent police, were absconding at the time of investigation and the learned Magistrate, after taking the case on file on 24.03.2004, issued Non-Bailable Warrant on 25.03.2004 and it was sent to the respondent police for execution. The respondent police made all possible efforts to apprehend the petitioners but in vain, whereupon, enclosing a detailed report submitted to the Commissioner of Police, Salem City, a requisition was made on 27.04.2004 by the respondent to the trial court by https://hcservices.ecourts.gov.in/hcservices/ preferring a petition to declare the petitioners as 'proclaimed offenders' and by order dated 23.09.2004, the trial court passed the following order, " Whereas complainant has been made before me that 1.L.Vijayakumar S/o.Laxmanan 2.L.Bharni Kumar, S/o.Laxmanan Sivaya Nagar, Salem.16 has committed the offered of (sic. for, offences) punishable under Section 420, 419, 468, 471, 417, 420, 471 r/w.100 of the Indian Penal Code, and it has been returned to a warrant of arrest thereupon issued that the said 1.L.Vijayakumar 2. L.Bharani Kumar, Central Crime Branch cannot be found, and whereas it has been shown to my satisfaction that the said 1.Vijayakumar 2.Bharani Kumar has absconded. Proclamation is hereby made that the said A1, A2, C.C.B. Salem of is required to appear at before this Court to answer the said complaint on the day of 19.10.2004. Dated this 23.9.2004 sd/- 23.9.04 Judicial Magistrate No.V, Salem." The petitioners, aggrieved by such order of the trial court, have filed the present petition. 3. Learned counsel for the petitioners, by referring to Section 82 of the Code of Criminal Procedure, "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; https://hcservices.ecourts.gov.in/hcservices/ (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. .... ", would submit that having regard to the procedure prescribed as above, an opportunity must be given to the person concerned for appearance before the court within 30 days from the date of publication of such proclamation, but, by order passed on 23.09.2004, the date of appearance was fixed as 19.10.2004; thus, the respite as stipulated by the code has not been granted and in such circumstances, the impugned order is liable to be set aside. 4. Per contra, learned Additional Public Prosecutor submits that the petitioners were absconding from 14.03.2003 viz., the date of registration of the case and, by pointing out the averments made in the affidavit, he states that the pendency of the case is very well known to the petitioners and though 30 days period as stated in the provision has not been mentioned in the order impugned, the petitioners would have very well appeared within 30 days from the date of the order but they purposely abstained; therefore, based on the technical ground raised, the order impugned need not be set aside. He also submits that the present petition seeking to set aside the order of the trial court has been filed much later ie., on 06.01.2009, and the grievance of the petitioners need not be looked into at all when apparently no prejudice is shown to have been caused to them as a result of the impugned order. 5. I have perused the materials available on record having regard to the rival submissions made on either side. 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 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. Consequently, the Criminal Original Petition is ordered and the order passed by the trial court is set aside. Learned counsel for the petitioner, on instruction, submits that the petitioners are willing to surrender before the trial court within two weeks from https://hcservices.ecourts.gov.in/hcservices/ to-day. In the meantime, the respondent police may also file fresh petition seeking for issuance of fresh order of proclamation. In both the cases, the trial court, having regard to the procedure prescribed and the facts and circumstances involved, may pass necessary orders in accordance with law. Connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar JI. To 1. The Judicial Magistrate No.V, Salem District. 2. -do- Through The Chief Judicial Magistrate, Salem. 3. The Inspector of Police, Central Crime Branch, Salem City. 4. The Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. G. Mathavan, Advocate. S.R.No.50867. Crl.O.P.No.1392 of 2009 CK (CO) GSK 08.10.2009. https://hcservices.ecourts.gov.in/hcservices/