Naresh vs State Of HP

Sandeep Sharma, J

By way of instant petition filed under Section 482 Cr.PC, challenge has been laid to order dated 19.2.2014, passed by the learned CJM, Chamba, H.P., in case No. 139-I/11, titled State v. Naresh, whereby the petitioner came to be declared proclaimed offender on account of his continuous absence from the trial despite service.

Having perused averments contained in the petition as well as documents annexed therewith vis-à-vis prayer made in the petition, learned Additional Advocate General fairly states that he does not intend to file any reply to the petition and shall have no objection in case, petitioner is permitted to join the proceedings before the Court below.

Careful perusal of zimini orders placed on record, reveals that on account of continuous absence of the petitioner, repeatedly bailable/non- bailable warrants were issued against him, but every time, those were received back unserved with the report that the petitioner is not found on the given address. Order dated 8.8.2013, passed by the court below reveals that Pradhan, Gram Panchayat Masrund, in his statement given to Process Server informed that for the last 4-5 years, petitioner has not come to the village. Having taken note of the aforesaid statement of the Pradhan, proclamation proceedings under Section 82 Cr.PC came to be initiated against the accused. Zimini orders placed on record nowhere reveal that court before issuing proclamation under Section 82 Cr.PC arrived at a conclusion that the petitioner is absconding or purposely concealing himself to avoid service. Section 82 Cr.PC clearly reveals 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, then 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.

In the case at hand, record reveals that court below after having taken note of the report of the Pardhan Gram Panchayat that petitioner has not come to his village for 4-5 years, directly proceeded to issue proclamation under Section 82 Cr.PC., whereas before issuance of proclamation it ought to have recorded finding that it has reason to believe and presume that petitioner is avoiding service and/or he is concealing himself to avoid service. Be that as it may, averments contained in the petition reveal that factum with regard to pendency of the case came to the notice of the petitioner in the year, 2020 and he is ready and willing to join the proceedings before the court below, but since he is apprehending his arrest on account of his being declared proclaimed offender, he has approached this Court in the instant proceedings.

Consequently, in view of the above, order dated 19.2.2014, passed by the court below is quashed and set-aside to the extent petitioner has been declared proclaimed offender subject to the condition that petitioner would make himself available before the court below on 19.4.2021. Learned counsel for the petitioner undertakes to cause presence of the petitioner before the court below on the aforesaid date, enabling it to proceed further with the matter. Petitioner shall not be arrested by the police pursuant to his being declared proclaimed offender till 19.4.2021, but in case he fails to make himself present before this court on the date fixed by this Court, order dated 19.2.2014, shall automatically revive and police would be at liberty to arrest him. In the aforesaid terms, present petition is disposed of alongwith pending application(s), if any. Copy dasti.