Shariff vs State

Instant misc. petition has been filed by the petitioner against the order dated 29.01.2020 passed by learned Additional Sessions Judge, Churu whereby the revision petition filed by the petitioner has been dismissed and the order dated 17.12.2016 passed by the Chief Judicial Magistrate, Churu has been affirmed whereby, the learned court below issued warrant of arrest against the petitioner under Section 37 of the Police Act and also initiated proceedings under Section 82 & 83 Cr.P.C.

Learned counsel for the petitioner submits that at the relevant time, the petitioner was abroad and now he has come to India and ready to surrender before the Court. It is submitted that the procedure prescribed under Section 82 Cr.P.C was not followed inasmuch as no satisfaction was recorded by the trial court that the petitioner has absconded or is concealing himself so that summons cannot be executed. The trial court has also not mentioned that summons were even attempted to be served upon the petitioner through Ministry of External Affairs at UAE. Thus, the revisional court as well as the trial court without considering this material aspect of the matter has declared the petitioner as proclaimed offender which is wholly illegal. It is further submitted that petitioner is under the treatment of liver infection, so a date may be fixed so that he can appear before the trial court on the stipulated date. Learned counsel for the petitioner placed reliance on the order dated 21.08.2018 passed in S.B.Crl. Misc. Petition No. 4216/2018 (Gajanand Vs. State), Sunil Kumar Vs. State reported in 2002 Cr.L.J 1284.

Per contra learned Public Prosecutor opposed the prayer made by the petitioner and supported the impugned orders passed by the courts below.

I have considered the rival contention of the parties and carefully gone through the material on record.

A perusal of the impugned order passed by the trial court would go to show that the trial court has not mentioned in its order as to whether the petitioner was concealing himself and notice was attempted to be served through Ministry of External Affairs. It has only been mentioned that the petitioner is residing abroad and issued warrant under Section 37 of the Police Act. Thereafter, on the next date, petitioner was declared absconding and straightaway proceedings under Section 82, 83 Cr.P.C were ordered to be initiated.

Section 82 Cr.P.C reads as under :-

"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 specific 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 home-stead 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 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 to 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 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.

(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)."

In view of above, the order dated 29.01.2020 passed by learned Additional Sessions Judge, Churu and the order dated 17.12.2016 passed by the Chief Judicial Magistrate, Churu are hereby set aside. The petitioner is now directed to appear before the trial court on or before 10.08.2020. Till then the petitioner shall not be arrested. On the said date, the learned trial court shall decide the bail application on the same day, in accordance with law.

Record of the trial court be sent back forthwith. Stay petition also stands disposed of.