Accused residing in Canada before registration of FIR - No attempt made to serve in Canada - Accused cannot be declared proclaimed offender

PUNJAB AND HARYANA HIGH COURT

Before :- Mrs. Sabina, J.
Crl. Misc. No. M-1513 of 2009. D/d. 25.05.2009.

Mehar Singh & Anr. - Petitioners
Versus
State of Punjab - Respondent

For the Petitioners :- Manu K. Bhandari, Advocate.
For the Respondent :- Amandeep Singh Rai, AAG, Punjab.

Punjab and Haryana High Court, Chandigarh

ORDER


Mrs. Sabina, J. - The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure ("Cr.P.C. for short) for setting aside order dated 7-10-2008 (Annexure P-10) passed by the Chief Judicial Magistrate, Fatehgarh Sahib, whereby they have been declared proclaimed offenders.
2. Tarlochan Singh lodged a complaint against Surjit Singh alias Jeet Singh, Sadhu Singh, Avtar Singh, Shangara Singh and Gurpal Singh for getting issued passport No. A8839939 in the name of Surjit Singh alias Jeet Singh (deceased). It was averred in the complaint (Annexure P-2) that Surjit Singh had died on 24-5-1993. The accused persons got a passport issued in the name of deceased in connivance with each other. On the basis of the complaint, FIR No. 131 dated 27-9-2007 under Sections 420, 467, 468, 471 and 201 read with Section 120-B of the Indian Penal Code, was registered at Police Station Khumano. After investigation of the case, final report was presented against Avtar Singh, whereas, the petitioners were shown in column No. 2 and a note was given that proceedings for declaring the petitioners as proclaimed offenders under Sections 82 and 83, Cr.P.C. were pending. The petitioners were declared proclaimed offenders vide impugned order dated 7-10-2008 (Annexure P-10). Hence, the present petition.
3. Learned counsel for the petitioners has submitted that the petitioners were permanent residents of Canada and were residing there since the year 1997 and had never visited India since then. In these circumstances, there was no occasion for the petitioners to evade process of Court and hence, the order declaring them proclaimed offenders was illegal, null and void because no proper service of summons/notice had been effected on the petitioners. Inquiry was conducted by Deputy Superintendent of Police, Khumano and it was observed in the report (Annexure P-6) that the sponsorship papers have been prepared in Canada and hence, no offence has been committed by the petitioners in India. The petitioners were found innocent and vide Annexure P-7, it was observed that the names of the petitioners should be deleted from the array of accused. Despite this, proceedings for declaring the petitioners as proclaimed offenders continued before the trial Court.
4. Learned State counsel, on the other hand, has submitted that the petitioners despite the proclamation had failed to appear before the trial Court and have been rightly declared proclaimed offenders vide the impugned order.
5. Proclamation for an absconding person is issued under Section 82, Cr. P.C. which is reproduced as under :-
    "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 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 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;
    (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 Sections 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, 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)."
6. Section 83 provides for attachment of property of the person absconding. The Court issuing a proclamation under Section 82, Cr.P.C. may, for the reasons recorded in writing, at any time after issuing of proclamation, order the attachment of any property, movable or immovable, or both of the proclaimed persons.
7. In the present case Head Constable Bhupinder Singh reported that he had inquired about the petitioners at the given address and found that they had gone to Canada and requested for issuance of proclamation of both the petitioners. On this ground learned Chief Judicial Magistrate, Fatehgarh Sahib vide order dated 21-12-2007 (Annexure P-3) ordered that the petitioners be summoned through proclamation under Section 82, Cr.P.C. and further directed the Additional Public Prosecutor to furnish list of property of the petitioners so that proceedings under Section 83, Cr.P.C. could be initiated against them. Vide order dated 7-10-2008 (Annexure P-10), learned Chief Judicial Magistrate declared the petitioners as proclaimed offenders because despite proclamation they had failed to appear.
8. The petitioners; as per the averments in the petition, are residing in Canada much before the registration of FIR in question. As per Section 82, Cr. P.C. proclamation can issued against a person if the Court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself and that the warrant cannot be executed.
9. In the present case, since the petitioners were already residing in Canada before the registration of FIR in question i.e. since the year 1997, there was no occasion for them to conceal themselves or abscond. A perusal of order dated 7-10-2008 (Annexure P-10) and order dated 21-12-2007 (Annexure P- 4) does not reveal that the petitioners were ever attempted to be served in Canada especially when there was no material on record that the petitioners had left the country after the registration of FIR in question with a view to abscond or conceal themselves. Rather in the inquiries conducted by the police, the petitioners were found to be innocent because the alleged papers in question were prepared in Canada. Thus, the petitioners were declared proclaimed offenders in violation of Section 82, Cr. P.C.
10. Accordingly, the impugned order dated 7-10-2008 (Annexure P-10), whereby the petitioners were declared proclaimed offenders, is set aside. Learned Chief Judicial Magistrate, Fatehgarh Sahib is directed to pass a fresh order with regard to the proceedings against the petitioners under Section 82, Cr. P.C. in accordance with law.
11. Petition stands disposed of accordingly.

Order accordingly.
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