Dismissed

Zafar Hasan and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

Allahabad HC7 Mar 2024/1980/2024

Case brief

AI extract

What is this about?

The applicant challenged the affixation of a warrant proclamation under Section 82 Cr.P.C. on their residence, claiming harassment despite not being accused. The court noted that law mandates affixation at the accused's residence per identity documents and dismissed the application as lacking merit.

What did the court decide?

Application for quashing of proclamation is dismissed as it lacks merit.

Zafar Hasan and Another Vs State of… — Constitutional and Fundamental Rights | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:20610

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Court No. - 27

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Case :- APPLICATION U/S 482 No. - 1980 of 2024

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Applicant :- Zafar Hasan And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others Counsel for Applicant :- Kashif Haider,Abul Fazal Jaffrey Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Abul Fazal Jaffrey, learned counsel for the applicants and Sri Gyanendra Singh, learned A.G.A. for the State.

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By means of the present petition filed under Section 482 Cr.P.C., the applicants have sought quashing of proclamation under Section 82 Cr.P.C. issued against Wasif Hasan, who is the son of applicants and accused in Case Crime No.128 of 2022, under Sections 406, 420, 467, 468, 471, 506, 120-B IPC, Police Station Wazirganj, District Lucknow.

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Submission of learned counsel for the applicants is that the applicants had severed all their relation with their son-the accused Wasif Hasan. The accused Wasif Hasan does not reside with the applicants at their house and, therefore, the proclamation under Section 82 Cr.P.C. ought not to have been affixed on the house of the applicants. Learned counsel for the applicants has further submitted that the law does not encourage harassment of innocent persons. He has further submitted that undisputedly, none of the applicants is an accused in any offence and affixation of proclamation under Section 82 Cr.P.C. in front of their house is causing unwarranted embarrassment to them and it amounts to their harassment, although they are not at fault.

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Learned counsel for the applicants has further submitted that son of the applicants is an accused in more two cases, namely, Case Crime No. 129 of 2022, under Sections 406, 420, 467, 468, 471, 506, 120-B IPC., Police Station Wazirganj, District Lucknow and Case Crime No. 119 of 2022, under Sections 406, 420, 467, 468, 471, 506, 120-B IPC., Police Station Wazirganj, District Lucknow. Regarding those cases also, proclamations under Section 82 Cr.P.C. were affixed on the house of the applicants and they have filed applications under Section 482 Cr.P.C. Nos.1150 of 2024 and 1971 of 2024 and this Court has

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granted interim protection to the applicants by means of the interim orders dated 08.02.2024 and 01.03.2024, respectively passed in those cases.

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I have perused the aforesaid interim orders which record the submission of learned counsel for the applicants but in which no finding or reasoning has been recorded. Therefore, the aforesaid orders being interlocutory in nature and the same not deciding any factual or legal issue, are not binding on this Court.

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

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"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.

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(2) The proclamation shall be published as follows—

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(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

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(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;

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(c) a copy thereof shall be affixed to some conspicuous part of the Court house;

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(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.

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(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.

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(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,

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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.

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(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)]".

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The mode of publication of proclamation under Section 82 Cr.P.C., as provided in sub-section (2) of Section 82, provides that the proclamation shall be affixed to some conspicuous part of the house or homestead in which the accused person ordinarily resides or to some conspicuous place of such town or village.

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Therefore, it is clear that the law mandates affixation of proclamation under Section 82 Cr.P.C.on the house of the accused or at some conspicuous place of the town or village.

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In these circumstances, affixation of the proclamation on the house, in which the accused used to reside, would not be illegal.

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So far as the submission of learned counsel for the applicants that the accused does not reside in the house of the applicants, this question of fact cannot be gone into at this stage. Learned counsel for the applicants is not in a position to dispute the fact that the identity documents of the accused mention his address as the house of the applicants. When as per the identity documents of the accused person, his residential address is that of the house of the applicants, the proclamation under Section 82 Cr.P.C. has to be affixed on the house of the applicants.

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In view of the aforesaid discussions, there is no illegality in affixation of the proclamation at the house of the applicants. The application lacks merits and is hereby dismissed .

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Order Date :- 7.3.2024 Renu/-

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Digitally signed by :- RENU AGARWAL High Court of Judicature at Allahabad, Lucknow Bench

Zafar Hasan and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

Case brief

What is this about?

What did the court decide?

Zafar Hasan and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

Case brief

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What did the court decide?

What the court decided

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