Allowed

Deepak Sitaram Modhe v. State of Maharashtra

Bombay HC22 Dec 2023APL/1647/2023

Case brief

AI extract

What is this about?

The High Court set aside an order passing a proclamation under Section 82 of Cr.P.C. that required the applicant to appear before the Court within five days, holding it violated the mandatory thirty-day notice period prescribed by law.

What did the court decide?

The impugned order is set aside; liberty granted to initiate fresh process for issuing proclamation in accordance with the law.

Deepak Sitaram Modhe Vs State of Maharashtra — Writ and Judicial Review | Bombay HC (2023)

¶1

8-apl-1647-23

¶2

1 of 6

¶3

Gokhale

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶5

CRIMINAL APPLICATION NO. 1647 OF 2023

¶6

Deepak Sitaram Modhe ..Applicant.
Versus
State of Maharashtra..Respondent

¶7

Mr. Aashish Satpute for Applicant.
Ms. Sangita D. Shinde, APP for State/Respondent.

¶8

CORAM : SARANG V. KOTWAL, J.
DATE : 22DECEMBER 2023

¶9

PC :

¶10

1.Heard Shri. Aashish Satpute, learned counsel for the

¶11

Applicant and Ms. Sangita Shinde, learned APP for the
State/Respondent.

¶12

2.The Applicant has challenged the order dated

¶13

Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date: 2023.12.22 16:57:33 +0530

¶14

29.11.2023 passed by the J.M.F.C., Court No.7, Pune, issuing
proclamation U/s.82 of the Cr.P.C. The applicant is the original
accused in C.R.No.294 of 2023 dated 04.09.2023 registered at
Khadak police station, Pune city, under sections 307, 376(2)(n),
377, 392, 506(2), 504 and 323 of the I.P.C., under section 3 and
25 of the Arms Act and U/s.37 r/w. 135 of the Maharashtra Police

¶15

2 of 68-apl-1647-23

¶16

Act. A short point raised before me by the applicant is that, the
proclamation issued against the applicant directs him to appear
before the Court in a short period from issuance of the order;
whereas, Section 82 of the Cr.P.C. requires that there has to be
period of at least 30 days after which only such offender can be
directed to remain present. In support of his case, learned counsel
for the applicant relied on the three orders passed by three single
Judge benches of this Court. They are passed in Criminal Writ
Petition No.4551 of 2021 in the case of Vinay Ramnarayan Singh
@ Bablu V/s. The State of Maharashtra, Criminal Application
No.560 of 2021 in the case of Rammi Paramjeetsingh Rajput
Versus The State of Maharashtra & Ors. and Criminal Writ Petition
No.2549 of 2023 in the case of Viraj Dnyaneshwar Vibhute Versus
The State of Maharashtra.

¶17

3.Learned APP could not counter these arguments as the
three orders referred to herein above squarely covered the issue.
She submitted that, in case the order is set aside, the investigating
agency be given fresh liberty to pursue this remedy.

¶18

3 of 68-apl-1647-23

¶19

4.I have considered these submissions. The impugned

¶20

order mentions that the learned Magistrate had issued arrest
warrant against the applicant on 24.11.2023, but he was not
found. The learned Magistrate was satisfied that the applicant was
absconding or that he was hiding himself to avoid execution of
warrant. Therefore, the learned Magistrate directed the applicant
to appear before him on 04.12.2023 at 11.00a.m. This order was
passed on 29.11.2023.

¶21

5.Section 82(1) of the Cr.P.C. mentions that, specific time
cannot be less than 30 days from the date of publishing such
proclamation. The said Section 82 of the Cr.P.C. reads thus:-

¶22

Section 82 - Proclamation for person absconding

¶23

(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 hi m to appear at a specific
place and at a specified time not less than thirty days
from the date of publishing such proclamation.

¶24

(2) The proclamation shall be published as follows:-

¶25

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

¶26

8-apl-1647-23

¶27

4 of 6

¶28

(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;

¶29

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

¶30

(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.

¶31

(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.

¶32

(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.

¶33

(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).

¶34

5 of 68-apl-1647-23

¶35

6.All the above three orders have taken this provision into

¶36

consideration and in all these orders it is mentioned that the
period cannot be less than 30 days. In the present case, the order
is passed on 29.11.2023 and the applicant was directed to appear
on 04.12.2023. Therefore, I am inclined to take a similar view
which is taken in all the aforesaid orders. At the same time, the
investigating agency needs to be given sufficient opportunity to
make all the efforts to take steps in accordance with law to secure
presence of the applicant.

¶37

7. Hence, the following order:

¶38

O R D E R

¶39

i) The order dated 29.11.2023 passed by the J.M.F.C., Court No.7, Pune, issuing proclamation against the applicant is set aside.

¶40

ii)It is clarified that the said Court can initiate fresh process for issuing proclamation in accordance with requirement of Section 82 of the Cr.P.C.

¶41

iii)The investigating agency is at liberty to take appropriate steps to secure presence of the

¶42

8-apl-1647-23

¶43

6 of 6

¶44

applicant in accordance with law.

¶45

iv)With this observation, the application is disposed
of.

¶46

(SARANG V. KOTWAL, J.)

Deepak Sitaram Modhe v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Deepak Sitaram Modhe v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Balu Appa Khavare Vs State of Maharashtra

Deepanjali Shivanand Potdar Vs M/S. Matter Toys (India ) Pvt. Ltd., and Anr.

Kadiri Muhammad Ali Vs State of Maharashtra

Raj Arvind Patel Vs State of Maharashtra and Anr.

Hifzur Rehman Ansari and Anr. Vs State of Maharashtra and Anr.

Seema Amruta Keswad Vs State of Maharashtra