Allowed

Gurchetan Singh @ Hathuria v. State of Punjab

Punjab & Haryana HC6 Dec 2012CRM-M/26068/2012

Case brief

AI extract

What is this about?

The High Court held that since the petitioner was not facing trial for offences specified under Section 82(4) CrPC, he could not be declared a proclaimed offender but could be declared a proclaimed person. Consequently, the order was modified to declare him a proclaimed person liable for property attachment under Section 83 CrPC.

What did the court decide?

The order declaring the petitioner a proclaimed offender was set aside; he was declared a proclaimed person liable for attachment of property and punishment under Section 174-A IPC.

Gurchetan Singh @ Hathuria Vs State… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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Criminal Misc. No.M-26068 of 2012

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Criminal Misc. No.M-26068 of 2012 Date of decision : 06.12.2012

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Gurchetan Singh @ Hathuria

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................ Petitioner

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vs.

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State of Punjab

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................. Respondents

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Whether Reporters of Local Newspapers may be allowed to

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see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Coram: Hon'ble Mr. Justice K.C. Puri

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Present: Shri Rahul Sharma, Advocate for the petitioner. Shri Sandeep Chhabra, DAG, Punjab

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K.C. Puri, J.

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Challenge in the present petition under Section 482 of the Code of Criminal Procedure is the order dated 12.3.2012 (Annexure P-2) vide which the petitioner has been declared proclaimed offender.

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The case of the petitioner is that criminal case under Sections 323, 341, 324, 148 and 149 of the Indian Penal Code ( in short – the IPC) was registered against the petitioner vide FIR No.303 dated 10.11.2009 at Police Station City Jagraon.

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Learned counsel for the petitioner has submitted that vide order

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Criminal Misc. No.M-26068 of 2012

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Annexure P-2 the petitioner has been declared proclaimed offender. It is submitted that in view of the amendment in Section 82 sub section 4 of the Cr.P.C., the petitioner cannot be declared as proclaimed offender as he is not covered by the offences mentioned in sub Section 4 of Section 82 of the Code of Criminal Procedure.

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Learned counsel for the petitioner has relied upon authority Rahul Dutta vs. State of Haryana 2012(2) R.C.R. (Criminal ) page 585 and Sanjay Sarin versus State (Union Territory,) in Criminal Misc. No.M.24202 of 2011 decided on 30.11.2012.

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Learned State counsel has submitted that although the petitioner cannot be declared proclaimed offender but in view of the authorities relied upon by the petitioner himself, referred to above, he can be declared proclaimed person. So, the order Annexure P-2 can be modified to the extent that petitioner is the proclaimed person and not proclaimed offender.

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I have given my thoughtful consideration to the rival submissions made by both the sides.

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In order to properly appreciate the facts of the case, Section 82 of the Cr.P.C. is reproduced as under :-

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“82. Proclamation for person absconding.

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(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 specified place and at a

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Criminal Misc. No.M-26068 of 2012

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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 home-stead in which such person ordinarily resides or to some conspicuous place of such town or village;

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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 subsection (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, 398, 399, 400, 402, 436, 499, 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

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Criminal Misc. No.M-26068 of 2012

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(6) they apply to the proclamation published under subsection (1).”

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From the bare perusal of sub Section 4 mentioned above, the accused can be declared proclaimed person in respect of the offences mentioned in the said sub section. The petitioner admittedly is not facing trial under any of the offences mentioned above. So, in these circumstances, the petitioner cannot be declared proclaimed offender but in view of authorities Rahul Dutta's case (supra) and Sanjay Sarin's case (supra) referred to above, the petitioner can be declared as proclaimed -person. Section 174-A of the IPC is reproduced as under :-

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“174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974 . - Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 (2 of 1974) shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”

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The Parliament in its wisdom has provided different sentences

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for proclaimed person and proclaimed offender. Under Section 174-A of the IPC the punishment is severe in case the accused is declared a proclaimed offender than the accused who has been declared proclaimed person.

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Criminal Misc. No.M-26068 of 2012

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In authority Sanjay Sarin's case (supra), this court set aside the order of declaring the accused as proclaimed offender being against the provisions of Section 82 sub section 4 of Cr.P.C. but observe as under :-

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“In these circumstances, although the impugned order declaring the petitioner a proclaimed offender cannot be sustained, however, he is a proclaimed person against whom proclamation stands published and he is liable to be proceeded under Section 83 Cr.P.C., by way of attachment of his property as also under Section 174-A, IPC. The petition is allowed in the above terms.”

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Relying upon the said authority, this case is also required to be decided accordingly.

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In these circumstances, the order declaring the petitioner as proclaimed offender cannot sustain, however, he is a proclaimed person against whom proclamation stands published and he is liable to be proceeded under Section 83 of the Cr.P.C. by way of attachment of his property as also under Section 174-A, IPC.

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The petition is allowed in the above said terms.

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A copy of this judgment be sent to the trial Court for strict compliance.

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( K.C. PURI ) December 06, 2012 JUDGE sv

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Criminal Misc. No.M-26068 of 2012 6

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Criminal Misc. No.M-26068 of 2012

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From the bare perusal of sub Section 4 mentioned above, the accused can be declared proclaimed person in respect of the offences mentioned in the said sub section. The petitioner admittedly is not facing trial under any of the offences mentioned above. So, in these circumstances, the petitioner cannot be declared proclaimed offender but in view of authorities Rahul Dutta's case (supra) and Sanjay Sarin's case

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(supra) referred to above, the petitioner can be declared as proclaimed -person. Section 174-A of the IPC is reproduced as under :-

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174. Non-attendance in obedience to an order form public

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servant

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Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same,

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Intentionally omits to attend at that place or time, or departs form the place where he is bound to attend before the time at which it is lawful for him to depart,

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Shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;

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Or, if the summons, notice, order of proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six

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Criminal Misc. No.M-26068 of 2012

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months, or with fine which may extend to one thousand rupees, or with both.

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The Parliament in its wisdom has provided different sentences

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for proclaimed person and proclaimed offender. Under Section 174 of the IPC the punishment is severe in case the accused is declared proclaimed offender than the accused who has been declared proclaimed person.

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In these circumstances, the order declaring the petitioner as proclaimed offender cannot sustain, however, he is a proclaimed person against whom proclamation stands published and he is liable to be proceeded under Section 83 of the Cr.P.C. by way of attachment of his property as also under Section 174-A, IPC.

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The petition is allowed in the above said terms.

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A copy of this judgment be sent to the trial Court for strict compliance.

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( K.C. PURI ) December 06, 2012 JUDGE sv

Gurchetan Singh @ Hathuria v. State of Punjab

Case brief

What is this about?

What did the court decide?

Gurchetan Singh @ Hathuria v. State of Punjab

Case brief

What is this about?

What did the court decide?

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