Zaid Khan Vs State of Haryana

Application for placing on r e cord the true translated copy of the service r e port carried out for the purp o se of proclamation is allowed as prayed, s u bject to all just exceptions.

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C.M. stands disposed of.

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CRM-M-42036-2025

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Present petition has been f i led under Section 528 of BN S S, 2023, see k ing quashing of order dated 15 . 04.2025 (Annexure P-6) passed by the Addi t ional Sessions Judge, Jind whereby the petitioner was decla r ed proclaim e d person in Sessions Case No . NDPS/21/2022 titled as “State of Haryana vs. Pritam etc.” bearing CNR N o.HRJN010017122022 arising o ut of FIR N o .264 dated 10.11.2021 register e d under Sections 21(C), 29 of the NDPS A c t at Police Station Garhi, Distri c t Jind.

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Learned counsel for the petitioner has iterated that the AJAY KUMAR 2025.09.18 14:25I attest to the accuracy andimpugne d order declaring the petitioner as a proclaimed person is pate n tly integrity of this document

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CRM-M-42036-2025 (O&M) 2 illegal a n d unsustainable as the mand a tory procedure prescribed un d er Section 8 2(2) of Cr.P.C. has not been a dhered to. Learned counsel h as further it e rated that the proclamation w as neither duly published in the manner c o ntemplated under Section 82( 2 )(i)(a) Cr.P.C. nor did the process server pu b licly read out the proclamatio n in a conspicuous place where the petitione r ordinarily resided. It has bee n argued that the inability of the petitione r to join the proceedings was not deliberate. Learned cou n sel asserts t h at the impugned order is ex facie illegal, arbitrary a nd unsustain a ble in the eyes of law and i s , therefore, liable to be set-as i de. Learned c ounsel asserts that the impug n ed order has been passed with o ut properly s crutinizing or verifying the aut h enticity of the report submitted by the proc e ss server. Consequently, the o rder declaring the petitioner a s a proclaim e d person is unsustainable in t h e eyes of law and deserves to be quashed.

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Referring to reply by way of an affidavit of Kamaldeep R a na, HPS, De p uty Superintendent of Police, N arwana, District Jind, on behal f of State of H aryana, learned State counsel has raised submission in tandem with this r eply and has opposed the petiti o n in hand. While refuting the c a se of the pe t itioner, detailed arguments con c erning the merits of the case were made an d it is argued that the offenc e alleged against the petitione r is serious in nature and that the Police conducted a fair and pro p er investiga t ion. According to learned Stat e counsel, the petitioner, after be i ng granted a n ticipatory bail by this Court, j o ined the investigation and suffe r ed his disclosure statement by confessing hi s guilt in the commission of cri m e. After th e completion of the investiga t ion, supplementary report un d er AJAY KUMAR 2025.09.18 14:25I attest to the accuracy andSection 1 73(8) Cr.P.C. against the p e titioner was prepared and w as integrity of this document

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CRM-M-42036-2025 (O&M)

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presente d before the competent Court of j urisdiction. Moreover, it has b e en stated th a t the learned Court below fol l owed the procedure as laid-down under Se c tion 82 of the Cr.P.C., 1973 in l etter and spirit and no discrepa n cy whatsoev e r is forthcoming from the r e cords of the case. Furtherm o re, learned State counsel has contended that though the petitioner was granted the conc e ssion of anticipatory bail, yet a f ter the filing of the supplement a ry challan, h e deliberately chose not to appear before the Court bel o w. Consequ e ntly, the Court, after adopti n g due process declared hi m a proclaim e d person. Lastly, learned Sta t e counsel has submitted that the conduct o f the petitioner clearly demo n strates his willful defiance of the judicial p r ocess and abuse of the conces s ion of bail. Thus, dismissal of the instant p e tition is prayed for.

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I have heard the learned c ounsel for the rival parties a nd carefully p erused the record of the case. 5. The law is well settled th a t a person cannot be declare d a proclaim e d offender/person unless the p r ocedure prescribed under Sect i on 82 Cr.P. C . is meticulously followed. It is trite law that the provisions of Section 82 are mandatory in nature and n on-compliance thereof vitiates the entire pr o ceedings. In the present cas e , the petitioner had earlier b e en granted t h e concession of anticipatory bail by this Court vide order d a ted 03.08.20 2 3 and was regularly appearin g before the trial Court. Lear n ed counsel h as further iterated that on 2 0 .05.2024, however, the petitio n er failed to c ause appearance on account of i ll health and consequently, the b ail of the p e titioner was cancelled. There a fter, the petitioner was unable to cause ap p earance on account of medical e mergency and filed an applicat i on AJAY KUMAR 2025.09.18 14:25I attest to the accuracy andseeking e x emption from personal appear a nce. However, the trial Court v ide integrity of this document

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CRM-M-42036-2025 (O&M)

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impugne d order dated 15.04.2025 decl a red the petitioner as proclai m ed person w hich is not shown to have been executed in conformity w ith Section 8 2 (2) of the Cr.P.C.

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I find the course adopted by the Court below is antithesis to the provisions of Section 82 of the Code of Criminal Procedure, 1973. T he Court below has committed illegality by i ssuing the said proclamation under Section 8 2 of the Criminal Procedure C ode, 1973, without complying the mandator y requirements of law. The le a rned Court below, while declar i ng the petiti o ner as proclaimed person, fai l ed to satisfy itself regarding d ue executio n of proclamation and proceede d in a mechanical manner. Such an order bei n g violative of mandatory prov i sions of law, cannot be sustai n ed. Section 8 2 of the Criminal Procedure Co d e, 1973 reads as under:

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“82. Proclamation for person absconding. - (1) If any Court has re a son to believe (whether after taking e vidence or not) that any person against whom a warrant has been issue d by it has absconded or is concea l ing himself so that such warrant can n ot be executed, such Court may publish a written proclamation requiring h im to appear at a specified place an d at a specified time not less than thi r ty days from the date of publishing such proclamation.

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(2) The proclamation shall be pu b lished as follows: - (i)(a) it shall be publicly read in some conspicuous place of the tow n or village in which such person ordi n arily resides; (b) it shall be affixed to some co n spicuous part of the house or homes t ead in which such person ordinarily r esides or to some conspicuous plac e of such town or village;

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(c) a copy thereof shall be affixe d to some conspicuous part of the courthouse;

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(ii) the Court may also, if it think s fit, direct a copy of the proclamatio n to be published in a daily newspap e r circulating in the place in which such person ordinarily resides.

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(3) A statement in writing by th e Court issuing the proclamation to the effect that the proclamation was d uly published on a specified day, in the manner specified in clause (i) o f sub-section (2), shall be conclu s ive

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AJAY KUMAR 2025.09.18 14:25 I attest to the accuracy and integrity of this document

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CRM-M-42036-2025 (O&M)

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evidence that the requirements o f this Section have been complied w ith, and that the proclamation was pu b lished on such day. [(4) Where a proclamation publi s hed under sub-section (1) is in respe c t of a person accused of an offence punishable under Sections 302, 304, 3 64, 367, 382, 392, 393, 394, 395, 39 6 , 397, 398, 399, 400, 402, 436, 449, 4 59, or 460 of the Indian Penal Cod e (45 of 1860), and such person fail s to appear at the specified place an d time required by the proclamation, the Court may, after making such i n quiry as it thinks fit, pronounce hi m a proclaimed offender and make a d eclaration to that effect. (5) The provisions of sub-section s (2) and (3) shall apply to a declara t ion made by the Court under sub-sec t ion (4) as they apply to the proclama t ion published under sub-section (1).] ”

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A Coordinate Bench of this Court while dealing w ith invocatio n of the provision of Secti o n 82 of the Code of Criminal Procedur e , against an accused in the case of ‘ Sonu v. State of Haryana, 2021(1) RCR (Criminal) 319’ , held as u n der:

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“9. The essential requirements of section 82 of the Cr.P.C., 1973 for issuance and publication of p ro clamation against an absconder and declaring him as proclaimed person/offender may be summarize d as under:(i) Prior issuance of warrant of arrest by the Court is sine qua non for issuance and publication of the p roclamation and the Court has to f irst issue warrant of arrest against th e person concerned. (See Rohit Kum a r v. State of Delhi: 2008 Crl. J. 2561) .

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(ii) There must be a report befor e the Court that the person against w h om warrant was issued had abscond e d or had been concealing himself so t hat the warrant of arrest could not be executed against him. However, the Court is not bound to take ev i dence in this regard before issuin g a Proclamation under section 82(1 ) of the Cr.P.C., 1973. (See Rohit Ku m ar v. State of Delhi : 2008 Crl. J. 25 6 1). (iii) The Court cannot issue the Proclamation as a matter of co u rse because the Police is asking for i t . The Court must be prima facie satis f ied that the person has absconded or is concealing himself so that the war r ant of arrest, previously issued, c a nnot be executed, despite reason a ble diligence. (See BishundayalMah t on and others v. Emperor : AIR 1 9 43 Patna 366 and Devender Sing h Negi v. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783).

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AJAY KUMAR 2025.09.18 14:25 I attest to the accuracy and integrity of this document

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CRM-M-42036-2025 (O&M)

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(iv) The requisite date and place for appearance must be specified in the proclamation requiring such p e rson to appear on such date at the specified place. Such date must n ot be less than 30 clear days from the date of issuance and publication o f the proclamation. (See Gurappa G u gal and others v. State of Mysore : 1 9 69 CriLJ 826 and Shokat Ali v. Stat e of Haryna : 2020(2) RCR (CRIMIN A L) 339).

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(v) Where the period betwe e n issuance and publication of the proclamation and the specified d a te of hearing is less than thirty days, the accused cannot be declared a proclaimed person/offender and the proclamation has to be issued an d published again. (See Dilbagh Sin g h v. State of Punjab (P&H) : 2015 (8) RCR (CRIMINAL) 166 and A s hok Kumar v. State of Haryana and a n other : 2013 (4) RCR (CRIMINAL) 5 50) (vi) The Proclamation has to b e published in the manner laid dow n in section 82(2) of the Cr.P.C., 1973. For publication the proclamation h a s to be first publicly read in some co n spicuous place of the town or villag e in which the accused ordinarily resides; then the same has to be affixe d to some conspicuous part of the h o use or homestead in which the acc u sed ordinarily resides or to some co n spicuous place of such town or vil l age and thereafter a copy of the p r oclamation has to be affixed to s o me conspicuous part of the Court- h ouse. The three sub-clauses (a)- (c ) in section 82 (2)(i) of the Cr.P.C., 1973 are conjunctive and not disjunc t ive, which means that there would be no valid publication of the proclama t ion unless all the three modes of pu b lication are proved. (See Pawan Ku m ar Gupta v. The State of W.B. : 1973 CriLJ 1368). Where the Court so or d ers a copy of the proclamation has to be additionally published in a d aily newspaper circulating in the p lace in which the accused ordin a rily resides. Advisably, proclamation h as to be issued with four copies so t hat one each of the three copies of t h e proclamation may be affixed to s o me conspicuous part of the house or homestead in which the acc u sed ordinarily resides, to some consp i cuous place of such town or village and to some conspicuous part of the Courthouse and report regar d ing publication may be made on the fourth copy of the proclamat i on. Additional copy will be required where the proclamation is also requ i red to be published in the newspaper.

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(vii) Statement of the serving offi c er has to be recorded by the Court a s to the date and mode of publicatio n of the proclamation. (See Birad Dan v. State: 1958 CriLJ 965).

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(viii) The Court issuing the pr o clamation has to make a statemen t in writing in its order that the p roclamation was duly published o n a specified day in a manner specifi e d in section 82(2)(i) of the Cr.P.C., 1 9 73.

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AJAY KUMAR 2025.09.18 14:25 I attest to the accuracy and integrity of this document

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CRM-M-42036-2025 (O&M) 7

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Such statement in writing by t h e Court is declared to be conclu s ive evidence that the requirements o f Section 82 have been complied with and that the proclamation was publis h ed on such day. (See Birad Dan v. St a te: 1958 CriLJ 965). (xi) The conditions specified in section 82(2) of the Cr.P.C., 1973 for the publication of a Proclamation a g ainst an absconder are mandatory. A ny non-compliance therewith cannot be cured as an 'irregularity' and ren d ers the Proclamation and proceedi n gs subsequent thereto a nullity. ( See Devendra Singh Negi alias Debu v. State of U.P. and another: 1994 C r iLJ 1783 and Pal Singh v. The State: 1 955 CriLJ 318). ”

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It is pertinent to mention th a t it is by now a settled principl e of law that b efore issuing a proclamation u nder Section 82 Cr.P.C., the C o urt must rec o rd its satisfaction that the accus e d, against whom the proclamation is sought to be issued, is absconding or concealing himself with inten t to evade arrest. This foundational require m ent is conspicuously absent in the present c a se. A perusal of the impugned o rder dated 15.04.2025 reveals t hat no such s atisfaction was recorded by the Court below, nor was there a ny material t o justify the inference that th e petitioner had absconded or w as deliberat e ly avoiding arrest. On the cont r ary, the stand of the petitioner t hat he was n e ver served with any warrants p r ior to the issuance of proclamation finds sup p ort from the record itself.

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Even otherwise, the relianc e placed by the Court below on the statemen t of the serving official is who l ly misplaced. The official me r ely deposed t hat upon not finding the petitioner at his residence, he pasted o ne copy of t h e process outside the house o f the petitioner, another at a pu b lic place, an d a third on the notice board of the Court. Such steps fall shor t of the mand a tory requirements of Section 8 2(2) Cr.P.C. As laid down in S o nu (supra), t h e proclamation must first be p u blicly read in a conspicuous pl a ce AJAY KUMAR 2025.09.18 14:25 of the to w n or village in which the accus e d ordinarily resides, then affixe d to I attest to the accuracy and integrity of this document

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CRM-M-42036-2025 (O&M) 8

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some co n spicuous part of his house or h o mestead or at a conspicuous pl a ce in the to w n or village, and finally affixed to a conspicuous part of the Co u rthouse. In the present case, the mandator y procedure for publication has not been co m plied with, thereby rendering t h e impugned order unsustainabl e in law.

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The provisions of Sectio n 82 of the Code of Crim i nal Procedur e having serious ramification s qua the right of the accu s ed concerni n g his presence in the criminal t rial proceedings ought not be a nd cannot b e invoked in casual and cava l ier manner. The requirement of recording of satisfaction, that the accus e d has absconded or is concealing himself so that warrant of his arrest ca n not be executed, as embodie d in Section 8 2 of the Code of Criminal P rocedure, is to be scrupulo u sly complied with based on relevant materia l available on record of the cas e in that rega r d. Non-adherence to said requi r ement while declaring the accu s ed as procla i med person vitiates the procla m ation proceedings initiated aga i nst the accus e d.

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Hence, no useful purpose would be served by keeping the criminal p roceedings pending against the petitioner, particularly when the petitione r has already joined the invest i gation and duly cooperated. It is, therefore, an appropriate case for the ex e rcise of powers under Section 5 28 of BNS S /Section 482 of Cr.P.C. and to bring to an end the crim i nal proceedi n gs initiated in the light of the FIR ibid against the petitioner. 12. In view of the above find i ngs, in the entirety of facts a nd circumst a nces of the present case, the p resent petition is allowed and the order dat e d order dated 15.04.2025 (Ann e xure P-6) passed by the Additional AJAY KUMAR 2025.09.18 14:25I attest to the accuracy andSessions J udge, Jind whereby the petitio n er was declared proclaimed per s on integrity of this document

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CRM-M-42036-2025 (O&M) 9

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in Sessio n s Case No.NDPS/21/2022 title d as “State of Haryana vs. Pritam

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etc.” be a ring CNR No.HRJN01001712 2 022 arising out of FIR No. 2 64 dated 10.11.2021 registered under Secti o ns 21(C), 29 of the NDPS Ac t at Police S t ation Garhi, District Jind as well as the other consequen t ial proceedi n gs arising therefrom are quashe d . 13. Pending application(s), if a ny, shall also stand disposed of accordin g ly.

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(SUMEET GOEL) JUDGE

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Septemb e r 18, 2025 Ajay

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Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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AJAY KUMAR 2025.09.18 14:25 I attest to the accuracy and integrity of this document

Zaid Khan v. State of Haryana

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Zaid Khan v. State of Haryana

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