Harchand Singh Vs State of Punjab

Petitioner-Harchand Singh, aged 49 years, has filed the instant petition under Section 528 of BNSS, for quashing of impugned order dated 17.09.2010 (Annexure P-1), passed by the Court of Judicial Magistrate First Class, Gurdaspur, in case FIR No.75, dated 05.05.2010, under Section 420 of the Indian Penal Code, 1860, registered at P.S. Dhariwal, District Gurdaspur, whereby petitioner had been declared as "Proclaimed Offender". 2. Broadly submitting that petitioner had no knowledge regarding the registration of the FIR, learned counsel explains that FIR against the petitioner and his mother was registered on 05.05.2010 on the allegation that they had promised to send the complainant abroad after receiving an amount of Rs.8,00,000/- (Rs.5,00,000/- + Rs.3,00,000/-). However, it is submitted that after visiting India, the petitioner left for Bahrain, where he has been working as a minibus Driver. In this regard, learned counsel has referred to the copy of the petitioner's passport bearing visa endorsements showing his arrival in India and subsequent departure for Bahrain.

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Learned counsel further submits that, after registration of the FIR, petitioner was never informed about the criminal proceedings as he was not residing in India. On account of his non-appearance before the trial Court, non-bailable warrants were issued on 22.05.2010. The report received in execution of the said warrants recording that petitioner was not present at his residence and had been residing in Bahrain for the last one year, and that there was no one available to acknowledge as to when he would return. Thereafter, proclamation proceedings were initiated, and the trial Court adjourned the matter to 20.08.2010 for further proceedings. Ultimately, the petitioner was declared a Proclaimed Offender vide order dated 17.09.2010 on the basis of the proclamation report, which recorded that he was residing abroad. The said fact was also confirmed by the Chowkidar/Watchman, namely, Darshan Singh, on 13.08.2010.

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Referring to the order dated 17.09.2010, learned counsel further submits that trial Court failed to take note of the fact that the petitioner had been residing outside India even prior to the registration of the FIR. Despite this, he was declared a Proclaimed Offender, whereas, in terms of the statutory provisions, he could at the most have been declared a Proclaimed Person. It is further submitted that neither any report nor any finding was recorded by the trial Court to the effect that the petitioner was intentionally evading arrest or deliberately avoiding the Court proceedings despite having knowledge of the criminal case.

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Learned counsel further places reliance upon the judgments of the Hon'ble Supreme Court in State of Madhya Pradesh v. Pradeep

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Sharma and Lavesh v. State (NCT of Delhi), 2014 (2) SCC 171 to contend that the jurisdiction under Section 82 Cr.P.C. can be exercised only after the Court records its satisfaction, on the basis of cogent material, that the accused has absconded or is concealing himself with the intention of avoiding execution of the warrant. Merely because an accused is not available at his ordinary place of residence or is residing abroad would not, by itself, justify invocation of proclamation proceedings unless the mandatory requirements prescribed under Section 82 Cr.P.C. have been strictly complied with.

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Thus, the impugned order itself is legally unsustainable. Once service was never duly effected and there was no satisfaction recorded by the trial Court regarding intentional evasion by the petitioner, the order declaring him a Proclaimed Offender, instead of a Proclaimed Person, cannot be sustained in the eyes of law.

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On the other hand, learned State counsel appearing on advance notice, opposes the request of the petitioner by submitting that petitioner does not deserve any sympathy, because, he knowingly evade the proceedings before the trial Court. Learned State counsel further submits that looking at his behaviour, there is no surety that in future, petitioner would not be absent for the purpose of delaying the trial.

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In number of cases, wherein, accused stopped appearing in criminal cases, the Courts are compelled to declare accused as ‘Proclaimed Person/Proclaimed Offender’. After examining the facts, this Court has formulated a uniform method to ensure the presence of accused before the

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concerned Court, to enable it to proceed further instead of delaying the proceedings by awaiting the presence of accused.

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Intentional or unintentional default of the accused can be dealt with by examining the facts from case to case involved, and where it is realised that absence or prolonged absence of such accused is intentional to evade the process of law, he/she can be penalized examining the nature of crime in which he is facing the proceedings and thereupon by imposing some cost amount subject to his/her capacity to pay.

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Primary object of every Court is only to examine the commission of crime in question before it viz-a-viz the person/accused, who is subjected to such proceedings, and if possible justice be imparted at the earliest without unnecessary delay. It is not expected that undue time would be devoted in securing the presence of absconded accused and also to waste energy by enforcing the special mechanism to arrest such accused.

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Considering all such aspects, this Court in the case of Ashish Kumar Honda @ Ashish Handa Vs. State of Punjab, 2022 (4) RCR (criminal) 765; Law Finder Doc Id # 20238111 considered similar plea of appearance, expressed at the instance of the accused, who failed to appear before the Court at appropriate time, and observed that:

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“paramount consideration of the Court is to secure presence of accused on each and every date for speeding up the trial for its final conclusion. Already Courts are flooded with so much litigation, resulting in slow pace of work, because of more than one reason. The required energy and manpower be used for expediting the proceedings of the Court, instead of running after the accused persons to get hold of them .”

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Again, this Court has considered the aforementioned similar plea in case Veena @ Veena Devi v. State of Punjab (CRM-M-2206-2025, decided on 16.01.2025 .

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I have considered the submissions of both the sides and examined the relevant material available on record. The petitioner has remiss in appearing before the Court due the reasons mentioned here-above, and consequently, impugned order (P-1) declaring the petitioner as ‘proclaimed person’ has been passed against him. It also cannot be left unnoticed that as and when the petitioner came to know about passing of the impugned order, the petitioner has immediately moved the present petition, showing his inclination to submit himself before the trial Court.

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In totality of circumstances, I am of the view that the petitioner can be given one chance to appear before the trial Court, so that proceedings may restart and continue in smooth manner. Accordingly, plea of the petitioner is accepted. Impugned order dated 17.09.2010 (P-1) is set aside to the extent of declaring the petitioner as ‘proclaimed person’, and he is directed to be released on bail, in the eventuality of surrender by him before the trial Court on or before 31.07.2026 .

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The petitioner shall also furnish fresh bail bonds/surety bonds to the satisfaction of the trial Court. Besides, petitioner would also submit specific undertaking/affidavit that he will keep appearing during the proceedings of the trial in future and the proceedings would not be delayed because of his conduct.

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However, this order shall be subject to the payment of Rs.10,000/- as costs, to be deposited by the petitioner in an Old Age Home

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of the area, as may be decided by the learned Trial Court. The Trial Court shall also specify the time frame within which such costs will be required to be deposited, but not more than two weeks, failing which this order would not be of any advantage to the petitioner.

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