Rajveer Singh Alias Rajbir Singh Alias Raja Vs State of Punjab and Another

The order dated 02.07.2014 (Annexure P-12), hereinafter b e ing referred to as ‘impugned order’, passed b y the learned Additional Sessions Judge Ferozepur, hereinafter being ref e rred to as “trial Court”, is u n der challenge in the present petition filed u n der Section 528 of the Bhara t iya Nagarik S uraksha Sanhita, 2023, hereina f ter referred to as “BNSS” only.

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By virtue of abovementio n ed order, the learned trial Court, while holding a trial for the commis s ion of offence punishable u n der Sections 3 07/34 of Indian Penal Code a n d Sections 25/27/30 of Arms A ct, declared t he petitioner to be a proclaimed person. 4. In nut-shell, the facts emerging from record are that the petitione r was facing a trial for the com m ission of offence punishable u n der Sections 307/34 of IPC and Sections 2 5/27/30 of Arms Act and in the GAURAV THAKUR 2026.02.19 15:32 I attest to the accuracy and integrity of this document

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aboveme n tioned case, he was on bail, bu t later on when he could not ap p ear before t h e learned trial Court on 01 . 05.2013, the learned trial C o urt cancelled the bail of the petitioner and i s sued warrant of arrest. Therea f ter, on vario u s occasions, non-bailable warra n ts were issued, however, the s a me could no t be executed as the petitioner had left the country for a for e ign destinati o n.

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Subsequently, vide order d a ted 05.05.2014, the learned t rial Court iss u ed proclamation against the p e titioner for 20.05.2014. Therea f ter, vide ord e r dated 20.05.2014, proclam a tion issued against the petiti o ner received b ack duly effected and the learn e d trial Court adjourned the case for 03.06.20 1 4 for recording of statement of executing Constable. Subseque n tly vide orde r dated 03.06.2014, statement o f executing Constable was recor d ed and the c ase was adjourned for 02.07. 2 014 for appearance of petitio n er. Thereafter, by virtue of impugned or d er, the petitioner was declare d a proclaim e d offender.

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Notice of motion .

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Since advance notice has a l ready been served upon the State, Mr. Ekla v ya Darshi, Deputy Advocate G e neral, Punjab appears on behal f of responde n t-State. Hence service of notic e upon the State is hereby dispe n sed with.

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Heard.

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It has been contended on b e half of petitioner that the lear n ed trial Cou r t has committed an error, whe n without following due proces s , it declared the petitioner to be a procla i med person. It has been fur t her

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contende d by learned counsel for the p etitioner that in the present c a se, proclama t ion issued against the petitione r is defective in view of the fact t hat the procl a mation for 20.05.2014 was is s ued by the learned trial Court on 05.05.20 1 4. As per learned counsel for t h e petitioner, the period of 30 d ays prescribe d under Section 82 of Cr.P.C. w a s not afforded to the petitioner, for appearan c e in the Court. It has also been pointed out by learned counsel for the petiti o ner that in this case, no fres h proclamation was issued by the learned t r ial Court against the petitioner and only on the basis of previous proclama t ion, which was issued on 05.05.2014, the petitioner has been declared p roclaimed offender.

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In addition to above, it has also been alleged by the petiti o ner that beca u se of defective procedure ado p ted by the learned trial Court, in declaring the petitioner to be a proclaim e d offender, the impugned ord e r is liable to b e set aside.

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Per contra , the learned S t ate Counsel

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The record has been perused carefully.

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A perusal of the record sho w s that the petitioner has place d on record th e copy of statement of the Ex e cuting Constable recorded by the learned t r ial Court, before passing the or d er of declaring the petitioner t o be a proclai m ed offender. The statement of E xecuting Constable, namely Ra t tan Singh dated 03.06.2014 reads as under:-

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“In the present case I was m arked proclamation pertainin g to Rajbir Singh @Raja son of B aldev Singh r/o Itta Wali, PS G h all Khurd. The said proclamati o n is Ex.PA. It was marked to m e by SHO on 18.05.2014. On 1 9 .05.2014, I went to the concer n ed area and pasted one copy o f proclamation on the main gat e of the house of Rajbir Singh, o n e copy was pasted at the com m on place and one copy was giv e n to Granthi of Gurdawara S a hib and was deputed to make a n nouncement on the speaker. Re p ort in this regard is Ex.PB. Proc l amation is Ex.PA.’

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A perusal of record further s h ows:-

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( a) that the learned trial Cou r t declared the petitioner to b e a proclaimed offender on the b asis of affixation of proclama t ion issued for appearance on 20 . 05.2014, whereas as per laid d o wn procedure, if the stateme n t of Executing Constable w as recorded on 03.06.2014 an d on that day the accused was not declared a proclaimed offe n der, and case was adjourned for next date, i.e. for 02.07.2014, a fresh proclamation for 02.07.2014 should have bee n issued;

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( b) that from the date of affixati o n of proclamation at least 30 d a ys’ time should have been af fo rded to the petitioner to ap p ear before the Court, but in t h e instant case, the date fixed for appearance before the Cour t was 20.05.2014 and as per re p ort of serving Constable, th e proclamation was affixed on 19.05.2014; and

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( c) that the statement of Execu t ing Constable Rattan Singh d a ted 19.05.2014 shows that h e had not publicly read the abovementioned proclamati o n.

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A bare perusal of the a b ovementioned statement of the Executin g Constable shows that the abo v e-named Executing Constable h ad not publ i cly read the contents of th e proclamation. The order d a ted 02.07.20 1 4 further shows that merely on the basis of abovementio n ed statemen t of the Executing Constable, t he petitioner has been declared a proclaim e d person.

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With regard to the above-m e ntioned procedure adopted by the learned t r ial Court, it is relevant to ment i on that Section 82(2) of CrPC l ays down th a t following steps are necessa r y to be taken before declarin g a person to be a proclaimed person:-

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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 p l ace of the town o r village in which such pe rs on ordinarily resid e s;

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(b) it shall be affix e d to some conspicuous part o f the house or ho m estead in which such pe rs on ordinarily resid e s or to some conspicuous plac e of such town or vi l lage;

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(c) a copy thereof s h all be affixed to some conspicuous part of the Cou r t-house;

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(ii) the Court may a lso, if it thinks fit, direct a cop y of the proclamati o n to be published in a d a ily newspaper circ u lating in the place in which s u ch person ordinari l y resides.”

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With regard to mandatory n a ture of abovementioned proced u re,

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it has b e en repeatedly observed by t h is Court, that the compliance of aboveme n tioned provisions of Section 82(2) of CrPC is mandatory in nat u re.

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It has als o been held that in case the above process is not followed in l e tter and spiri t , the impugned order declaring a person to be a proclai m ed offender/ p roclaimed person is defective.

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In this regard in the case of ‘Tirlok Chand Vs. State of Hary a na’ 2023(2) L aw Herald 1545, this High Cou r t observed that if a proclamatio n is issued fo r appearance of an accused on a fixed date before the Court, an d on that date he is not declared proclaimed person, for subsequent date f r esh proclama t ion should be issued. Similar v iew has been taken in the case s of ‘Jarnail S ingh v. State of Punjab & A nother’ (CRM-M-27944 of 2 0 24, decided o n 04.09.2024) and ‘Gagandeep S ingh v. State of Punjab’ (CRM - M- 50704- 2 0 24, decided on 28.11.2024).

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With regard to failure of learned trial Court to give 30 d a ys’ time to t h e accused to appear before the C ourt after proclamation, this C o urt in the ca s e of ‘Avtar Singh Vs. State of P unjab and Anr.’ in CRM-M-18662017 has observed as under:-

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“The above quoted prov i sion is clear that through the proclamation made prior t o declaration of a person a s a proclaimed offender, he sh o uld be given not less than thirty days from the date of its pr o clamation to appear at a speci f ied place and a specified time.

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In the case in hand, thirty d a ys were not given to the petiti o ner to appear before the Trial C o urt as the proclamation was m a de on 13.05.2011 requiring hi m to appear before the Trial C o urt on 14.05.2011. Thus, the p roclamation and the subseq u ent order dated 03.09.2011 (An n exure P-2) declaring the petiti o ner to be a proclaimed offender d o not confirm with the mandat e of Section 82 (1) of the Code.

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Taking into consideration the cumulative effect of the aboveme n tioned observations, as ther e was a defect in affixation of proclama t ion, i.e. non-reading of summo n s in public place, and not affor d ing 30 days’ p eriod to the petitioner to appea r before the Court after affixatio n of proclama t ion, the order dated 02.07.2014 passed by the learned trial Cou r t is hereby h e ld to be perverse, defective an d unsustainable in the eyes of law. Resultant l y, the present petition is hereb y allowed and the impugned o r der dated 02. 0 7.2014 passed by the learned tr i al Court is hereby quashed. 21. It is however made clear tha t this order is with regard to leg a lity of procla m ation only. Since the petition e r had jumped the bail and his b ail had bee n cancelled and bonds were f o rfeited to the State, the orde r of learned trial Court with regard to cancell a tion of bail and issuance of war r ant of arrest a gainst the petitioner shall rem a in intact, and therefore, in case the petitione r surrenders before the learned trial Court within a period of t wo weeks fr o m today, the learned trial C o urt will be at liberty to take the petitione r into custody or proceed un d er Section 491 of the Bhara t iya Nagarik S uraksha Sanhita, 2023 (erstwh i le Section 446 Cr.P.C), as per l aw. However , in case the petitioner surrende r s and files an application for b ail, the same b e disposed of expeditiously, an d in any case not beyond the pe r iod of three d ays.

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Gaurav Thakur W hether speaking/reasoned :Y e s/No W hether reportable : Ye s/No

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Rajveer Singh Alias Rajbir Singh Alias Raja v. State of Punjab and Another

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Rajveer Singh Alias Rajbir Singh Alias Raja v. State of Punjab and Another

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