Arshad Alias Dholu Vs State of Haryana

Present petition has been filed u nder Section 482 of the Cr. P.C . seeking qua s hing/ setting aside of the im p ugned order dated 07.12.202 2 (Annexure P-7) passed by learned ACJM, Pal w al and all subsequent proceeding s in pursuant t h ereto, vide which, petitioner was declared as proclaimed person, i n case FIR No. 0 183 dated 29.05.2022, registered under Sections 279, 307, 336, 3 4 of IPC, 1860, Section 25 of the Arms Act, 1959, Sections 3, 13(1), 13(2), 13(3) o f the Haryana G auvansh Sanrakshan and Gausa m vardhan Act, 2015, Section 11 o f the Preventio n of Cruelty to Animals Act, 196 0 (Sections 420, 467, 468, 471 o f IPC, Sections 8, 13, 17 of the Haryana Gauvansh Sanrakshan and Gausamvardha n Act, 2015 an d Sections 59 and 60 of the Prev e ntion of Cruelty to Animals Act , 1960 were a d ded later on), at Police Station Sadar Palwal, Tehsil and Distric t Palwal.

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MAHAVIR SINGH 2026.07.10 12:42 I attest to the accuracy and authenticity of this order/ judgment

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Learned counsel for the petitioner has contended that the impugned order, whereby the petitioner has been declared a proclaimed person, is wholly illegal, arbitrary, and unsustainable in the eyes of law. Learned counsel has submitted that, in fact, the petitioner was not named in the FIR in question and has been nominated solely on the basis of disclosure statement of co-accused, namely, Mubin alias Mubbi. Learned counsel has further submitted that vide order dated 15.07.2022, learned Court below had issued production warrants of the petitioner and other co-accused for 20.08.2022. On 20.08.2022, since production warrants of the petitioner and other co-accused remained unexecuted, therefore, fresh warrants of arrest were issued for 17.09.2022. Learned counsel has asserted that on 17.09.2022, again warrants of arrest remained unexecuted, therefore, fresh warrants of arrest were issued against accused persons for 15.10.2022. Learned counsel has submitted that on 15.10.2022, warrants of arrest of accused persons received back unexecuted, therefore, proclamation against the petitioner and other co-accused was issued for 07.12.2022 and Tamili was directed to appear before the Court below on 01.11.2022 for making statement in respect of due publication of aforesaid proclamation. Learned counsel has submitted that on 01.11.2022, statement of the executing constable was recorded as Ex.PA to Ex.PD and the matter was adjourned to 07.12.2022 awaiting appearance of the accused persons. Learned counsel has submitted that ultimately, vide impugned order dated 07.12.2022, the petitioner and other co-accused were declared as proclaimed persons.

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2.1. Learned counsel has urged that perusal of the statement of executing constable reveals that the proclamation was not read in some conspicuous place where the petitioner was residing. Learned counsel has further submitted that it is specifically provided in Section 82 sub section 2 clause (ii) of Cr. P.C. that the

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MAHAVIR SINGH 2026.07.10 12:42 I attest to the accuracy and authenticity of this order/ judgment

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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, whereas, no such publication was ordered to be effected by the Court below, which is in clear violation of procedure prescribed under law. Learned counsel has further submitted that even the petitioner was declared proclaimed person in completely illegal, whimsical, unlawful, improper and unreasonable way by effecting proclamation at the back of the petitioner without proper effecting notice or summon requiring the petitioner to appear and join proceedings in the FIR in question. Learned counsel has submitted that the impugned order declaring the petitioner as proclaimed person has been passed mechanically without proper compliance of mandatory provisions as enshrined under Section 82 Cr. P.C. Learned counsel has stated that no such satisfaction was recorded by the Court below to the effect that the petitioner had absconded or was deliberately avoiding his arrest.

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2.2. Learned counsel for the petitioner has further submitted that the petitioner had earlier approached the Court below for grant of pre-arrest bail into the FIR in question, however, the same came to be dismissed vide order dated 05.12.2022 (Annexure P-10). Learned counsel has further submitted that soon thereafter, vide impugned order dated 07.12.2022, the petitioner has been declared as proclaimed person, which is in clear violation of procedure enshrined in Section 82 of the Cr. P.C. and, thus, the said impugned order is not tenable in the eyes of law. On the basis of these submissions, grant of petition in hand is entreated for.

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Learned State counsel, while raising submissions in tandem with the status report by way of an affidavit dated 28.03.2023 (already on record) has opposed the present petition. While refuting the case set up by the petitioner, detailed arguments were advanced on merits, contending that the offence alleged

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MAHAVIR SINGH 2026.07.10 12:42 I attest to the accuracy and authenticity of this order/ judgment

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against the petitioner is serious in nature. Furthermore, it has been submitted that the petitioner failed to cause appearance before the Court below. It has been further submitted that warrants of arrest issued against the petitioner remained unexecuted, therefore, learned Court below was constrained to issue proclamation against the petitioner. Learned State counsel has further asserted that the statement of the serving official was recorded and thereafter, the petitioner was declared as proclaimed person, vide the impugned order. It has been submitted that the petitioner was declared as a proclaimed person after following the procedure as laid-down under Section 82 of the Cr. P.C., 1973 in letter and spirit and no discrepancy whatsoever is forthcoming from the records of the case. Accordingly, dismissal of the instant petition has been prayed for.

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I have heard the learned counsel for the rival parties and carefully perused the record of the case.

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The law is well settled that no person can be declared a proclaimed offender/person unless the procedure prescribed under Section 82 of the Code of Criminal Procedure, 1973 is strictly and meticulously adhered to. It is trite that the provisions of Section 82 Cr.P.C. are mandatory in nature, and any non-compliance thereof vitiates the entire proceedings. Furthermore, Section 82(1) of the Cr. P.C. clearly provides that before issuing a proclamation requiring a person to appear, the Court must have reason to believe that such person has absconded or is concealing himself so that the warrant cannot be executed. Further, the proclamation must specify a date not less than 30 days from the date of publication for the accused to appear before the Court.

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Perusal of the record shows that warrants of arrest issued against the petitioner remained unexecuted. Thereafter, vide order dated 15.10.2022, learned Court below issued proclamation for 07.12.2022 and Tamili was directed to appear

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MAHAVIR SINGH 2026.07.10 12:42 I attest to the accuracy and authenticity of this order/ judgment

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before the Court below on 01.11.2022. It has been pleaded that on 01.11.2022, statement of the executing constable was recorded as Ex.PA to Ex.PD and the matter was adjourned to 07.12.2022 awaiting appearance of the accused persons. Thereafter, vide impugned order dated 07.12.2022, the petitioner and other coaccused were declared as proclaimed persons. Perusal of statement of the executing constable reveals that the proclamation in question was not read in some conspicuous place where the petitioner was residing, in accordance with the procedure under Section 82 of the Cr. P.C. It has been pleaded by the learned counsel for the petitioner that even no effort was made by the Court below to direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which petitioner ordinarily resides, which is also a procedure enshrined under Section 82 of the Cr. P.C. The law is well-settled that once warrants of arrest remained unexecuted and there is no satisfaction recorded by the learned trial Court with regard to absconding and concealment, the issuance of proclamation, straightway in itself is bad in law. Failure to adhere to the provisions of Section 82 of the Cr. P.C. before declaring the petitioner as proclaimed person vitiates the subsequent order declaring the accused as a proclaimed person.

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This Court finds that the course adopted by the Court below is in clear contravention of and antithetical to the provisions of Section 82 of the Code of Criminal Procedure, 1973. The Court below has committed a manifest illegality by issuing and acting upon the proclamation without ensuring compliance with the mandatory statutory requirements. The learned Court below, while declaring the petitioner as a proclaimed person, failed to record the requisite judicial satisfaction regarding due execution of the proclamation and proceeded in a mechanical and perfunctory manner, rendering the impugned order legally unsustainable. Such an

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MAHAVIR SINGH 2026.07.10 12:42 I attest to the accuracy and authenticity of this order/ judgment

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order being violative of mandatory provisions of law, cannot be sustained. Further,

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Section 82 of the Criminal Procedure Code, 1973 reads as under:

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“82. Proclamation for person absconding. - (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 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 homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

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

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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, 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.

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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 they apply to the proclamation published under sub-section (1).] ”

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A Coordinate Bench of this Court while dealing with invocation of

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the provision of Section 82 of the Code of Criminal Procedure, against an accused

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in the case of ‘ Sonu v. State of Haryana, 2021(1) RCR (Criminal) 319’ , held as under:

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“ 9. The essential requirements of section 82 of the Cr.P.C., 1973 for issuance and publication of proclamation against an absconder and declaring him as proclaimed person/offender may be summarized as under:-

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(i) Prior issuance of warrant of arrest by the Court is sine qua non for issuance and publication of the proclamation and the Court has to first issue warrant of arrest against the person concerned. (See Rohit Kumar v. State of Delhi: 2008 Crl. J. 2561).

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(ii) There must be a report before the Court that the person against whom warrant was issued had absconded or had been concealing himself so that the warrant of arrest could not be executed against him. However, the Court is not bound to take evidence in this regard before issuing a Proclamation under section 82(1) of the Cr.P.C., 1973. (See Rohit Kumar v. State of Delhi : 2008 Crl. J. 2561).

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(iii) The Court cannot issue the Proclamation as a matter of course because the Police is asking for it. The Court must be prima facie satisfied that the person has absconded or is concealing himself so that the warrant of arrest, previously

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issued, cannot be executed, despite reasonable diligence. (See BishundayalMahton and others v. Emperor : AIR 1943 Patna 366 and Devender Singh Negi v. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783).

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(iv) The requisite date and place for appearance must be specified in the proclamation requiring such person to appear on such date at the specified place. Such date must not be less than 30 clear days from the date of issuance and publication of the proclamation. (See Gurappa Gugal and others v. State of Mysore : 1969 CriLJ 826 and Shokat Ali v. State of Haryna : 2020(2) RCR (CRIMINAL) 339).

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(v) Where the period between issuance and publication of the proclamation and the specified date of hearing is less than thirty days, the accused cannot be declared a proclaimed person/offender and the proclamation has to be issued and published again. (See Dilbagh Singh v. State of Punjab (P&H) : 2015 (8) RCR (CRIMINAL) 166 and Ashok Kumar v. State of Haryana and another : 2013 (4) RCR (CRIMINAL) 550)

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(vi) The Proclamation has to be published in the manner laid down in section 82(2) of the Cr.P.C., 1973. For publication the proclamation has to be first publicly read in some conspicuous place of the town or village in which the accused ordinarily resides; then the same has to be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides or to some conspicuous place of such town or village and thereafter a copy of the proclamation has to be affixed to some conspicuous part of the Court-house. The three sub-clauses (a)- (c) in section 82 (2)(i) of the Cr.P.C., 1973 are conjunctive and not disjunctive, which means that there would be no valid publication of the proclamation unless all the three modes of publication are proved. (See Pawan Kumar Gupta v. The State of W.B. : 1973 CriLJ 1368). Where the Court so orders a copy of the proclamation has to be additionally published in a daily newspaper circulating in the place in which the accused ordinarily resides. Advisably, proclamation has to be issued with four copies so that one each of the three copies of the proclamation may be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides, to some conspicuous place of such town or village and to some conspicuous part of the Courthouse and report regarding publication may be made on the fourth copy of the proclamation. Additional copy will be required where the proclamation is also required to be published in the newspaper.

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(vii) Statement of the serving officer has to be recorded by the Court as to the date and mode of publication of the proclamation. (See Birad Dan v. State: 1958 CriLJ 965).

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(viii) The Court issuing the proclamation has to make a statement in writing in its order that the proclamation was duly published on a specified day in a manner specified in section 82(2)(i) of the Cr.P.C., 1973. Such statement in writing by the Court is declared to be conclusive evidence that the requirements of Section 82 have been complied with and that the proclamation was published on such day. (See Birad Dan v. State: 1958 CriLJ 965).

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(xi) The conditions specified in section 82(2) of the Cr.P.C., 1973 for the publication of a Proclamation against an absconder are mandatory. Any noncompliance therewith cannot be cured as an 'irregularity' and renders the Proclamation and proceedings subsequent thereto a nullity. (See Devendra Singh Negi alias Debu v. State of U.P. and another: 1994 CriLJ 1783 and Pal Singh v. The State: 1955 CriLJ 318). ”

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It is by now a settled principle of law that prior to issuing a proclamation under Section 82 Cr. P.C., the Court is required to record its satisfaction that the accused, against whom such proclamation is sought, is absconding or is concealing himself/ herself with the intention to evade arrest. This foundational and jurisdictional requirement is conspicuously absent in the present

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MAHAVIR SINGH 2026.07.10 12:42 I attest to the accuracy and authenticity of this order/ judgment

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case. A perusal of the impugned order dated 07.12.2022 reveals that no such satisfaction has been recorded by the Court below, nor does the record disclose any material which could justify an inference that the petitioner had absconded or was deliberately avoiding his appearance before the Court.

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The provisions of Section 82 of the Code of Criminal Procedure, having serious civil and criminal ramifications qua the rights of an accused, particularly affecting his liberty and participation in trial proceedings, cannot be invoked in a casual or cavalier manner. The mandatory requirement of recording satisfaction that the accused has absconded or is concealing himself/ herself so that the warrant of arrest cannot be executed, as embodied under Section 82 Cr.P.C., must be scrupulously complied with on the basis of cogent and relevant material available on record. Any non-adherence to this statutory mandate while declaring an accused as a proclaimed offender/person vitiates the proclamation proceedings in their entirety.

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In the aforesaid backdrop, this Court is of the considered opinion that no useful purpose would be served by permitting the criminal proceedings to continue against the petitioner, which are founded upon an illegal and procedurally flawed proclamation. It is, therefore, a fit and appropriate case for the exercise of inherent powers under Section 528 of the BNSS / Section 482 of the Cr.P.C., so as to prevent abuse of the process of law and to secure the ends of justice.

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In view of the above findings, and considering the entirety of the facts and circumstances of the present case, the present petition is allowed . Consequently, the impugned order dated 07.12.2022 passed by the learned ACJM, Palwal, whereby, the petitioner has been declared as proclaimed person, along with subsequent proceedings arising therefrom, are hereby quashed qua the petitioner.

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There is no gainsaying that observations made in the instant order are limited to the issue in lis, namely, the petitioner being declared as Proclaimed person, and shall not be construed as observations on the merits of the case.

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