TMI Blog2012 (10) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... er :- Section 82 (4): Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 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, 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. In the present case also the petitioner having been declared a proclaimed offender in FIR No. 341 dated December 27, 2010 under Sections 420, 467, 468, 471, 120B IPC, registered at Police Station DLF-II, Gurgaon, District Gurgaon, has challenged the order dated October 31, 2011, passed by the Court of CJM, Gurgaon, declaring the petitioner a proclaimed offender. The main' ground of challenge is that the said order has been passed in violation of the provisions of Section 82(4) Cr.P.C., as the offences for which the petitioner is sought to be prosecuted and punished, do not fall under the list of offences which are specified in Section 82 (4) Cr.P.C. Petitioner claims that the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of this Court had set aside an order declaring petitioner as a proclaimed offender as the sections in which the petitioner was involved did not fall under Section 82(4) Cr.P.C., however, a direction was given to the petitioner to appear before the Magistrate on a particular date with a direction that he would be released on bail. (iv) In Sukhwinder Singh v. State of Punjab, Crl. Misc. No. M-18469 of 2011, this Court had set aside an order declaring an accused as proclaimed offender on the ground that it was contrary to the provisions of Section 82 (4) Cr.P.C. (v) In Baldev Singh v. State of Punjab, Crl. Misc. No. M-6301 of 2011, again this Court had set aside an order passed by Judicial Magistrate declaring the petitioner as a proclaimed offender, as it was violative of Section 82(4) Cr.P.C. as the sections in which the accused had been declared proclaimed offender were not mentioned in Section 82(4) Cr.P.C. (vi) In Balihar Dhami and another v. State of Punjab and another, Crl. Misc. No. M-7249 of 2011, decided on March 9, 2011 by this Court, the order declaring the petitioner a proclaimed offender was set aside as it was violative of provisions of Section 82(4)' Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was observed as follows:- Legalese and logomachy have the genius to inject mystique into common words, alienating the laity in effect from the rule of law. 5. The provisions of Section 82(4) Cr.P.C. which were incorporated vide amendment Act No. 25 of 2005, cannot be appreciated by construing the added sub-section (4) in isolation, but the said provision has to be read alongwith the other Sections of IPC which have been incorporated by the same amendment Act. Section 174A and Section 229 A in IPC were also incorporated by the said Act No. 25 of 2005 by Section 4 by notification dated June 21,2006 which became effective from June 23,2006. The first schedule of Cr.P.C. was also amended by incorporating new entries by Section 42 of the Act 25 of 2005. It is necessary for the fair adjudication of the present case, to refer to the scheme of Criminal Procedure Code and few provisions of IPC. The provisions existing prior to the amendment are also required to be construed to determine whether the subsection (4) of Section 82 Cr.P.C. is meant to provide a relaxation to the offenders not falling in the ambit of said provision from the evil consequences attached to a proclaimed off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he examination of witnesses in his presence; right of an accused to keep silence; right of an accused to get the copy of the statements of the prosecution witnesses and the production of defence; entitlement of all the documents and statements; right of getting bail during pre-trial or pending trial and post conviction pending appeal in certain cases; right of an accused against double jeopardy; right of an accused to get an opportunity to submit his case before framing of charges against him; right of an accused not to suffer imprisonment for a period longer than the maximum; right of an accused not to be tried beyond the period of limitation; right of an accused to be heard on question of sentence in warrant cases; right of an accused to live with human dignity as per provisions of Article 21 of the Constitution of India; right of speedy trial; right of an accused to receive legal aid; and right of an accused to claim identification. COMPELLING THE PRESENCE OF ACCUSED AT THE TRIAL AND RELEVANT PROVISIONS OF LAW :- 7. All the privileges of fair trial can be used by an accused only after he puts in appearance before the Court of law. Enforcement of law on one hand and prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess while taking cognizance of an offence by issuing summons or warrants, as the case may be. Section 87 Cr.P.C. enables a Court to issue warrants in lieu of or in addition to summons in certain circumstances after recording reasons for doing so, Wide power has been given to the Courts for even dispensing with the personal appearance of an accused. In this context, a reference can be made to Sections 205, 273 and 317 Cr.P.C. Section 299 Cr.P.C. enables a Court to record the evidence in absence of an accused, if it is proved that an` accused person is absconding and that there is no immediate prospect of arresting him. 9. Arrest is considered to be most effective method of securing the attendance of accused during trial, though in some cases it is not desirable to use it in all cases. A warrant of arrest is a written order issued by a Magistrate addressed to a police officer or some other person specially named and commanding him to arrest the body of the accused person named in it. Section 70 Cr.P.C. deals with the form of warrant arrest and duration. Section 71 deals with power to direct security to be taken, Sections 72 and 73 Cr.P.C. deal with Mode of directing a warrant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may posses respecting (a) The permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village; (b) The resort to any place within, or the passage through such village any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender; (c) The Commission of, or intention to commit, in or near such village any, non-bailable offence or any offence punishable under section 143, section 144, section 145, section 147 or section 148 of the Indian Penal Code (45 of 1860); (d) The occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a. death has occurred or the disappearance from such village of any; person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person; (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking 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 specific place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows :- (i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (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; (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. (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 evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used and compel him to appear before the Court, in case he wants that he should not be deprived of his property. Section 86 Cr.P.C. provides for an appeal against an order rejecting the application for restoration of attached property. 13. The term 'absconding' though not defined as per Statute but in Jayendra Vishnu Thakur v. State of Maharashtra and another, (2009) 7 SCC 104, it has been defined on the basis of dictionary meanings that the primary meaning of the word is, to hide . It means to depart secretly or suddenly, especially to avoid arrest, prosecution or service of process. A Court is required to exhibit total application of mind to arrive at a definite finding regarding an accused absconding . 14. The abovesaid provisions indicate that objective of the Code is to secure the presence of the accused. A person who avoids summons, warrants or proclamation, can be punished for offence under Section 174 IPC which already existed in the Code providing a simple imprisonment for a term which may extend to six months or a fine which may extend to one thousand rupees or with both. Section 174 IPC as already existing prior to the incorporation of Section 174A IPC, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a term which may extend to one year, or with fine, or with both. Explanation.-The punishment under this section is-(a) in addition to the punishment to' which the offender would be liable on a conviction for the offence with which he has been charged-; and (b) without prejudice to the power of the Court to order forfeiture of the bond. 15. It is further important to refer to Section 22, of Act No. 25 of 2005 which had made addition in Schedule I making the offence under Section 174A IPC cognizable and non-bailable. Relevant part of Amended Schedule I is reproduced as under:- Section Offence Punishment Cognizable or noncognizable Bailable or nonbailable. By what court triable. 1 2 3 4 5 6 174A. Failure to appear at specified place and specified time as required by a proclamation published under sub-section (1) of Section 82 of this Code. Imprisonment for 3 years, or with fine, or with both Cogniz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 195 (1) (a) (i) except on the complaint in writing by a Court. 17. Vide the amendment by Act No. 25 of 2005, after Section 174 IPC, another Section 174A IPC and another Section 229A IPC was incorporated vide Sections 44 (b) and 44 (c) respectively w.e.f. June 23, 2006, simultaneously also adding Section 82 (4) and (5) Cr.P.C. vide Section 12 of amendment Act No. 25 of 2005. Section 12 of Act No. 25 of 2005 dealing with amendment of Section 82 Cr.P.C. has already been reproduced in first para of this judgment. 18. The provisions of Section 82(4) and (5) Cr.P.C. if read in isolation and construed literally, tend to give a meaning that it is only when a-proclamation under Section 82(1) Cr.P.C. in respect of a person accused of offences specified in Section 82(4) Cr.P.C. stands issued and that accused fails to appear at a specified place and time required by proclamation, the Court may pronounce him a proclaimed offender and make a declaration to that effect. Section 82 (5) Cr.P.C. which has been incorporated shows that the declaration which is made by the Court under Section 82(4) Cr.P.C. would be governed by the provisions of sub-sections (2) and (3) of Section 82 Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng graver punishment for non-appearance pursuant to publication under Section 82 (1) and Section Cr.P.C. and violating bail bonds, respectively. In order to enforce the same, the legislature had to amend the procedural law in consonance with the classification of offences in Section 174-A IPC. It is a settled principle of law that in the absence of procedural law, the substantive criminal law could be almost worthless. (Refer to 37th report of Law Commission). Without the enforcement mechanism, the threat of punishment held out to the law breakers by the substantive criminal law would remain empty formality in books. In order to implement the substantive offence under Section 174A IPC Part II, the addition under Section and (5) Cr.P.C. was required to be made. HARMONIOUS CONSTRUCTION OF SECTION Cr.P.C. WITH SECTION 174A (I) IPC and 174A (II) IPC: 20. When a question arises as to the meaning of a certain provision' in a statute, it is not only legitimate but proper to read that provision in context to the following:- (i) the statue as a whole; (ii) the previous State of the law; (iii) other statues in perimateria; (iv) the general scope of the statue; and (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... useless lumber is not harmonious construction. (5) To harmonise is not to destroy any statutory provision or to render it otiose. 21. In Tehsildar Singh v. State of U.P., 1997 (2) R.C.R. (Civil) 8; AIR 1959 SC 1012, it was observed that the principle that the statue must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one of the parts is a saving clause or a proviso. In Faqir Chand v. Shree Chand Deo Sugar Mills Ltd., AIR 1962 SC 1543 and Mohan Singh Singhania v. Union of India, 1992 (1) S.C.T. 546 : AIR 1992 SC 1, the said rule of construction was reiterated by observing that an elementary rule of construction of a section is to be made of all the parts together and it is not permissible to omit any part of it; the whole section should and must be read together. Sub-sections in a section must be read as parts of an integral whole and as being interdependent, each portion throwing light, if need be, on the rest. General Clauses Act 1897, Section 3 (61) defines sub-section' as A section of the Section in which the word occurs. 22. In Seaford Court Estates v. Ashu, (1949) 2 All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. The said rule was followed in Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 and in number of other cases. The recent one in National Insurance Co, Ltd v. Baljit Kaur, 2004 (1) R.C.R. (Civil) 722 : (2004) 2 SCC 1: AIR 2004 SC 1340. 25. The application of abovesaid rules of interpretation requires reference to Sections 174, 174A IPC and 229 A IPC and the procedural law in Section 40, existing procedures under Section 38, Section 40, Section 41 (c) and Section 82 (1) (2) and (3) and Section 83 Cr.P.C. for fair construction of the amendment of Section 82(4) and (5) Cr.P.C. 26. A judicial notice of the fact can be taken from a number of petitions challenging orders of declaration of proclaimed offenders that a large number of persons evade their appearance before the Courts. The scheme of Criminal Procedure Code and substantive laws makes an endeavour to compel the appearance of the accused person, by adopting the various provisions of summons, warrants, proclamation, bail bonds, provided in Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, the Court concerned was entitled to publish a written proclamation requiring him to appear at a specific place and a specific time within a period of 30 days of the date of publication. The mode of publication is prescribed in Section 82 (2) Cr.P.C. After the proclamation, if an accused did not appear, two arrangements were provided i.e. for non-appearance pursuant to summons issued by any public servant, sentence of simple imprisonment of one month or fine of ₹ 500/- but if the summons, notice or order of proclamation was issued by a Court of justice, the punishment had been provided for a simple imprisonment for six months or a fine of ₹ 1000/-. Under Section 174A IPC, two types of punishments have been prescribed. As per para 1 of Section 174A IPC, if a person fails to appear at a specified place and specified time as required by proclamation published under Section 82 (I) Cr.P.C., he would be punishable with imprisonment for a term of 3, years or with a fine or with both but where a declaration has been made for specific offences reflected in Section 82(4) Cr.P.C. pronouncing him a proclaimed offender, an accused shall be punished with an imprisonment for a ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rigour of Section 174A IPC to the accused persons falling-under Section 82(4) Cr.P.C. as has been sought to be interpreted by counsel for the petitioner. If Section 82(4) Cr.P.C. is read alongwith Section 174A Part I and Part II of IPC, it makes it clear that act of non-appearance of an accused, of all offences, except the offences which are mentioned in Section 82(4) Cr.P.C., pursuant to a proclamation, at a particular place, would be punishable for a period of 3 years RI but an act of non-appearance of accused person who falls under Section 82(4) Cr.P.C. would be liable for stringent punishment of rigorous imprisonment of 7 years under Section 174A Part II IPC. The intention of incorporation of Section 82(4) becomes apparent when it is read alongwith part II of Section 174A IPC, The practical aspect of incorporation of Section 82(4) Cr.P.C. is required to be considered in the present case rather than adopting a theoretical approach. The distinction between a proclaimed person under Section 82(1) Cr.P.C. and proclaimed offender under Section 82(4) Cr.P.C. as reflected from the reading of entire Section 82 Cr.P.C. is only in context to the mode of declaration of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity of the absconder is established, by giving probable abodes of the absconder; (iv) The SHO or Investigating officer is entitled to make simultaneous applications for proclamation under Section 82 Cr.P.C. and also for attachment of the property under Section 83 Cr.P.C. alongwith list of property prepared which can be a farad of patwari in case of land and a plan of the house in case of a house. A Magistrate can issue simultaneous order of proclamation under Section 82 Cr.P.C. and attachment under Section 83 Cr.P.C. but proceedings of attachment can only be issued by the Court which had issued a valid proclamation under Section 82 Cr.P.C. A 'proclaimed person' or -'proclaimed offender' irrespective of the nomenclature, immediately after the proclamation is published, becomes a 'proclaimed offender' and his name must be entered in part I of Police Station Register No. 10 as laid down in Punjab Police Rules 22.54 and his history sheet can be opened. If said person is resident of another District, the information is required to be sent to the SHO concerned and SP of that District. Information of the proclamation is required to be given to Headman and Watc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting a 'proclaimed person' or 'proclaimed offender' after completion of investigation, challan can be presented under Section 173 Cr.P.C. and on request, the Court competent to try may record the depositions of witnesses under Section 299 Cr.P.C. The police would be required to submit a challan in case absconder is arrested. If proceedings under Section 299 Cr.P.C. have already been recorded, then a prayer should be made to take out that file. Police files of all cases in which proceedings under Section 299 Cr.P.C. have been taken, that are required to be kept in the Record Room of S.P. office in separate bundle in cloth of a distinctive colour and this bundle shall be labeled 50 years bundle . The names of all the police stations concerned shall be entered on the label. Such annual bund les of Files year wise are required to be kept together in separate part of the record room as per the Punjab Police Rules 27.39. (xiv) Judicial files in which proceedings have been recorded by the Court under Section 299 Cr.P.C. are kept in record room of the District Magistrate for a period of 50 years and the files are not destroyed. (xv) Arrest of a ''proclaimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n majority of the cases the order of declaring a person as 'proclaimed offender' has been set aside by giving a direction to the accused persons to appear before the Court concerned and seek concession of bail. The above said judgments, though do not deal with the scope of Section 82 (4) Cr.P.C. have permitted the accused persons to join the stream of process of law by enabling them to appear before the Court and face proceedings in accordance with law. In erudite judgment of Rajiv v. State of Haryana, Crl. Misc. No. M-30146 of 2011, decided on October 12, 2011, Ranjit Singh, J., the provisions of Section 82 (4) Cr.P.C. has been construed in context to the provisions of Section' 174A IPC and it has been held that a person falling under Section 82 (4) Cr.P.C. can be declared a proclaimed offenders, distinguishing the judgment of Satinder Singh's case (supra), observing that said judgment does not lay down a binding precedent. 34A. In case judgments, in Satinder Singh's case (supra) and other cases are read in context to Section 82 (4) Cr.P.C. it would tend to mean that an accused absconder of Sections 420, 498-A or 376 IPC etc. who disobeys and violates the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPC of any other law and has absconded by avoiding execution of warrants or proclamation he would be liable to lesser punishment under Section 174A Part I IPC after publication of proclamation under Section 82 (1) Cr.P.C. in manner mentioned in Section 82 (2) Cr.P.C. after statement in writing under Section 82(3) Cr.P.C. 38. Section 82(4) Cr.P.C. cannot be construed to hold that absconders not falling under Section 82(4) Cr.P.C. cannot be declared proclaimed of-. fenders or that they are not subject to the penalties and liabilities enshrined under law. The absconder not falling under Section 82(4) Cr.P.C. are liable under Section 174A Part I IPC and absconders under Section 82(4) Cr.P.C. are liable under Section 174A Part II IPC after publishing of proclamation. In view of above,' it is held that provisions of Section 82(4) Cr.P.C. incorporated by amendment of Act No. 25 of 2005 do not lay down that the persons accused of having committed offences mentioned under Section 82(4) Cr.P.C. can only be declared a proclaimed offender. It is further held that any person who has been declared a proclaimed person under Section 82 (1) Cr.P.C. or under Section 82(4) Cr.P.C. will be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
