TaxTMI 
TaxTMI 
2021 (6) TMI 963
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....2016 titled as 'Indiabulls Housing Finance Ltd. vs Richmond Leisure and Hotels Pvt. Ltd.' under Sections 138/141/142 of the Negotiable Instruments Act, 1881 read with Section Section 357 of the Cr. P.C. (whereby the petitioner was declared proclaimed person under Section 82 of the Cr.P.C.) and all consequential proceedings arising out of the same. Briefly stated that the facts giving rise to filing of the present petition are that respondent No.2 filed complaint under section 138/141/142 of the Negotiable Instruments Act, 1881 read with Section 357 of the Cr.P.C. The petitioner was summoned to face trial for commission of the above said offence. On failure to appear in the case, the petitioner was declared proclaimed person vide ....
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....n perusal of the relevant record, I am of the considered view that the impugned order dated 10.01.2018 suffers from material illegality and is liable to be quashed with all subsequent proceedings arising out of the same. Section 82 of the Cr.P.C., which provides for publication of proclamation against person absconding, reads as under:- "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 ....
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....him a proclaimed offender and make a declaration to that effect. (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)." The essential requirements of Section 82 of the Cr.P.C. for issuance and publication of proclamation against an absconder and declaring him as proclaimed person/offender may be summarized as under:- (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 Vs. State of Delhi : 2008 Crl. J. 2561). (ii) There mus....
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..... (See Dilbagh Singh Vs. State of Punjab (P&H) : 2015 (8) R.C.R. (criminal) 166 and Ashok Kumar Vs. State of Haryana and another : 2013 (4) RCR (Criminal) 550) (vi) The Proclamation has to be published in the manner laid down in Section 82 (2) of the Cr.P.C.. 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)....
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....s published on such day. (See Birad Dan Vs. State : 1958 CriLJ 965). (xi) The conditions specified in Section 82(2) of the Cr.P.C. for the publication of a Proclamation against an absconder are mandatory. Any non-compliance therewith cannot be cured as an 'irregularity' and renders the Proclamation and proceedings subsequent thereto a nullity. (See Devendra Singh Negi alias Debu Vs. State of U.P. and another : 1994 CriLJ 1783 and Pal Singh Vs. The State : 1955 CriLJ 318). In Dilbagh Singh Vs. State of Punjab (P&H) : 2015 (8) R.C.R. (criminal) 166 it was held by this Court that in order to ensure that an accused should have a fair opportunity to appear, 30 days clear notice is necessary and the proclamation should be publ....
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.... offender was set aside. The facts of the present case are similar to those of the cases referred above. In the present case vide order dated 06.10.2017 proclamation under Section 82 of the Cr.P.C. was ordered to be published against the petitioner requiring the petitioner to appear before the Court on 14.11.2017. The proclamation was published on 06.11.2017. The petitioner was not given statutory minimum period of thirty days from 06.11.2017 (the date on which the proclamation issued in terms of order dated 06.10.2017 was published) till 14.11.2017 (the date fixed for his appearance before the Court). Learned Judicial Magistrate First Class, Gurugram vide order dated 14.11.2017 adjourned the case firstly to 19.12.2017 and then to 10.01.....