TaxTMI 
TaxTMI 
TaxTMI 
2012 (10) TMI 1243
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....n (4) of Section 82 Cr.P.C. which has raised controversy reads as under :- 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 speci....
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.... another, following the judgment in Satinder Singh's case (supra), another Bench 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 offen....
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....ation of the word 'Industry' in Industrial Disputes Act was raised. It 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 ....
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....tial investigation; right of an accused to speedy investigation; right of an accused to the 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 p....
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....Section 204 Cr.P.C. and Section 87 Cr.P.C. which enable a Magistrate to issue process 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....
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.... village and every person residing in a village and every person shall 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-bailabl....
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....r 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 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 spe....
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.... stringent provisions are made to exert pressure on the, accused 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 1....
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....d, shall be punished with imprisonment of either description 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 Cognizable Nonbailable Magistrate of the first Class. In a case where declaration has been made under sub-section (4) of Section 82 of this Code pronouncing a person as proclaimed offender. Imprisonment fo....
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....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.C., pertaining to declaration made by the Court and shall apply as it applies to a proclamation published under Section 82 (1) Cr.P.C. 18A. Sub-section (4) of Section 82 Cr.P.C., if read, independent of the other sub-sections of Section 82 Cr.P.C. and provision of Section 174A IPC and Section 174 IPC, is capable of being misconstrued to mean that it is only that accused' person, facing trial, only for offences mentioned in Section 82(4), who can be declared "proclaimed offender'- after publication under Section 82(1)(2) and (3) Cr.P.C. giving immunity to the/other absconders from being declared "p....
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....emain 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) the mischief that it was intended to remedy. In Candda Robut Leader v. R., (1898) AC 735 referred to in M. Pentiah and others v. Muddala Veeramallappa, AIR 1961 SC 1107, following the rule of interpretation that statue has to be read as a whole to find out real intention of legislation, Lord Davey, observed Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as far as possible, to make a consistent enactment of the whole statue or series of statues relating to the subject matter. The abovesaid principle of construction is spoken as 'ex....
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....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 E.R. 155p. 164 (CA), Denning L.J. said, that "a Judge must not alter the material of which the' Act is woven but he can and should iron out the creases. It was approved in Bangalore Water Supply v. A. Rajappa, AIR 1978 SC 548 and State of Tamil Nadu v. Kodaikanal Motor Union, AIR 1986 SC 1173. 23. In order to appreciate whether Section 82(4) Cr.P.C. intends to carve out an exception for certain special sections mentioned therein or the said section provides stringent penalty for substantive offences' mentioned therein under Section 174A IPC, Part II, the provisions of Secti....
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....ion 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 Chapter VI and under Chapter XXXIII (provisions pertaining to bail bonds) read with the powers of the police to arrest persons as per provisions of Section 41 Cr.P.C. Apprehending an accused with the aid of the public and other officials is provided in Chapter IV under Sections 37, 38, 39, 40 and 41 Cr.P.C. 27. Section 174 IPC made, non-attendance, in obedience of an order of public servant or a Court, an offence which entailed very meager punishment of simple imprisonment for one month or six months in case the disobedience was pertaining to summons of p....
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.... 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 term which may be extended to 7 years. The offence under Section 174 IPC was bailable and non-cognizable but Section 174-A IPC has been incorporated to enhance the rigour of punishment of non-appearance pursuant to publication. The first part of Section 174-A deals with absconding persons for all the offences and provides punishment for non appearance pursuant to proclamation under Section 82 (1) Cr.P.C. for a period of 3 years but if the offences in which a person is accused of offences/charges of serious offences contained in Section 82(4), the harsh puni....
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....uot; 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 absconder as "proclaimed offender". The distinction of mode to be adopted by Court is apparent from reading of Section 82(3) Cr.P.C. and Section 82(4) Cr.P.C. A "statement in writing" by Court issuing the proclamation to the effect that proclamation was duly published on a specific day in manner specified in clause (i) of subsection (2) shall be 'conclusive evidence' that requirement of Section 82(1) and (2) Cr.P.C. have been complied with, and that the proclam....
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....taneous 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 Watchman of the village concerned. (v) All the steps taken by the local Police to secure the arrest of absconders and to initiate proceedings under Sections 82, 83 Cr.P.C. are required to be noted in case diaries, other relevant records and Registers of police station and registers of Prosecuting Branch. (vi) When a person whose finger print slip is on the record absconds, that information is required to be sent to Finger Print Bur....
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....ut 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 offender" or "proclaimed person" is permissible without warrant by police officer under Section 41 (c) Cr.P.C. 32. Every Officer employed in connection with the affairs of the village as described in Section 40 (2) (iii) Cr.P.C. and every person residing in a village is duty bound to forthwith communicate the nearest Magistrate or to the officer incharge of the nearest police station, whichever is nearer, any information whic....
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....dings 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 directions in a warrant or proclamation, issued by a Court can not be declared "proclaimed offender" by the Courts, but a person who is accused of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of Indian Penal Code mentioned in Section 82(4) can only be declared proclaimed offender. 35. Whether said interpretation is legal and valid deserves to be answer....