PUNJAB AND HARYANA HIGH COUR

PARDEEP KUMAR v. STATE OF PUNJAB AND ANOTHER

PARDEEP KUMAR v. STATE OF PUNJAB AND ANOTHER

CRM-M-41656-2023

FACTS OF THE CASE:

Complainant filed a criminal complaint against the petitioner under Section 138 of the Negotiable Instrument Act, 1881(for short ‘NIA Act’), however, the petitioner claimed that he never received any Court summons or warrant of arrest. Being unaware, he could not appear before the concerned Court. Consequently, learned trial Court declared the petitioner as proclaimed person and this led to registration of FIR against the petitioner under Section 174-A of the IPC. Petitioner surrendered before the trial Court. Subsequently, main matter under Section 138 was compromised. Statement of complainant, regarding compromise, was also recorded before the trial Court. Complainant received cheque amount from the petitioner to his satisfaction and stated before the trial Court that he did not want to press any charges against the petitioner. He, thus, did not proceed further with the main complaint under Section 138 of the NIA Act and withdrew the same. However, the proceedings against the petitioner arising out of FIR under Section 174-A of the IPC were continuing.

OBSERVATIONS & OPINIONS OF THE HIGH COURT

The High Court observed that introduction of Section 174-A into the IPC was accompanied by a corresponding amendment in Schedule 1 of the Cr.P.C. This amendment classified the aforementioned offence as cognizable. However, Section 195 of the Cr.P.C. was consciously not amended correspondingly to exclude Section 174-A from its ambit. The omission of Section 174-A from the scope of Section 195 of the Cr.P.C cannot be characterized as a mere oversight, especially in light of the deliberate amendment in Schedule-1, while Section 195 was conspicuously left untouched. Thus, in its current state, Section 195 of Cr.P.C., unequivocally encompasses Section 174A, IPC within its legal framework. The earlier absence of corresponding amendment did perhaps give rise to a measure of bewilderment.

The High Court opined that the omission of Section 174-A from the purview of Section 195 of the Cr.P.C. cannot be treated as a mere inadvertent oversight. It gets more particularly obvious, when viewed through the lens of the deliberate simultaneous legislative action taken to amend Schedule-1. This deliberate choice to eschew any alteration in Section 195 Cr.P.C. while making concurrent changes elsewhere in the same Code suggests a level of intentionality that cannot be readily discounted.

In the realm of criminal jurisprudence, matters pertaining to personal liberty hold a paramount position. Such matters pertaining to personal liberty should never be predicated upon inferences drawn against the accused from presumed intentions and/or inadvertent omissions on the part of the legislature. The sanctity of personal liberty demands nothing less than clear and categorical legislative provisions ensuring that justice is not compromised by inferences drawn against the accused from legislative ambiguity or oversights. In conclusion, it was held that Section 195, Cr.P.C. encompasses Section 174-A, IPC within its purview.

The High Court further observed that the declaration of an individual as a proclaimed person or offender, as contemplated under Section 82, Cr.P.C. carries with it the consequential implication of attachment and sale of his property as delineated in Sections 83, 84, and 85 of the Code. Furthermore, such a declaration triggers the criminal liability of the individual under Section 174-A, IPC, with a potential sentence of up to seven years of imprisonment, coupled with a monetary penalty. This has profound and far-reaching ramifications, significantly affecting the fundamental rights to life, liberty and property of the concerned individual.

Hence, it becomes imperative that the Courts meticulously adhere to the statutory requirements in letter and spirit both, duly reflecting their compliance on the record prior to pronouncing an individual as a proclaimed person or offender and invoking criminal liability under the aforementioned section.

HELD:

While allowing the petition, the Hon’ble High Court quashed the FIR and all consequential proceedings arising therefrom against the petitioner and further issued certain guidelines qua the procedure to be adopted at the time of issuance of proclamation. These guidelines are:

Issuance of proclamation:

1. Preceding the issuance of the proclamation under section 82 Cr.P.C., the Court must deliberate upon its previous efforts to secure the presence of the through other legally permissible means. These efforts encompass the issuance of summons, the execution of bailable and/or non-bailable warrants against the accused. The Court must thoroughly document the results stemming from these endeavours, accompanied by pertinent facts and comprehensive details. It is incumbent upon the Court to satisfactorily ascertain that the individual in question has indeed absconded or is concealing himself to evade execution of warrant of arrest.
2. The phrase “reason to believe,” as articulated in Section 82 of the Code of Criminal Procedure, signifies that the Court must derive its belief from the available evidence and materials that the concerned person has absconded or is concealing himself to evade execution of warrant of arrest.
3. Furthermore, in the proclamation, it must be set forth as to where and when the concerned individual must present himself. A designated location and time must be stipulated. Importantly, the specified date and time for appearance should not be less than a thirty-day from the date of publication of the proclamation.

Publication of proclamation

1. The publication of a proclamation, as outlined in Section 82(2) of the Code of Criminal Procedure, mandates adherence to all three prescribed modes, namely: (a). The public reading of the proclamation in a conspicuous location within the town or village where the individual ordinarily resides. (b). The affixation of the proclamation at a prominent spot at the individual’s house or homestead. (c). The display of the proclamation at a prominent location within the precincts of the court house.
2. All the aforesaid three modes of publication of a proclamation have to be adhered to. Failure to follow all or any of them renders the proclamation invalid in the eyes of the law. This is because the three sub-clauses (a) to (c) are mutually exclusive.
3. If the Court so feels, in addition to the aforementioned trio of methods for securing the accused’s presence, it may, at its discretion, also direct the publication of a copy of the proclamation in a daily newspaper circulating within the geographical area where the said individual ordinarily resides.
4. If the Court, in its discretion orders publication of proclamation in newspaper, it shall also direct that the newspaper agency, upon the publication of the proclamation in the newspaper, shall dispatch a copy thereof to the accused’s address, as is the procedure observed in civil matters, in terms of Order 5 Rule 10 of the Code of Civil Procedure. In essence, this supplementary measure ensures that the accused is duly apprised of the legal proceedings against him.

Declaration as “proclaimed person” or “proclaimed offender:

• Prior to the declaration of the concerned individual as a “proclaimed person” or “proclaimed offender,” the Court shall pass a speaking order stating relevant facts and record its satisfaction that the proclamation has been duly and properly published in the prescribed manner.
• Furthermore, it must ensure that a period of not less than thirty days has expired between the date of publication of the proclamation and the date indicated in the proclamation for the individual’s appearance. If the interval between the proclamation’s publication and the date specified therein for appearance falls short of thirty days, such a publication of the proclamation cannot serve as the foundation for designating the individual in question as a “proclaimed person” or “proclaimed offender.”
• A person can be declared “Proclaimed offender” only where the proclamation published under sub-section (1) of section 82 Cr.P.C. is in respect ofany of the offencesas per table given below :-

OFFENCES UNDER IPC

302. Punishment for murder

304. Culpable Homicide not amounting to murder

364. Kidnapping or abducting in order to murder.

367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.

382. Theft after preparation made for causing death, hurt or restraint in order to the

392. Punishment for robbery.

393. Attempt to commit robbery.

394. Voluntarily causing hurt in committing robbery.

395. Punishment for dacoity.

396. Dacoity with murder.

397. Robbery or dacoity, with attempt to cause death or grievous hurt.

398. Attempt to commit robbery or dacoity when armed with deadly weapon.

399. Making preparation to commit dacoity.

400. Punishment for belonging to gang of dacoits.

402. Assembling for purpose of committing dacoity.

436. Mischief by fire or explosive substance with intent to destroy house, etc.

449. House-trespass in order to commit offence punishable with death.

459. Grievous hurt caused whilst committing lurking house trespass or house-breaking.

460. All persons jointly concerned in lurking house-trespass or housebreaking by night punishable where death or grievous hurt caused by one of them.

• If person accused of the above offences 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 all other alleged offences, the concerned person can and shall be declared as a “proclaimed person”.

Invoking criminal liability for the offence under section 174-A of IPC:

• It is imperative to bear in mind that the primary purpose behind the issuance and publication of proclamations under Section 82, as well as the attachment and sale of an individual’s property, is the securing/compelling the appearance of the concerned person, to facilitate the expeditious trial of criminal cases by obviating the often protracted delays which impede their disposal.
• It is noteworthy that the Code of Criminal Procedure does not prescribe an automatic or obligatory invocation of further criminal liability under Section 174-A of the Indian Penal Code, in every case where an individual fails to appear pursuant to him being declared as ‘proclaimed person’ or ‘proclaimed offender’ after the publication of the proclamation under subsection (1) of Section 82 of the Code.
• Consequently, it follows that even subsequent to the formal declaration of an individual as a “proclaimed person” or “proclaimed offender,” the Court still retains the discretion to determine whether it is judicious to initiate the rigorous criminal proceedings under Section 174-A of the IPC, being mindful that the offence carries a punishment of imprisonment for up to seven years, coupled with a fine.
• In arriving at such a pivotal decision, the Court should exercise due circumspection, once more apply its mind to the facts and circumstances of each case considering the majesty of law vis-à-vis the nature and gravity of the offence that triggered the publication of the proclamation under subsection (1) of Section 82 of the Cr.P.C.; the potential impact of said offence on the victim or society at large; steps, if any, taken for the attachment and sale of property of the person concerned and the result thereof; the stage/status of the ongoing trial, any mitigating factors that may favor the proclaimed person or offender, and conversely, any aggravating factors against them. It is thereafter, that the Court should pass a speaking and reasoned order for initiating criminal proceedings against the proclaimed person or offender for the offense under Section 174-A of the IPC.
• Once the Court decides to proceed against the petitioner for an offence under Section 174-Aof the IPC, it is imperative to institute a formal written complaint in the competent jurisdictional court. This imperative arises from the prevailing provision of Section 195 of the Code of Criminal Procedure, which mandates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

Written by: Advocate Deepak Gollen