IMPORTANT POINT
Ambit of bail application cannot be expanded to consider correctness of proclamation made under Section 82 of Cr.P.C.

ORDER

Subodh Abhyankar, J.—This is applicant’s (repeat) second application under Section 438 of Criminal Procedure Code, 1973 for grant of anticipatory bail, as the present applicant is apprehending his / her arrest in connection with Crime No.391/2019 registered at Police Station Rajgarh, Tahsil Sardarpur District Dhar (MP) for offence punishable under under Sections 409 and 420 read with Section 34 of the Indian Penal Code, 1860. The earlier anticipatory bail application of the applicant Miscellaneous Criminal Case No.9537/2020 was dismissed on 03.03.2020 by this court as not pressed, as the counsel had no instructions.

2. In brief, the facts of the case are that one Rajesh Victor, an Accounts Officer of the Cooperative Department, Dhar lodged an FIR on 30.08.2019 against the Office Bearers of Shri Rajendra Suri Sakh Sahakari Sanstha Maryadit Rajgarh for serious financial irregularities committed by them in disbursing the loan amount to its members and also while obtaining the Fixed Deposits from its Members. The amount runs into crores of rupees. Admittedly against the present applicant a proclamation has already been issued under Section 82 of the Code of Criminal Procedure, 1973.

3. Shri Rathi has also submitted that the applicant is not declared as a proclaimed offender u/s.82(4) of Cr.P.C. which is a prerequisite to declare a person a proclaimed offender as the applicant has not been charged with any of the sections as provide under s.82(4) of Cr.P.C. which include 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) as the applicant is charged under Sections 409 and 420 read with Section 34 of IPC only. In support of his contentions, shri Rathi has relied upon the following decisions:-

1. Sanjay Sarin v. State (Union Territory, Chandigarh) reported as (2013) Cri. L.J. 408,

2. Rahul Dutta v. State of Haryana reported as 2012 (2) R.C.R. (Criminal) 585,

3. Rishabh Seth v. State of Rajasthan & another decision dated 08.03.2018 in Criminal Miscellaneous (Petition) No.5767/2017 of Rajasthan High Court (Jaipur Bench) and

4. Satinder Singh v. The State of U.T. Chandigarh & another reported as 2011 (2) R.C.R. (Criminal) 89.

4. Learned counsel for the respondent / State, on the other hand, has opposed the prayer.

5. On due consideration of the rival submissions and on perusal of the case diary including the documents filed by the applicant, this Court finds that, against the applicant the proclamation proceedings under Section 82 of the Code of Criminal Procedure, 1973 have already been concluded on 10.2.2020. Since it has not been challenged, it has already attained the finality and as such the correctness of the same cannot be gone into in this bail application. So far as the contentions raised by shri Rathi that an accused can be declared as proclaimed offender only in terms of s.82(4) of Cr.P.C. is concerned, this court does not find any merits in said claim, this is for the reasons that even when a proclamation is made u/s.82(1) of Cr.P.C., it is also a declaration that the accused has absconded and against whom a publication is made. The procedure adopted u/s.82(4) of Cr.P.C. is no different than the procedure adopted u/s.82(1) of Cr.P.C. The only difference is the penal provisions for the same as provided under s.174A of IPC which reads as under:-

“174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.—Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of Section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall a