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High Court Of Rajasthan
Judgename : H.R. Panwar
Chokha alias Pukhraj - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Miscellaneous Application No. 940 of 2002
Decided On : 05/09/2005
Section 482 - Criminal Warrant - 82, CrPC - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 82 of the Criminal Procedure Code (CrPC) and its mandatory requirements. It highlighted the conditions and manner in which the proclamation under Section 82 should be published, emphasizing the need for compliance with the statutory provisions. The court also referred to relevant case laws to interpret the provisions and emphasized the mandatory nature of Section 82.
Fact of the Case:
The petitioner, an accused in a criminal case, challenged the standing warrant issued against him by the trial court. The petitioner, serving in the Indian Army, was declared absconder, and a standing warrant was issued. The petitioner contended that the trial court erred in declaring him absconder and issuing the standing warrant, and that the mandatory provisions of Section 82, CrPC were not complied with.
Finding of the Court:
The court found that the trial court did not comply with the mandatory provisions of Section 82, CrPC in issuing the standing warrant. It noted that the petitioner's army service details were not disclosed, and the trial court did not make sincere efforts to execute the warrant through the army authorities. The court concluded that the petitioner did not abscond or conceal himself to avoid warrant execution, and the impugned order was not sustained in the eye of the law.
Issues: The issues revolved around the compliance with the mandatory provisions of Section 82, CrPC, the petitioner's status as an absconder, and the efforts made to execute the warrant through the army authorities.
Ratio Decidendi: The court emphasized the mandatory nature of Section 82, CrPC and the need for strict compliance with its provisions. It also highlighted the importance of making sincere efforts to execute the warrant, especially when the accused is serving in the armed forces.
Final Decision: The miscellaneous petition was allowed, the impugned order was set aside, and the matter was remanded to the trial court for proceeding afresh by issuing a proclamation in accordance with the law.
H.R. Panwar, J.-By the instant criminal miscellaneous petition under Section 482, CrPC, accused-petitioner has challenged the impugned order dated 27.07.2002 passed by the Additional Chief Judicial Magistrate, Barmer (for short, the "trial Court") in Criminal Case No. 28/2002, by which the trial Court issued standing warrant against the petitioner.
2. The facts of the case, relevant and necessary for the decision of this miscellaneous petition, are that on 21.04.2002, prosecutrix Smt. Dammi lodged an FIR with Police Station, Ramsar (district Barmer) alleging therein that on 18.04.2002 when she was at her Dhani, the accused-petitioner came and committed rape on her. On this information, the investigation ensued. During investigation, the petitioner could not be apprehended by police and, therefore, on completion of investigation, challan was filed against the petitioner under Section 299, CrPC for the offences under Sections 450, 354, 376, IPC and the trial Court took cognizance of the aforesaid offences. Since, the petitioner was declared absconder, despite issuance of arrest warrant, he could not be traced out and, therefore, the arrest warrant was not executed and ultimately the standing warrant has been issued by the trial Court vide impugned order dated 27.07.2002.
3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State assisted by the Counsel for the complainant. Perused the order impugned and the record of the case.
.4. It has been contended by the learned Counsel for the petitioner that the petitioner is serving in Indian Army and regularly discharging his duties at his place of posting at Jodhpur and as such the trial Court has seriously erred in law in declaring him absconder and issuing standing warrant. It has further been contended that even while issuing the standing warrant, the mandatory provisions of Section 82, CrPC have not been complied with.
5. Section 8, CrPC reads as under:-"82. Proclamation for person absconding. 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 thirty days from the date of publishing such proclamation.
6. The proclamation shall be published as follows:
.(a) it shall be publicly read in some conspicuous place of the town of village in which such person ordinarily resides.
.(b) it shall be affixed to some conspicuous part of the house or homestead 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.
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.
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 evidence that the requirements of this section have been complied with, and
that the proclamation was published on such day."
7. In the instant case, the incident took place on 18.04.2002 and the FIR was lodged on 21.04.2002. On 22.07.2002 the SHO, Police Station, Ramsar submitted a report before the trial Court to the effect that despite search made at various military areas, railway station, bus stand etc., the whereabouts of the accused could not be known. It was further mentioned in the report that petitioners batch number and the military company/battalion could not be ascertained and as such petitioner could not be arrested. On this report, warrant of arrest Exhibit P-1 was issued by the trial Court, which could not be executed. On this, the trial Court record
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