IMPORTANT POINT
The central legal point established in the judgment is the importance of complying with the requirements of Section 82 of the Code of Criminal Procedure, particularly in ensuring the presence of the accused during trial.

JUDGMENT :

Ranjan Sharma, J.

The instant petition, has been filed under Section 482 of the Code of Criminal Procedure [referred to as Cr.P.C.] against the orders dated 30.11.2023 [Annexure -A] and 08.02.2024 [Annexure-B] [referred to as the Impugned Orders] passed by the Learned Additional Chief Judicial Magistrate, Court No.III, Shimla, in Criminal Case No.598 of 2019, titled as State Versus Rakesh Chauhan registered under Sections 279, 337 and 338 of the Indian Penal Code in FIR No.69 of 2019 registered at Police Station, Shimla [East].

2. The background facts of the case are that on the basis of FIR No.69 of 2019, referred to above, the investigation was undertaken by the Police and consequent upon the presentation of the police report/challan, the proceedings i.e. Criminal Case No.598 of 2019, were initiated before the Learned Judicial Magistrate, 1st Class, Court No.3, Shimla.

It is submitted that on issuance of process, the petitioner appeared before the Learned Judicial Magistrate, First Class, Court No.3, Shimla, from time to time but, the matter was then transferred to the Learned Judicial Magistrate, First Class, Court No.5, Shimla on 26th July, 2023.

3. Records reveal that on 4th September, 2023, the case [Criminal Case No.598 of 2019] was transferred from the Court of Learned Judicial Magistrate, First Class, Court No.5, Shimla to the Court of Learned Additional Judicial Magistrate, Court No.3, Shimla [referred to as the Trial Court, for this petition], by way of transfer. The Learned Trial Court, Additional Chief Judicial Magistrate, Court No.3, Shimla, issued notice to the petitioner-accused as well as his counsel on 07.10.2023. On 07.10.2023, the Presiding Judge was not present/was on leave and the matter was listed for 30.11.2023. Even on 30.11.2023 [Annexure-A] since the notice of appearance was not served, therefore, there was no occasion for the petitioner-accused to appear and ignoring these facts, the NBWs were issued for 17.01.2024.

The case records reveal that on 17.01.2024, the NBWs issued on 30.11.2023 still remain unexecuted and thereafter on 17.01.2024, fresh NBWs were issued, returnable for 08.02.2024.

4. Notably on 17.01.2024 though the fresh NBWs were issued by the Learned Trial Court i.e. Additional Chief Judicial Magistrate, Court No.3, Shimla, which were received back unexecuted, yet, the Learned Trial Court has issued an order on 08.01.2024 [Annexure-B] initiating the proceedings, under Section 82, of the Code of Criminal Procedure [referred to as Cr.P.C.] against the petitioner herein.

5. Heard Mr. I.S. Chandel, learned counsel for the petitioner and Mr. Tejasvi Sharma, Learned Additional Advocate General.

6. It is relevant to have a recap of the provisions of Section 82 of the Code of Criminal Procedure, which read 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 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 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;

(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 ma