JUDGMENT :

Sumeet Goel, J.

1. Present petition under Section 482 of the Code of Criminal Procedure, is filed, seeking quashing of order dated 17.08.2023 (Annexure P-5), passed by the Learned Judicial Magistrate, 1st Class, Ludhiana in case FIR No.03 dated 05.01.2023, under Sections 294, 427, 323, 506, 148, 149 IPC, 1860 (Sections 307 and 354 IPC, 1860 added later on) registered at Police Station Dugri, District Ludhiana. Vide the impugned order dated 17.08.2023 the petitioner has been declared proclaimed offender in the case.

2. While assailing the impugned order dated 17.08.2023 (Annexure P-5), the learned counsel for the petitioner has argued, that the order vide which the petitioner has been declared as proclaimed offender, is not sustainable and is liable to be set-aside. It is argued that no effective steps were taken, in the case to serve the petitioner with warrants before issuance of proclamation against him. It is further submitted that the petitioner had no intimation about the pendency of the present proceedings, and the petitioner got to know about the factum of his being declared as a proclaimed offender during the hearing of criminal writ bearing No. CRWP-1031 of 2023 (filed by the complainant side) before this Court. It is further submitted, that earlier the petitioner was residing with his brother in House No.1035, Gali No.4, Bhai Himmat Singh Nagar, Dugri, Ludhiana, but due to some family disputes having cropped up between the brothers, the petitioner on 30.06.2023 along with his family members shifted to House No.1733, Phase 3, Karnail Singh Nagar, Pakhowal Road, Ludhiana, and hence the petitioner lived at the said address from 01.07.2023 to 20.08.2023 and thereafter, shifted to House No.37, Block 37, Gali No.2, Jagdish Nagar, Dugri, Tehsil and District Ludhiana. The petitioner has appended an affidavit of his previous landlord and a rent agreement of his subsequent place of residence with this petition.

3. The learned counsel for the State assisted by the counsel for complainant has opposed the claim of the petitioner seeking quashing of the order declaring him proclaimed offender. While refuting the case of the petitioner detailed arguments concerning the merits of the case were made and it is argued that the offence alleged against the petitioner is serious and heinous. It is argued that the petitioner was aware about the pendency of the proceedings against him and had intentionally avoided appearance before the Court.

4. I have heard the learned counsel for the petitioner as well as the State and carefully perused the record of the case.

5. Perusal of the lower Court record, summoned by this Court, shows that vide order dated 29.07.2023 passed by the Judicial Magistrate, the arrest warrants issued against the accused were received back with the report of evading process. As such, the Court ordered initiation of proclamation proceedings against the petitioner for 02.09.2023. The proclamation was ordered to be published on or before 02.08.2023. However, vide order dated 17.08.2023 the petitioner was declared proclaimed offender and the case was fixed for 21.10.2023.

6. Warrant of arrest of a person is required to be issued by the Court under Section 70 of the Code of Criminal Procedure, 1973. Whereas, the proclamation for the person absconding is required to be made by the Court under Section 82 of the Code of Criminal Procedure, 1973. Both these sections of the Code operate in different circumstance and as such cannot be invoked simultaneously.

7. It is pertinent that as per Section 476 of the Code of Criminal Procedure, 1973, the warrant of arrest in compliance of provisions of Section 70 of the Code of Criminal Procedure is required to be issued in form No.2, contained in The Second Schedule of the Code of Criminal Procedure, 1973. The said Form No.2 is reproduced herein below for ready reference:

"FORM NO.2

WARRANT OF ARREST

[See Section 70]

To _________ (name and designation of the person or persons who is or are