Advocates:
Advocate Appeared:
For the Appellant :Surinder Garg, Advocate

JUDGMENT :

Sandeep Moudgil, J (Oral) 

The jurisdiction of this Court has been invoked under Section 482 Cr.P.C., for setting aside the order dated 26.08.2016 (Annexure P-9) passed in FIR No.79 dated 26.07.2014, under Sections 325, 323, 34 of IPC, registered at Police Station Bajakhana, District Faridkot (Annexure P-1), whereby the petitioner has been declared as proclaimed person.

2. Learned counsel for the petitioner contends that the order dated 26.08.2016 (Annexure P-9), vide which the petitioner has been declared as proclaimed person suffers from material illegality, since mandatory period of 30 days has not been rightly calculated by the trial Court in utter violation to the mandate laid down under Section 82 of Cr.P.C.

3. Notice of motion.

4. Mr. Rajiv Verma, DAG Punjab accepts notice on behalf of respondent/State, whereas Mr. Lovish Arora, Advocate has put in appearance on behalf of respondent No.2/complainant. Both are ad idem to submit that the order dated 26.08.2016 (Annexure P-9) suffers from technical flow, since the period of 30 days has not been rightly calculated as per established formula i.e. 30 days' period has to be completed from the date when proclamation is effected, whereas in the instant case, 30 days' period has been calculated from the date it was ordered to be fixed i.e., 26.05.2016 (Annexure P-7).

5. Referring to the order dated 26.05.2016 (Annexure P-7), learned counsel for the petitioner submits that though the proclamation under Section 82 Cr.P.C. was effected, but requisite period of 30 days has not been expired, thus the case was adjourned to 31.07.2016 for awaiting the presence of the petitioner and on 31.07.2016 being Sunday, the case was adjourned to 26.08.2016 i.e., the date, the petitioner was declared as proclaimed person by observing that the proclamation was duly published on 29.04.2016. It is submitted by the counsel for the petitioner that the trial Court has no right to adjourn the case for awaiting the presence of the petitioner, therefore, it is clear that proclamation was not published in accordance with the procedure prescribed under Section 82(1) of Cr.P.C.

(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:-

(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 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.

(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 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), and such person 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.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under subsection (1). "

6. The essential requirements of Section 82 of the Cr.P.C. for issuance and publication of proclamation against an absconder and declaring him as proclaimed person/offender may be summarized as under:-

(i) Prior issuance of warrant of arrest by the Court is sine qua non for issuance and publication of the proclamation and the Court has to first issue warrant of arrest against the person