ORDER

The present petition is filed under Section 482 of Cr.P.C. seeking quashment and charge-sheet against the petitioner in Crime No.211/2022 registered by Police Station- Aerodrom, Indore for commission of offences under section 302, 34 of IPC.

2. Facts of the case are that on 27.03.2022, a dead body was found lying along the roadside and brother of the deceased informed the Police about the same. Two blood stained stones, a lathi and a small kitchen knife were found lying at the site. The Police prepared the ‘Panchnama’ of recovery of dead body and other articles and lodged an FIR under Section 302 IPC against the unknown persons. On 30.03.2022 the brother of the deceased improved and stated that his brother was habitual of picking up fights and used to steal others cattle and few months back had stolen cow of Yadav family and they came and took away their cattle and fight had taken place between them. On 30.08.2022 i.e. after five months, brother of the petitioner was arrested by the Police and he made disclosure statement under section 27 of the Indian Evidence Act and stated that he and the petitioner had committed the alleged offence. Suraj and Laxman Patel were the witnesses of preparation of Memo under Section 27 of the Indian Evidence Act. One ‘Lathi’ was shown to have been recovered at the instance of brother of the petitioner, Sannu Yadav. The petitioner was made an accused after the arrest of his brother on 30.03.2022. The proceedings for arrest and declaring the petitioner as proclaimed offender were initiated and he was declared as proclaimed offender considering him as absconding since 27.03.2022. The petitioner was made an accused only the basis of disclosure statement of co-accused without discovery of any fact.

Therefore, the proceedings and the order of proclaimed offender was without any basis and is non-est and bad in law.

3. Counsel for the State raises a preliminary objection that the petitioner has been declared absconder and proceedings under Section 82 Cr.P.C. has been instituted and, therefore, petition is not maintainable.

4. I do not find any merit in the aforesaid contention. It is settled law that the FIR can be quashed under section 482 of Cr.P.C even after filling of the charge sheet. In this regard, reference may be made to the judgment passed by the Apex Court in the case of Joseph Salvaraj A. Vs State of Gujarat reported in (2011) 7 SCC 59 and the same was reiterated in Anand Kumar Mohotta Vs NCT of Delhi reported in (2019) 11 SCC 706. The inherent powers of the High Court under section 482 of Cr.P.C can be exercised at any stage of the trial in order to prevent abuse of process of law and to secure the ends of justice. The law is relating to consideration of anticipatory bail after the accused is declared proclaimed offender. In the case of Lavesh vs. State of NCT, Delhi (2012) 8 SCC 730, it has been held that if a person has been declared as proclaimed offender, is normally not entitled to anticipatory bail. Thus, the objection of the counsel for the applicant regarding maintainability of Section 482 of Cr.P.C. after proceedings under Section 82 of Cr.P.C. is repelled.

5. Counsel for the applicant submits that the applicant has been implicated on the basis of memorandum of his brother under Section 27 of the Indian Evidence Act which was recorded after five months. He stated that he and the petitioner had committed the alleged offences. It is further argued that the witnesses of Suraj and Laxman Patel of memorandum have been declared hostile. It is submitted that except the memorandum under Section 27 of his brother, there is no any other evidence. He referred the judgment of the Apex Court in the case of Antar Singh vs. State of Rajasthan (2001) 10 SCC 657 where it has been held that it would be inappropriate to implicate a person on the basis of statement made by co-accused. He also referred the judgment passed by the Apex Court in the case of State of Haryana vs. Bhajan Lal