A proper legal service under Section 84 BNSS is mandated before declaring an individual a proclaimed offender.

ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

94 09.10.2018 Khilchian, District 420 & 120 B IPC Amritsar

1. Challenging the order of proclamation on being declared as a proclaimed offender, the petitioner has come up before this court under section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 , [ BNSS ], 2. Counsel appearing for the State has strenuously opposed this petition, including the limited relief as confined by the petitioner.

3. The petitioners' Council seeks quashing based on the non-compliance with the mandatory provision of Section 84 BNSS , 2023 (Analogous to Section 82 of CrPC, 1973). He submits that the petitioner was not served in terms of S. 84 of BNSS .

4. The petitioner wants to draw this court's attention to the fact that the absence was not willful and was due to factors beyond the petitioner’s control. The State could not dispute the factual matrix at this stage.

REASONING:

5. A proclamation was issued because they attempted to serve him at an address where he did not reside.

6. It shall be relevant to extract paragraphs 6 to 10 of the petition, which read as follows:

“6 That, subsequent to the issuing of non-bailable warrants on 09.10.2023, it has come on record that the same were not served upon the petitioner and co-accused, and on 23.10.2023, fresh non-bailable warrants of arrest were issued against them for 16.11.2023. A true copy of the Order dated 23.10.2023 is annexed herewith as Annexure P-4.

7. That pursuant thereto, the situation remained the same and for the further two consecutive dates, that is 16.11.2023 and 03.01.2024, the non- bailable warrants remained unserved upon the petitioner as well as the co-accused, and the warrants were then issued for 16.02.2024. A true copy of the Orders dated 16.11.2023 and 03.01.2024 is annexed herewith as Annexure P-5 and Annexure P-6, respectively.

8 That on 16.02.2024, the warrants of arrest issued by the concerned Court were received back with the report that the accused were not available at their residence, and as such proclamation against the petitioner and co-accused was issued for 16.04.2024, and the same was directed to be affected on or before 10.03.2024. A true copy of the Zimni Order dated 16.02.2024, as well as the true typed copy of the proclamation issued against the petitioner, is annexed herewith as Annexure P-7 and Annexure P-8, respectively.

9. That in the present case, a report came to be submitted by the serving officer on 10.03.2024, wherein it has been stated that the petitioner was not found at the given address. A true translated copy of the report of the serving officer dated 10.03.2024 is annexed herewith as Annexure P-9.

10. That subsequently, on 16.04.2024, it was wrongly observed by the concerned Court that the proclamation had been duly served upon the accused and even though the accused, including the petitioner, were not found at the given address, but even then all the accused, including the petitioner, were declared as proclaimed persons vide the Impugned Order.”

7. I have gone through the pleadings and the reply, and there is nothing to dispute the stand of the petitioner, which is well reasoned. Given above, the petitioner has made a case on the preponderance of probability that neither any sincere attempt was made to execute the warrants, nor did the petitioner have any knowledge about appearance as contemplated under Section 84 BNSS . Thus, the order is arbitrary and did not afford reasonable opportunity as mandated under Section 84 BNSS , 2023.

8. An analysis of the submissions and the petition would lead to the following outcome. It remains undisputed that when the petitioner got to know about his being declared a proclaimed offender, he took a legal remedy and came up before this Court.

9. Let the petitioner attend the trial because the criminal justice system must not hamper and suffer because of the petitioner.

10. The primary object of the service is to secure the accused's presence at trial. The petitioner app