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PRAVINDRA SINGH CHAUHAN, J. (ORAL) –

1. The present petition has been filed under Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking quashing of order dated 12.07.2016 (Annexure P-6) passed by learned Sub Divisional Judicial Magistrate, Jagraon, whereby the petitioner was declared proclaimed person and the consequential order dated 02.06.2023 (Annexure P-7) passed under Section 85(2) Code of Criminal Procedure, 1973, (for short “Cr.P.C.”), attaching the property of the petitioner in FIR No.03 dated 13.02.2015 (Annexure P-1) under Sections 420 and 120-B IPC (corresponding Sections 318(4) and 61(2) of Bharatiya Nyaya Sanhita, 2023) (for short “BNS”), registered at Police Station NRI, Ludhiana (Rural), District Ludhiana Rural, along with all consequential proceedings arising therefrom.

2. Learned counsel for the petitioner has submitted that the impugned order declaring the petitioner as a proclaimed person is patently illegal, arbitrary and an abuse of the process of law as the mandatory procedure prescribed under Section 82 of Cr. P.C (corresponding Section 84 of BNSS) were not complied with. He has further submitted that the petitioner left India for Canada on 14.10.2014 i.e. much prior to registration of the FIR dated 13.02.2015 and thereafter, did not return to India either during the investigation or at the time when warrants of arrest and proclamation proceedings were initiated. He has further submitted that despite the Investigating Agency being fully aware of the fact that the petitioner was residing abroad, the prescribed statutory procedure for securing his presence was allegedly not followed and he was declared as proclaimed offender. He further submitted that the petitioner was also suffering from serious medical complications during the years 2018 to 2021 and he underwent six major surgeries, including bone grafting, skin grafting and skin transplantation and remained bedridden for about four to five years rendering him unable to carry out his normal day-to-day activities or unable to travel to India.

3. He further submitted that despite being aware of these facts, the learned Sub Divisional Judicial Magistrate, Jagraon, vide order dated 12.07.2016 (Annexure P-6), directed issuance of proclamation under Sections 82 Cr.P.C. and vide order dated 02.06.2023 (Annexure P-7), i.e. after an inordinate delay of about seven years, ordered attachment of the property of the petitioner under Section 85(2) of Cr.P.C. and the said order was consequential to the order declaring the petitioner as proclaimed person, without independently examining the mandatory requirements of Sections 82 and 85 Cr.P.C.

4. Learned counsel has further submitted that the dispute between the parties has been amicably and voluntarily settled without any coercion or undue influence and pursuant to the same, a written compromise dated 07.05.2026 (Annexure P-8) has been recorded and in view of the said compromise, the complainants have no objection for quashing of the FIR and all consequential proceedings.

5. Referring to the short reply already filed by way of an affidavit dated 24.08.2026 of Mr. Harjinder Singh, PPS, DSP, NRI Wing, Ludhiana, on behalf of State of Punjab, learned State counsel has reiterated the submissions made therein and opposed the present petition. While refuting the case set up by the petitioner, detailed arguments were advanced on merits, contending that the offence alleged against the petitioner is serious in nature and that the investigation was conducted in a fair and proper manner. It is submitted that the petitioner has evaded the proceedings and was declared proclaimed person in the present case on 12.07.2016 by the trial Court as per law. Furthermore, the petitioner has wasted the precious time of the Court as he did not face the proceedings of the present FIR for a long period of time. It has further been pointed out that the learned trial Court scrupulously adhered to the procedure prescribed under Section 82 Cr.P.C. and no infirmity or irregularity is discernible from the record. Furthermore, the petitioner has wilfully chosen not to appear before the trial Court and consequently, after adopting the process, the trial Court was constrained to declare him a proclaimed person. Learned State counsel has, therefore, submitted that the conduct of the petitioner clearly establishes his deliberate defiance of the judicial process. Accordingly, dismissal of the instant petition has been prayed for.

6. I have heard learned counsel for the parties and carefully perused the records.

7. The law is well settled that no person can be declared a proclaimed offender/person unless the procedure prescribed under Section 82 Cr.P.C. is strictly and meticulously adhered to. It is trite that the provisions of Section 82 Cr.P.C. are mandatory in nature. Furthermore, Section 82(1) of the Cr.P.C. clearly provides that before issuing a proclamation requiring a person to appear, the Court must have reasons to believe that such person has absconded or is concealing himself so that the warrant cannot be executed. Failure to adhere to the provisions of Section 82 of the Cr.P.C. before declaring the petitioner as proclaimed person vitiates the subsequent order declaring the accused as a proclaimed person.

8. Perusal of the records shows that the petitioner had left the country on 14.10.2014, whereas the FIR in question was registered on 13.02.2015. It is further borne out that since the petitioner was not in India at the relevant time, therefore, no effort was made by the Court below to serve him in accordance with the provisions of Section 82 Cr.P.C. Ultimately, vide the impugned order dated 12.07.2016, the petitioner was declared as proclaimed person.

9. This Court finds that the course adopted by the trial Court is in clear contravention of and antithetical to the provisions of Section 82 Cr.P.C. The trial Court has committed a manifest illegality by issuing and acting upon the proclamation without ensuring compliance with the mandatory statutory requirements. The trial Court, while declaring the petitioner as a proclaimed person, failed to record the requisite judicial satisfaction regarding due execution of the proclamation and proceeded in a mechanical and perfunctory manner, rendering the impugned order legally unsustainable. Such an order being violative of mandatory provisions of law, cannot be sustained. Further, Section 82 Cr.P.C reads 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 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 Sections 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 sub-section (1).]”

10. A Coordinate Bench of this Court while dealing with invocation of the provision of Section 82 Cr.P.C., against an accused in the case of ‘Sonu v. State of Haryana, 2021(1) RCR (Criminal) 319’, held as under:

“9. The essential requirements of section 82 of the Cr.P.C., 1973 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 concerned. (See Rohit Kumar v. State of Delhi: 2008 Crl. J. 2561).

(ii) There must be a report before the Court that the person against whom warrant was issued had absconded or had been concealing himself so that the warrant of arrest could not be executed against him. However, the Court is not bound to take evidence in this regard before issuing a Proclamation under section 82(1) of the Cr.P.C., 1973. (See Rohit Kumar v. State of Delhi : 2008 Crl. J. 2561).

(iii) The Court cannot issue the Proclamation as a matter of course because the Police is asking for it. The Court must be prima facie satisfied that the person has absconded or is concealing himself so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence. (See Bishundayal Mahton and others v. Emperor : AIR 1943 Patna 366 and Devender Singh Negi v. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783).

(iv) The requisite date and place for appearance must be specified in the proclamation requiring such person to appear on such date at the specified place. Such date must not be less than 30 clear days from the date of issuance and publication of the proclamation. (See Gurappa Gugal and others v. State of Mysore : 1969 CriLJ 826 and Shokat Ali v. State of Haryana : 2020(2) RCR (CRIMINAL) 339).

(v) Where the period between issuance and publication of the proclamation and the specified date of hearing is less than thirty days, the accused cannot be declared a proclaimed person/offender and the proclamation has to be issued and published again. (See Dilbagh Singh v. State of Punjab (P&H) : 2015 (8) RCR (CRIMINAL) 166 and Ashok Kumar v. State of Haryana and another : 2013 (4) RCR (CRIMINAL) 550)

(vi) The Proclamation has to be published in the manner laid down in section 82(2) of the Cr.P.C., 1973. For publication the proclamation has to be first publicly read in some conspicuous place of the town or village in which the accused ordinarily resides; then the same has to be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides or to some conspicuous place of such town or village and thereafter a copy of the proclamation has to be affixed to some conspicuous part of the Court-house. The three sub-clauses (a)- (c) in section 82 (2)(i) of the Cr.P.C., 1973 are conjunctive and not disjunctive, which means that there would be no valid publication of the proclamation unless all the three modes of publication are proved. (See Pawan Kumar Gupta v. The State of W.B. : 1973 CriLJ 1368). Where the Court so orders a copy of the proclamation has to be additionally published in a daily newspaper circulating in the place in which the accused ordinarily resides. Advisably, proclamation has to be issued with four copies so that one each of the three copies of the proclamation may be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides, to some conspicuous place of such town or village and to some conspicuous part of the Courthouse and report regarding publication may be made on the fourth copy of the proclamation. Additional copy will be required where the proclamation is also required to be published in the newspaper.

(vii) Statement of the serving officer has to be recorded by the Court as to the date and mode of publication of the proclamation. (See Birad Dan v. State: 1958 CriLJ 965).

(viii) The Court issuing the proclamation has to make a statement in writing in its order that the proclamation was duly published on a specified day in a manner specified in section 82(2)(i) of the Cr.P.C., 1973. Such statement in writing by the Court is declared to be conclusive evidence that the requirements of Section 82 have been complied with and that the proclamation was published on such day. (See Birad Dan v. State: 1958 CriLJ 965).

(xi) The conditions specified in section 82(2) of the Cr.P.C., 1973 for the publication of a Proclamation against an absconder are mandatory. Any non-compliance therewith cannot be cured as an 'irregularity' and renders the Proclamation and proceedings subsequent thereto a nullity. (See Devendra Singh Negi alias Debu v. State of U.P. and another: 1994 CriLJ 1783 and Pal Singh v. The State: 1955 CriLJ 318).”

11. It is by now a settled principle of law that prior to issuing a proclamation under Section 82 Cr.P.C., the Court is required to record its satisfaction that the accused, against whom such proclamation is sought, is absconding or is concealing himself/ herself with the intention to evade arrest. This foundational and jurisdictional requirement is conspicuously absent in the present case. A perusal of the impugned order dated 12.07.2016 reveals that no such satisfaction has been recorded by the trial Court, nor does the records disclose any material which could justify an inference that the petitioner had absconded or was deliberately avoiding his appearance before the Court.

12. Having regard to the facts and circumstances noticed hereinabove, it is evident that the petitioner had left India on 14.10.2014, whereas the FIR came to be registered subsequently on 13.02.2015. Thus, the petitioner was admittedly not present in India at the time of registration of the FIR and continued to reside abroad when the process for securing his presence was initiated. The Cr.P.C contains specific provisions for execution of warrants and securing the presence of a person residing outside India through the competent authorities. However, the records do not indicate that any such statutory mechanism was resorted to for securing the presence of the petitioner. Instead, without exhausting the procedure available under law, proclamation proceedings under Section 82 Cr.P.C. were initiated, culminating in the impugned order dated 12.07.2016 declaring him a proclaimed person. In such circumstances, mere non-execution of the warrant, particularly when the petitioner was known to be residing abroad, could not ipso facto lead to an inference that he had absconded or was concealing himself with an intention to evade the process of law. Therefore, initiation of proclamation proceedings without first taking recourse to the procedure prescribed for securing the presence of a person residing abroad cannot be sustained.

13. In view of the above, this Court is of the considered opinion that no useful purpose would be served by permitting the criminal proceedings to continue against the petitioner, which are founded upon an illegal and procedurally flawed proclamation. It is, therefore, a fit and appropriate case for the exercise of inherent powers under Section 528 of the BNSS / Section 482 of the Cr.P.C., so as to prevent abuse of the process of law and to secure the ends of justice.

14. In view of the above findings, and considering the entirety of the facts and circumstances of the present case, the present petition is allowed. Consequently, the impugned order dated 12.07.2016 (Annexure P-6) passed by learned Sub Divisional Judicial Magistrate, Jagraon, vide which, petitioner was declared as proclaimed person, in case FIR No.03 dated 13.02.2015, registered under Sections 420 and 120-B of IPC (corresponding Sections 318(4) and 61(2) of BNS) registered at Police Station NRI, Ludhiana (Rural), District Ludhiana Rural and all consequential proceedings arising therefrom, are hereby quashed qua the petitioner.

15. There is no gainsaying that observations made in the instant order are limited to the issue in lis, namely, the petitioner being declared as Proclaimed person, and shall not be construed as observations on the merits of the case.

16. Pending application(s), if any, shall also stand disposed of accordingly.

Petition allowed.

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