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Sanjay Sarin v. State (Union Territory, Chandigarh) .
Factual and Procedural Background
Sanjay Sarin (the petitioner) moved under section 482 Cr. P.C. seeking quashing of the Magistrate's order dated 1.6.2011 (Annexure P24) which declared him a proclaimed offender. The underlying FIR (No. 131 dated 26.6.2010) was lodged by Smt. Payal Sarin at Police Station Sector 3, Chandigarh for offences alleged to be punishable under sections 406, 498-A, 506 read with section 120-B IPC. The Magistrate attempted service and process (including bailable and non-bailable warrants) to secure the petitioner's presence but could not trace him, whereupon a proclamation under section 82 Cr. P.C. was issued and published. The petitioner applied to the Magistrate seeking that proceedings to declare him a proclaimed offender not be proceeded with, asserting that he was not absconding but pursuing legal remedies (an application for anticipatory bail dismissed by the High Court and a Special Leave Petition pending in the Supreme Court). He also contended that the offences in the FIR are not among those listed in the amended section 82(4) Cr. P.C. The Magistrate rejected the petitioner's plea, recorded the serving constable's statement and declared the petitioner a proclaimed offender. The present petition challenges that declaration.
Legal Issues Presented
- Whether a person against whom a proclamation under section 82(1) Cr. P.C. has been published can be declared a "proclaimed offender" when the offence(s) alleged against him are not among those enumerated in amended section 82(4) Cr. P.C.?
- How should subsection (4) of section 82 Cr. P.C. be construed, particularly in light of section 174A IPC (which prescribes different punishments depending on the category of person against whom proclamation is issued)?
- Whether the declaration made by the Magistrate (declaring the petitioner a proclaimed offender) was legally sustainable, or whether the correct status for the petitioner is that of a "proclaimed person" subject to proceedings under section 83 Cr. P.C. and section 174A IPC?
Arguments of the Parties
Petitioner's Arguments
- The petitioner is not absconding but pursuing legal remedies: after the High Court dismissed anticipatory bail, a Special Leave Petition was filed before the Supreme Court which had not been heard due to summer vacation.
- The offences alleged (sections 406, 498-A, 506 read with 120-B IPC) are not included among the offences listed in amended section 82(4) Cr. P.C.; therefore he cannot be declared a "proclaimed offender" under that sub-section.
- Statutory interpretation: where statutory language is clear and unambiguous, it must be given effect (relying on State of U.P. v. Vijay Anand Maharaj, AIR 1963 SC 946).
- Section 174A IPC contemplates two categories of persons after proclamation under section 82(1) Cr. P.C.—those accused of offences listed in section 82(4) and those not—each attracting different punishments; therefore the label and consequences differ (i.e., "proclaimed person" v. "proclaimed offender").
- Co-ordinate bench decisions (Rahul Dutta v. State of Haryana; Satinder Singh v. State of U.T.) support the distinction and that a person accused of offences like those in the FIR can only be declared a "proclaimed person" and not a "proclaimed offender".
- The Magistrate's declaration was therefore contrary to law and liable to be set aside.
Respondent's Arguments (Union Territory / Complainant)
- Any person against whom a proclamation under section 82(1) Cr. P.C. has been published may be declared a proclaimed offender irrespective of the nature of the offence alleged.
- This position is supported by Co-ordinate Bench decisions in Rajiv v. State of Haryana and Smt Deeksha Puri v. State of Haryana.
- The list of sections in the provision indicates that "further enquiry" would be required for those specified offences, but it does not prevent declaration of a proclaimed offender in other cases.
- On facts, the petitioner delayed action (petition for anticipatory bail dismissed on 17.12.2010 and then six months of inaction before filing SLP), and nonetheless he was rightly declared a proclaimed offender by the Magistrate.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of U.P. v. Vijay Anand Maharaj, AIR 1963 SC 946 | When statutory words are clear, plain and unambiguous and reasonably susceptible of only one meaning, courts must give effect to that meaning irrespective of consequences. | The petitioner relied on this decision to support a literal construction of the amending provision (section 82(4) Cr. P.C.). The court records that principle as part of the petitioner's submissions on interpretation. |
| Rahul Dutta v. State of Haryana, 2012 (2) R.C.R. (Crl.) 585 | Distinction drawn between persons against whom proclamation is published but who are not accused of offences listed in section 82(4) Cr. P.C. (nomenclature: "proclaimed person") and those who are accused of offences listed ("proclaimed offender"). | The court accepted the fine distinction made in Rahul Dutta and relied on it to hold that the petitioner is a "proclaimed person" (not a "proclaimed offender") and is liable to proceedings under section 83 Cr. P.C. and section 174A IPC. |
| Satinder Singh v. The State of U.T., Chandigarh, 2011 (2) R.C.R. (Criminal) 89 | Held that an accused could not be declared a proclaimed offender for an offence not mentioned in section 82(4) Cr. P.C.; the order declaring him so was in contravention of subsection (4) of section 82 Cr. P.C. and liable to be quashed. | The court cited this decision as supportive authority for the petitioner's position that declaration as a proclaimed offender is improper where the offence is not among those in section 82(4). |
| Rajiv v. State of Haryana, Criminal Misc. No. Mviz. 30146 of 2011 (decided 12.12.2011) | Held that any person against whom proclamation under section 82(1) Cr. P.C. has been published can be declared a proclaimed offender irrespective of the offence committed (as presented by respondents). | The respondents relied on this decision to support maintaining the Magistrate's order; the petitioner argued it was per incuriam because the declaration in that case pre-dated the amendment to section 82(4). The court considered but rejected the absolute applicability of that view in the present facts. |
| Smt Deeksha Puri v. State of Haryana, 2013 (1) R.C.R. (Criminal) 159 (Criminal Misc. No. 359 of 2012, decided 16.10.2012) | Co-ordinate bench authority cited for the proposition that proclamation under section 82(1) may lead to declaration of proclaimed offender irrespective of the offence. | Relied upon by respondent counsel to support the Magistrate's declaration. The court recorded this reliance but ultimately framed the legal position differently in the present case. |
Court's Reasoning and Analysis
The court approached the issue primarily by interpreting the statutory scheme of chapter IV Cr. P.C. (specifically section 82) together with section 174A IPC. The court performed a simultaneous reading of section 82 Cr. P.C. and section 174A IPC and observed that this reading naturally divides persons against whom proclamation is issued under section 82(1) into two categories:
- Persons accused of offences not enumerated in section 82(4) Cr. P.C.; and
- Persons accused of offences listed in section 82(4) Cr. P.C.
The court noted that section 174A IPC prescribes different punishments for these two categories, indicating a legislative distinction between them. The court clarified that the "enquiry" referred to by respondent's counsel is not an enquiry after declaration of a proclaimed offender in the cases of offences in section 82(4), but an enquiry that must be made before declaring persons accused of those serious offences as proclaimed offenders. In other words, for offences enumerated in section 82(4), a preliminary enquiry is required prior to declaring a person a proclaimed offender.
The court accepted the "fine distinction" drawn in Rahul Dutta between the two categories by using the nomenclature "proclaimed persons" for the first category and "proclaimed offenders" for the second category. Applying that distinction to the present facts, since the offences alleged in FIR No. 131 (sections 406, 498-A, 506 read with 120-B IPC) are not included in the amended section 82(4), the petitioner could not properly be declared a "proclaimed offender." The court therefore held that the Magistrate's order declaring the petitioner a proclaimed offender could not be sustained.
However, the court also held that because a proclamation had been published against the petitioner under section 82(1), the petitioner remains a "proclaimed person" and may be proceeded against under section 83 Cr. P.C. (attachment of property) and section 174A IPC. The petitioner's challenge succeeded to the extent of quashing the declaration as a proclaimed offender; other statutory consequences flowing from the proclamation (attachment and penalties under section 174A) remain available to the prosecution.
Holding and Implications
Holding: The petition is allowed. The order dated 1.6.2011 declaring the petitioner a proclaimed offender is not sustainable and is set aside to the extent of that declaration; however, the petitioner remains a "proclaimed person" against whom proclamation stands published and who is liable to proceedings under section 83 Cr. P.C. and section 174A IPC.
Implications:
- Direct effect on the parties: The Magistrate's declaration of the petitioner as a proclaimed offender is quashed; the proclamation itself remains published and statutory remedies such as attachment of property under section 83 Cr. P.C. and proceedings under section 174A IPC may be pursued against the petitioner.
- Broader implications: The court applied and relied on existing co-ordinate-bench decisions (notably Rahul Dutta and Satinder Singh) to distinguish between "proclaimed person" and "proclaimed offender" based on whether the alleged offence is listed in section 82(4). The opinion does not state that it is laying down a new precedent beyond applying and endorsing that distinction in the present facts.
Order pronounced: "Petition allowed." (Final operative line in the reported opinion.)
Vijender Singh Malik, J.:— Sanjay Sarin, the petitioner has brought this petition under the provisions of section 482 Cr. P.C for quashing of order dated 1.6.2011 (Annexure P24) passed by learned Judicial Magistrate 1st Class, Chandigarh declaring the petitioner a proclaimed offender.
2. Smt. Payal Sarin lodged FIR No. 131 dated 26.6.2010 at Police Station Sector 3, Chandigarh for an offence punishable under sections 406, 498-A, 506 read with section 120-B of Indian Penal Code. During the course of the proceedings of the case, presence of Sanjay Sarin, the husband of Payal Sarin was sought to be secured, but he was not traceable. When the processes of bailable warrants and non-bailable warrants could not succeed to secure the presence of the petitioner, the Magistrate issued proclamation under section 82 Cr. P.C The petitioner then moved an application before the Magistrate with a prayer not to proceed with the proceedings of declaring him a proclaimed offender at that stage. Briefly stated, he claimed in his application that he is not absconding but is exhausting his le gal remedies. According to him, after dismissal of his application for anticipatory bail by the High Court, he has filed a plea for anticipatory bail before Hon'ble Apex Court and the same had not come up for hearing on account of the on going summer vacation there. He also claimed that sections 406, 498-A, 506 read with section 120-B IPC, for which he has been proceeded against, did not fall within the amended provisions of section 82(4) Cr. P.C and, therefore, he could not be declared a proclaimed offender. Taking reply thereto, the Magistrate rejected his plea and since proclamation already stood published against the petitioner, he recorded statement of the serving constable and declared the petitioner a proclaimed offender.
3. Learned senior counsel for the petitioner has submitted that FIR No. 131 dated 26.6.2010 registered at Police Station Sector 3, Chandigarh is for an offence punishable under sections 406, 498-A, 506 read with section 120-B IPC. Ac cording to him, none of these sections find a mention in the amended provisions of section 82(4) Cr. P.C According to him, under section 82 Cr. P.C though a proclamation can be issued against a person absconding, yet a person who does not appear despite publication of the proclamation can be declared a proclaimed offender only if he is 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 IPC. According to him, a person, who is not accused of an offence under the aforesaid sections, cannot be declared a proclaimed of fender and the only proceeding that can be taken against him after publication of the proclamation is that his property can be attached under section 83 Cr. P.C
4. Coming to the interpretation to be given to sub section (4) of section 82 Cr. P.C learned senior counsel has submitted that when the words of a statute are clear, plain and unambiguous and reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences. He traced the law on the point from a decision of Hon'ble Supreme Court of India in State of U.P v. Vijay Anand Maharaj, AIR 1963 SC 946 to support himself on this point. According to him, another principle to be applied while construing a provision in the amending Act is that it should be construed in such a manner which does not result in running it inefficacious.
5. Learned senior counsel for the petitioner has referred to the provisions of section 174 A IPC to support his submission that a person can be declared proclaimed offender only if he is an accused of an offence punishable under sections mentioned in section 82(4) Cr. P.C and the other persons who do not fall in this provision, would be the persons against whom proclamation has been published under section (1) of section 82 Cr. P.C’ According to him, section 174 A clearly makes out two categories of persons against whom proclamation can be published under section 82(1) Cr. P.C’ and prescribes different punishments for the two categories. According to him, for the person, who failed to appear at the specified place and the specified time as required by a proclamation published under sub section (1) of section 82 Cr. P.C the punishment prescribed is imprisonment for a term which may extend to 3 years or with fine or with both. According to him, however, if such a person, against whom declaration of proclamation has been made under sub section (4) of section 82 Cr. P.C then he shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to fine. He has submitted that this section itself makes it clear that if proclamation is issued against a person under section 82(1) Cr. P.C declaration of proclaimed offender shall be made only with regard to the persons who are accused of an offence punishable under the sections mentioned in sub section (4) of section 82 Cr. P.C’ In support of his submission, learned senior counsel for the petitioner has cited before me a Single Bench decision of this court in Rahul Dutta v. State of Haryana, 2012 (2) R.C.R (Crl.) 585. In this case, nomenclature for the person against whom proclamation has been published, but is not accused of an offence punishable under section 82(4) Cr. P.C is of proclaimed person. It is laid down in this decision that a person who is evading his arrest in a case for an offence punishable under sections 406, 498-A, 506 read with section 120-B IPC can be declared a “proclaimed person” and not a “proclaimed offender”. He has also cited another judgment of a Co-ordinate Bench of this court in Satinder Singh v. The State of U.T, Chandigarh, 2011 (2) R.C.R (Criminal) 89. In the said case for an offence punishable under sections 279 and 337 IPC, the accused was declared a proclaimed offender. It has been held that the accused could not be declared a proclaimed offender for an offence which is not mentioned in section 82(4) Cr. P.C’ The aforesaid law appears in para No. 4 of the judgment, which is as under:—
“4. The only contention raised by learned counsel for the petitioner is that the Magistrate could not have declared the petitioner as proclaimed offender as he is not accused of any of offences specified under sub section 4 of section 82 Cr. P.C’ and as such he could be declared proclaimed offender. So far as the order declaring the petitioner otherwise as proclaimed offender is concerned, the same is in contravention to sub section 4 section 82 Cr. P.C and thus liable to be quashed.”
6. Examining the issue from another angle, learned senior counsel for the petitioner has submitted that the responsibility to arrest the persons who have been declared proclaimed offenders is heavy upon the police officers under chapter IV Cr. P.C’ and only serious offences are now grouped under section 82(4) Cr. P.C’ so that the heavy duty could be limited to arrest only those persons who have been declared proclaimed of fenders. According to him, taken in the light of the aforesaid discussion, the declaration of the petitioner a proclaimed offender vide the order dated 1.6.2011 (Annexure P24) is against the provisions of law and, therefore, liable to be set aside.
7. Learned standing counsel for Union Territory, Chandigarh assisted by learned counsel for the complainant has submitted, on the other hand, that any person against whom proclamation under section 82(1) Cr. P.C’ has been published, can be declared a proclaimed offender irrespective of the offence committed. According to him, this view is supported by two judgments of Co-ordinate Benches of this court in Rajiv v. State of Haryana, Criminal Misc. No. Mviz., 30146 of 2011, decided on 12.12.2011 and Smt Deeksha Puri v. State of Haryana, 2013 (1) R.C.R (Criminal) 159 : Criminal Misc. No. 359 of 2012, decided on 16.10.2012 He has submitted that the petitioner has been rightly declared a proclaimed offender by the Magistrate and the order does not justify interference with the same.
8. Learned counsel for the complainant assisting learned counsel for Union Territory, Chandigarh has submitted that sections have been mentioned in this provision only with a view to lay down that further enquiry would be required in those cases. According to him, this further enquiry would not be required in relation to the cases of the persons accused of offences other than those mentioned in sub-section (4) of section 82 Cr. P.C’ Learned counsel for the complainant has further submitted that petition for anticipatory bail of the petitioner was dismissed on 17.12.2010 According to him, for six months, he did not do anything and then filed SLP. According to him, he now claims that he could not be declared a proclaimed offender.
9. Replying the aforesaid submissions, learned senior counsel for the petitioner has submitted that the decision in Rajiv's case (supra) is per incuriam because the matter under consideration in that case was declaration of a proclaimed offender vide order dated 23.3.2002, much earlier to the date of amendment of section 82(4) Cr. P.C’
10. A simultaneous reading of section 82 Cr. P.C’ and 174 A IPC would clearly point to the situation where the persons against whom proclamation is issued under section 82(1) Cr. P.C’ would be divided into two categories. The first category would be of the persons who are accused of an offence other than the one mentioned in section 82(4) Cr. P.C’ and the second category of the persons accused of an offence mentioned in section 82(4) Cr. P.C’ For these two categories of persons, punishment is differently provided by section 174 AIPC.
11. The enquiry, about which learned counsel for the complainant has submitted, is not an enquiry to be made in case of a person accused of an offence punishable under the sections of Indian Penal Code mentioned in sub section (4) of section 82 Cr. P.C after declaring him a proclaimed offender. This enquiry is to be made in respect of the persons accused of those offences before declaring them proclaimed offenders. This is an enquiry which precedes the declaration of a person accused of an offence under the aforesaid sections a proclaimed offender. A fine distinction has been made in Rahul Dutta's case (supra) between the aforesaid two categories by giving them the names “proclaimed persons” and “proclaimed offenders”. In these circumstances, although the impugned order declaring the petitioner a proclaimed offender cannot be sustained, however, he is a proclaimed person against whom proclamation stands published and he is liable to be proceeded under section 83 Cr. P.C’ by way of attachment of his property as also under section 174A IPC. The petition is allowed in the above terms.
12. Petition allowed.
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