DALJIT SINGH v. THE STATE OF HARYANA

same offence; and whether the subsistence of the proclamation under Section 82 of Cr.P.C. is necessary for the authorities to proceed against an accused against whom such a proclamation stands issued, under Section 174A of the Indian Penal Code, 1860².

2. The facts which gave rise to the question as above, in brief, are:

2.1 The Appellant ran a business concern which was awarded a contract for '8-Laning' of a National Highway (NH-1) within Delhi, by the National Highways Authority of India³.

2.2 In furtherance of such a contract, Respondent No. 2⁴approached a company by the name of M/s Bhola Singh Jaiprakash Construction Ltd. for stone crushing. On mutually agreed specifications, it is also part of the agreement that the same would be supplied to the construction site. In connection thereto, cheques by way of security, were also issued. The work under the agreement was also executed but allegedly did not meet the specifications, hence resulting in a dispute.

2.3 The NHAI terminated the Appellant's contract on 13^thJanuary, 2009 and accordingly cashed the bank guarantee furnished. It is alleged that the cheques issued by way of security to Respondent No. 2 were misplaced and the new cheque worth ₹10 Lacs given as the payment was duly encashed on 16^thOctober, 2009.⁵Subsequently on 30^thNovember, 2009 cheque issued

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from the bank guarantee account as security was also encashed despite having encashed the subsequent cheque issued as final payment.

2.4 The Complaint case, in connection with the unclaimed cheque, was filed on 8^thJune, 2010, in which summons were issued on 17^thAugust, 2010. Thereafter, the case was allegedly transferred out of Bhiwani, and eventually back to its jurisdictional Court. Notice upon non-appearance of the Appellant, direction to issue written proclamation under Section 82 Cr.P.C. with a further direction to the Appellant to appear before the Court on 28^th November, 2016 was issued on 15^thOctober, 2016. On 28^thNovember, 2016, the order declaring the Appellant and another director of the company as proclaimed offenders, was issued⁶. All such proceedings and orders are subject matter of challenge in this Appeal.

2.5 This other Director, RP Singh preferred quashing petitions before the High Court which came to be eventually dismissed.

2.6 The Appellant was arrested under the PO Order on 19^thDecember, 2022 and released on bail the same day, by the competent Court. He was raided by the police again, in connection with an FIR⁷of similar nature.

2.7 The Quashing Petition in which the impugned order came to be passed was filed on 31^stJanuary, 2023. The same was dismissed on 2^ndJune, 2023 by the impugned order and judgment.

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3. The impugned order dismissed the Appellant's petition under Section 482, Cr.P.C., with reference to an earlier judgment of the Court wherein it had been held that if a person had been declared a proclaimed offender, such a petition by him would not be maintainable. It was observed that the validity of such a proclamation is also to be raised before the Court which issued the proclamation.

4. We have heard the learned counsel appearing for the parties. It is the admitted position at the Bar that in subsequent developments after the filing of the special leave petition, the Appellant stands exonerated in the germane proceedings under section 138 of the Negotiable Instruments Act, 1881. It is against this backdrop that the questions identified in paragraph 1 of this judgment, arise for consideration.

5. Section 82 of the Cr.P.C. runs thus:

"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

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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."

6. Let us now consider some of the pronouncements of this Court to appreciate its import.

6.1 In Kartarey v. State of U.P.⁸ the meaning of the word 'absconder' was recorded as follows:-

"43. …To be an "absconder" in the eye of law, it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade the process of law, even if the hiding place be his own home…"

Further, in Jayendra Vishnu Thakur v. State of Maharashtra⁹, it was observed:-

"40. The term "absconding" has been defined in several dictionaries. We may refer to some of them:

Black's Law Dictionary — To depart secretly or suddenly, especially to avoid arrest, prosecution or service of process. P. Ramanatha Aiyar — primary meaning of word is "to hide".

Oxford English Dictionary — "To bide or sow away".

Words and Phrases — "clandestine manner/intent to avoid legal process".

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6.2 The object and purpose of Section 82, Cr.P.C. was taken note of in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel¹⁰. S.B Sinha J., writing for the Court held as under:-

"32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the court and the standing warrants are cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. The complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject-matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon."

(Emphasis Supplied)

6.3 The evidentiary value of a person absconding has been discussed in

Raghubir Singh v. State of U.P.,¹¹ in the following terms:

"11. …the act of absconding, even if proved, is normally considered a somewhat weak link in the chain of circumstances utilised for establishing the guilt of an accused person. If the evidence of eye- witnesses is held trustworthy then the act of absconding even if established would serve only to further fortify the satisfaction of the court with respect to the guilt of the accused concerned, for, even an innocent person may well try to keep out of the way if he learns of his false implication in a serious crime reported to the police. ..."

(Emphasis Supplied)

6.4 In Rahman v. State of U.P.,¹² it was held that absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may

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abscond on account of fear of being involved in the offence or for any other allied reason. The observations in Matru v. State of U.P.,¹³ are instructive.

"19. … Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. …"

(Emphasis Supplied)

6.5 The notice under Section 41 Cr.P.C., must have necessarily been issued prior to the notice and declaration under Section 82, and attachment under its subsequent sections. In State v. Dawood Ibrahim Kaskar¹⁴, it was held: -

"22. … Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person "against whom a warrant has been issued by it". In other words, unless the Court issues a warrant the provisions of Section 82, and the other sections that follow in that part, cannot be invoked in a situation where in spite of its best efforts the police cannot arrest a person under Section 41."

6.6 Numerous judgments of this Court which concern this Section, have been about bail. Illustratively, Sureshchandra Ramanlal v. State of Gujarat¹⁵, State of M.P. v. Pradeep Sharma¹⁶, Prem Shankar Prasad v. State of Bihar¹⁷and Srikant Upadhyay v. State of Bihar¹⁸. However, we

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are not concerned with bail in the present matter, so it is not necessary to go into them.

7. Having considered the law as laid down in the judgments above in respect of Section 82, at this stage we must also consider Section 174A IPC which lays down penal consequences for intentionally evading the process under Section 82 Cr.P.C. It reads as under :-

"174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.—

Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section

(1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."

Now, let us consider the second question arising in this appeal, in reference to this provision is, whether the subsistence of the proclamation u/s 82 Cr.PC is necessary for the authorities to proceed against the accused person u/s 174A IPC. In other words, whether Section 174A IPC can stand independent of the proclamation u/s 82 Cr.P.C. or not?

7.1 The purpose of Section 82 Cr.P.C., as can be understood from a bare reading of the statutory text is to ensure that a person who is called to appear before a Court, does so. This Section appears as part of Chapter VI which is titled 'Process to Compel Appearance'. Section 83 to 90 provide for the additional method of attachment of property to the end of securing appearance. Necessarily then some or the other proceeding has to be

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ongoing for which the presence of such person is necessary. The words of the Section dictate that it can be only issued in respect of a person against whom a warrant has been issued. Neither a warrant nor proclamation subsequent can be conjured up out of thin air.

7.2 Section 174A IPC, inserted by the 2005 Amendment to the Indian Penal Code inserts a substantive offence, prescribing punishment of three years or fine or both when such proclamation is issued under Section 82(1) Cr.P.C. and, seven years and fine if the said proclamation is under Sub- section (4) thereof. The object and purpose of this Section is to ensure penal consequences for defiance of a Court order requiring a person's presence.

7.3 Now, what happens if the status under Section 82 Cr.P.C. is nullified i.e., the person subjected to such proclamation, by virtue of subsequent developments is no longer required to be presented before a Court of law. Then, can the prosecution still proceed against such a person for having not appeared before a Court during the time that the process was in effect. The answer is in the affirmative. We say so for the following reasons:-

(i) The language of Section 174A, IPC says "whoever fails to appear at the specified place and the specified time as required by proclamation…". This implies that the very instance at which a person is directed to appear, and he does not do so, this Section comes into play;

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(ii) What further flows from the language employed is that the instance of non-appearance becomes an infraction of the Section, and therefore, prosecution therefor would be independent of Section 82, Cr.P.C. being in effect;

(iii) So, while proceedings under Section 174A IPC cannot be initiated independent of Section 82, Cr.P.C., i.e., can only be started post the issuance of proclamation, they can continue if the said proclamation is no longer in effect.

(iv) We find that the Delhi High Court has taken this view, i.e., that Section 174A, IPC is a stand-alone offence in Mukesh Bhatia v. State (NCT of Delhi)¹⁹; Divya Verma v. State²⁰; Sameena & Anr. v. State GNCT of Delhi & Anr.²¹ For the reasons afore-stated, we agree with the findings made in these judgments/orders. At the same time, it stands clarified that we have not commented on the merits of the cases.

(v) Granted that the offence prescribed in Section 174A IPC is indeed stand-alone, given that it arises out of an original offence in connection with which proceedings under Section 82 Cr.P.C. is initiated and in the said offence the accused stands, subsequently, acquitted, it would be permissible in law for the Court seized of the trial under such offence, to take note of such a development and treat the same as a ground to draw the proceedings to a close, should such a prayer be made and the circumstances of the case so warrant.

8. In conclusion, we hold that Section 174A IPC is an independent, substantive offence, that can continue even if the proclamation under Section 82, Cr.P.C. is extinguished. It is a stand-alone offence. That being the position of

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law, let us now turn to the present facts. As we have already noted supra, the Appellant stands acquitted of the main offence.

9. The record speaks to the fact that an FIR under Section 174A IPC was registered against the Appellant, in connection with which, he was released on bail by the Judicial Magistrate, First Class, Bhiwani, vide order dated 19^th December, 2022. It reads: -

"Dinesh Kumar Vs. R.P. Singh etc. BA-3034-2022

COMA-1664-2013

Present: Complainant in person with Sh. Raj kumar Gugnani, Advocate.

Sh. Devender Singh Tanwar, counsel for the accused Daljeet Singh. Reply to the bail application not filed. Brief arguments on the bail application heard. At this juncture a compromise has been effected wherein the matter has been settled for 9.5 lakh out of which Rs. 1 lakh have been paid to the complainant and another Rs. 1 lakh shall Be transferred in his bank account today. The nephew and son of the accused have further suffered a statement that the remaining 7.5 lakh shall be paid to the complainant on or before the adjourned date of hearing. The complainant have suffered a statement and agrees with the said arrangement. In the given circumstances when the matter has been settled and even otherwise also the proceedings had been stayed by Hon'ble High court way back on 07.02.2017 and which have only been dismissed on 15.11.2022 after which, the accused was arrested on 17.12.2022. he is admitted to bail subject to the following conditions.

1. He shall furnish personal and surety bonds in the sum of Rs.50,000/-along with an FDR In the sum of Rs. 50,000/-

2. The present place of residence as well as office of the accused be furnished by way of affidavit through next of kin.

3. That he shall come present in Court in person on all dates of hearing, failing which his bail shall be cancelled, subject to just exceptions.

Requisite bonds, affidavit and FDR furnished. Accepted and atlested. Additional affidavit also filed by surety that he shall not en cash the FDR without the permission of the Court and that the R.C. submitted is original which he shall not sell without the permission of The Court Release Warrant be issued forth with.

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Adjourned to 21.01.2023 for payment else for further proceedings."

(emphasis supplied)

10. None has disputed the above or brought to the attention of this Court such a fact that the said arrangement has not been complied with.

11. The Appellant has been acquitted which means that there is no case for which his presence is required to be secured. Resultantly, the appeal is allowed. In the attending facts and circumstances of the case, i.e. that the original offence pertains to the year 2010; the money subject matter of dispute stands paid, the judgment of the High Court with the particulars as mentioned in paragraph 1 of this judgment, stands quashed and set aside. All criminal proceedings, inclusive of the FIR under Section 174A IPC, shall stand closed. The Appellant's status, as a 'proclaimed person' stands quashed.

Pending Application(s) if any, stand disposed of.

…….………………..J.

(C.T. RAVIKUMAR)

….…………………..J.

(SANJAY KAROL)

New Delhi; 2^nd January, 2025.

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