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2000 DIGILAW 26 (PNJ)

Pritpal Singh v. State Of Punjab

2000-01-11

K.S.KUMARAN

body2000
Judgment K.S.Kumaran, J. 1. Heard counsel for both the sides. 2. This is a petition under Section 439 read with Section 482 Cr. P.C. for granting bail to the petitioner in F.I.R. No. 196 dated 21.12.1989 registered at Police Station Kotwali, Kapurthala, under Sections 395, 447, 448 I.P.C. etc. and for setting aside the order dated 24.2.1994 cancelling the bail bonds of the petitioner as also the order dated 18.8.1994 declaring the petitioner as proclaimed offender passed by the learned Chief Judicial Magistrate, Kapurthala. 3. The learned counsel for the petitioner contends that the petitioners who is the 25th accused in the case, was released on bail, and that on 30.1.1992 the learned Additional Chief Judicial Magistrate, Kapurthala, had passed the order that the challan had not been presented and presence of all the accused exempted till the challan is presented. The learned counsel for the petitioner further contends that the challan was filed on 31.8.1993 and the petitioner has been appearing in the Court. According to him on 11.1.1994 the presence of the petitioner was exempted by the Chief Judicial Magistrate, and the case was adjourned to 24.2.1994, but on 24.2.1994, the learned Chief Judicial Magistrate, himself interpreted his earlier order dated 11.1.1994 as if exemption was granted to the petitioner for 11.1.1994 only, cancelled his bail and surety bonds and issued non-bailable warrants for the production of the petitioner. The case was adjourned to 17.3.1994, on which date the warrants had not been received back and again non-bailable warrants for arrest of petitioner were issued for 2.4.1994. The learned counsel for the petitioner also contends that on 18.8.1994, the statement of the serving constable regarding effecting of the proclamation against the petitioner was recorded, and the. petitioner was declared as a proclaimed offender. 4. The learned counsel for the petitioner also contends that the notice under Section 82 Cr. P.C. was issued on 16.4.1994 by the Chief Judicial Magistrate, directing the petitioner to appear within 30 days from that date, and that was illegal since the petitioner had not been given 30 clear days. He also contends that the petitioner is living in Sultanpur Lodhi, whereas the petitioner has been shown as a resident of Bassowal of Police Station Sultanpur and therefore, there is no proper notice before declaring him as a proclaimed offender. 5. He also contends that the petitioner is living in Sultanpur Lodhi, whereas the petitioner has been shown as a resident of Bassowal of Police Station Sultanpur and therefore, there is no proper notice before declaring him as a proclaimed offender. 5. Therefore, the petitioner has prayed that he should be released on bail after setting aside the order of cancelling his bail and declaring him as a proclaimed offender. 6. The petitioner has also reproduced the order dated 11.1.1994 granting exemption to the petitioner. The relevant portion of the order is as follows : "Personal appearance of accused No. 35 and 36 and 37 already exempted and personal appearance of accused No. 25, 26, 29 and 30 exempted today." 7. Pointing out the language of the above order, learned counsel for the petitioner contends that the Court has not exempted the appearance of the petitioner for 11.1.1994 only and, if that be so, the Court would have stated specifically and, therefore, personal appearance of the petitioner had been exempted till further orders. 8. The learned counsel for the petitioner also contends that this order has been mis-interpreted on 24.2.1994 when the bail and surety bonds of the petitioner were cancelled. 9. I am unable to accept this contention put forward by the learned counsel for the petitioner. The personal appearance of any accused is exempted by the Court on the advance application filed by the accused himself, or if he is represented by a counsel then by his counsel by filing an application in advance or on the date of the hearing. The order dated 11.1.1994 reproduced by the petitioner shows that the petitioner who is the 25th accused was represented by counsel. If the intention of the petitioner was to get exemption from personal appearance till further orders, the petitioner would have made a prayer to that effect in his application. The petitioner has not produced the copy of that application to show the nature of the prayer. Of course, the order of the learned Chief Judicial Magistrate, dated 11.1.1994 says that his personal appearance is exempted today. It does not say that his personal appearance is exempted for today alarm. At the same time, it does not also say that the petitioners personal appearance is exempted till further orders. Of course, the order of the learned Chief Judicial Magistrate, dated 11.1.1994 says that his personal appearance is exempted today. It does not say that his personal appearance is exempted for today alarm. At the same time, it does not also say that the petitioners personal appearance is exempted till further orders. If the petitioner had produced the copy of the application for exempting his personal appearance, at least that would be of help to find out whether the contention put forward by the petitioner can be accepted. When there is no order that the personal appearance of the petitioner is exempted till further orders, the contention of the learned counsel for the petitioner cannot be accepted. 10. Further as pointed out already, the petitioner was represented by a counsel before the Chief Judicial Magistrate, the case was adjourned from 11.1.1994 to 24.2.1994. Even if it is taken for the sake of arguments that the personal appearance of the petitioner had been exempted till further orders, the counsel for the petitioner should have appeared on 24.2.1994 and taken note of further proceedings. But, the order dated 24.2.1994 reproduced by the petitioner does not show that the counsel for the petitioner had even appeared. It is on that date that the bail bond of the petitioner was cancelled and non-bailable warrant was ordered to be issued against the petitioner. Case was being adjourned from time to time and on 18.8.1994, the petitioner was declared as proclaimed offender. From 11.1.1994 to 18.8.1994, the counsel for the petitioner in the trial Court does not appear to have taken any steps against the orders passed against the petitioner. As pointed out already, he should have appeared in the Court on all the dates and taken note of the proceedings of the Court. If he had done so, then he would have known about the non-bailable warrants issued against the petitioner and the petitioner would have been asked to appear in the Court and explain his position if he had mis-understood the scope of order dated 11.1.1994. That does not appear to have done. The petitioner was arrested five years later i.e. on 14.7.1999 and, until then, nothing has been done by the petitioner even to find out as to what has happened to the case. That does not appear to have done. The petitioner was arrested five years later i.e. on 14.7.1999 and, until then, nothing has been done by the petitioner even to find out as to what has happened to the case. Therefore, in these circumstances, I am of the view that the contention of the learned counsel for the petitioner cannot be accepted. Therefore, I find that there are no grounds for granting bail to the petitioner who had mis-used the concession of bail by not appearing in court from 24.2.1994 onwards. 11. So far as the notice under Section 82 Cr.P.C. is concerned, obviously the petitioner has been asked to appear within 30 days from the date of the order dated 16.4.1994 (Annexure P-3), Section 82 Cr.P.C. provides that the written proclamation should be published requiring accused to appear at a specified time which is not less than 30 days from the date of publishing the proclamation. Therefore, the proclamation should give 30 clear days, which has not been granted to the accused. So the proclamation is not proper and legal. Consequently the declaration of the petitioner as a proclaimed offender cannot also be sustained. In this connection, the learned counsel for the petitioner is also supported by the authority of this Court in Pal Singh v. The State (A.I.R. 1995 Punjab 18) : [1995(3) All India Criminal Law Reporter 199 (Pb. & Hry.)] and S. Ajit Singh v. State of Punjab (1977 P.L.J. (Crl.) 18). But, in spite of the fact that the declaration of the petitioner as a proclaimed offender is not valid, I am of the view that the petitioner is still not entitled to be released on bail as he has mis-used the concession of bail. Resultantly while declaring that declaration of the petitioner as a proclaimed offender is unsustainable, the request of the petitioner for being released on bail is declined. 12. The petition, in so far as the prayer for bail is concerned is dismissed.