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2012 DIGILAW 1413 (PNJ)

Arpit v. State of Haryana

2012-10-05

M.M.S.BEDI

body2012
JUDGMENT Mr. M.M.S. Bedi, J.: (Oral) - Notice of motion to Advocate General, Haryana. 2. On the asking of the Court, Ms.Shalini Attri, DAG, Haryana, accepts notice. Copy given. 3. The grievance of the petitioner is that he is being tried for offences under Sections 342, 365, 34 IPC. The said offences do not fall under Section 82 (4) Cr.P.C. as such the order declaring the petitioner as a proclaimed offender is not sustainable. 4. I have heard learned counsel for the petitioner. It is apparent that the petitioner is being tried for offence under Sections 342, 365, 34 IPC alongwith his co-accused. On account of his non-appearance before the Court, after making an attempt to secure his presence, the proclamation has been issued under Section 82 (1) Cr.P.C. and as per provisions of Section 82 (3) Cr.P.C., there has been a conclusive evidence that publication was in accordance with provisions of Section 82 (2) Cr.P.C. Since the offences under Sections 342, and 365 IPC are not included in Section 82 (4) Cr.P.C., the order declaring the petitioner as a ‘proclaimed offender’, is not sustainable in the eyes of law and is hereby set aside. However, it is made clear that in view of proclamation having been issued in accordance with law and petitioner having not appeared before the Court, he, despite not being a proclaimed offender will be deemed to be a proclaimed accused liable to be arrested and produced in the Court. The order of proclamation will remain operative till petitioner appears before the Court. It will be open to the competent Court to even launch prosecution under Section 174 (A) IPC. 5. With the above observations the petition is allowed and the order declaring the petitioner as proclaimed offender is set aside but his status as a proclaimed accused or a proclaimed person will continue to be operative for appearance before the Court. 6. Counsel for the petitioner, at this stage, has submitted that the petitioner may be permitted to appear before the Court concerned and an order should be passed that he would be released on bail on his doing so. 7. On asking the Court, counsel for the petitioner informs that the petitioner had moved a petition under Section 438 Cr.P.C. and the same has been dismissed prior to the passing of order declaring the petitioner as a proclaimed offender. 7. On asking the Court, counsel for the petitioner informs that the petitioner had moved a petition under Section 438 Cr.P.C. and the same has been dismissed prior to the passing of order declaring the petitioner as a proclaimed offender. I am afraid that in the exercise of powers under Section 482 Cr.P.C. the specific powers under Section 438 Cr.P.C. cannot be exercised. 8. Petitioner is granted liberty to avail the remedy available to him under Section 438 Cr.P.C. The order declaring him proclaimed offender, however, will not stand in his way to avail the remedy under Section 438 Cr.P.C. ---------0.B.S.0------------