Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2076 (HP)

Balbir Singh @ Rinku v. Yashwant Pirta

2018-11-26

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The petitioner is the accused in a complaint instituted by the respondent under Section 138 of the Negotiable Instruments Act wherein proclamation has been directed to be issued under Section 82 Cr.P.C. for declaring him as a proclaimed offender vide order dated 23.06.2018 (for short impugned order). 2. Even though the prayer made in this petition appears to be innocuous, however, nonetheless, the moot question remains whether such a petition is maintainable. 3. 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. It is more than settled that the aforesaid provisions i.e. Section 82 were enacted to secure the presence of the accused and once the said purpose is achieved, even if the property is attached, then the proceedings stand withdrawn. It is more than settled that the aforesaid provisions i.e. Section 82 were enacted to secure the presence of the accused and once the said purpose is achieved, even if the property is attached, then the proceedings stand withdrawn. Reference in this regard can conveniently be made to the judgment of the Hon’ble Supreme Court in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and others (2008) 4 SCC 649 , more particularly para 32 thereof, which reads thus: “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 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. Complainant should not ordinarily derive any benefit there from. 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.” 5. Thus, it is absolutely clear that instead of invoking the jurisdiction of this Court under Section 482 Cr.P.C., the petitioner was required to surrender before the learned trial Court and obtain bail. Once he had surrendered then obviously the standing warrants would be cancelled and he no longer would be an absconder. 6. In view of the aforesaid discussion, it is manifestly clear that the present petition is totally misconceived and is accordingly dismissed as such. However, this order would not prevent the petitioner from surrendering before the trial Court and obtaining bail in accordance with law. 7. The petitioner is disposed of in the aforesaid terms, so also the pending applications if any.