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2024 DIGILAW 251 (HP)

Rakesh Chauhan v. State of H. P.

2024-04-09

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. The instant petition, has been filed under Section 482 of the Code of Criminal Procedure [referred to as Cr.P.C.] against the orders dated 30.11.2023 [Annexure -A] and 08.02.2024 [Annexure-B] [referred to as the Impugned Orders] passed by the Learned Additional Chief Judicial Magistrate, Court No.III, Shimla, in Criminal Case No.598 of 2019, titled as State Versus Rakesh Chauhan registered under Sections 279, 337 and 338 of the Indian Penal Code in FIR No.69 of 2019 registered at Police Station, Shimla [East]. 2. The background facts of the case are that on the basis of FIR No.69 of 2019, referred to above, the investigation was undertaken by the Police and consequent upon the presentation of the police report/challan, the proceedings i.e. Criminal Case No.598 of 2019, were initiated before the Learned Judicial Magistrate, 1st Class, Court No.3, Shimla. It is submitted that on issuance of process, the petitioner appeared before the Learned Judicial Magistrate, First Class, Court No.3, Shimla, from time to time but, the matter was then transferred to the Learned Judicial Magistrate, First Class, Court No.5, Shimla on 26th July, 2023. 3. Records reveal that on 4th September, 2023, the case [Criminal Case No.598 of 2019] was transferred from the Court of Learned Judicial Magistrate, First Class, Court No.5, Shimla to the Court of Learned Additional Judicial Magistrate, Court No.3, Shimla [referred to as the Trial Court, for this petition], by way of transfer. The Learned Trial Court, Additional Chief Judicial Magistrate, Court No.3, Shimla, issued notice to the petitioner-accused as well as his counsel on 07.10.2023. On 07.10.2023, the Presiding Judge was not present/was on leave and the matter was listed for 30.11.2023. Even on 30.11.2023 [Annexure-A] since the notice of appearance was not served, therefore, there was no occasion for the petitioner-accused to appear and ignoring these facts, the NBWs were issued for 17.01.2024. The case records reveal that on 17.01.2024, the NBWs issued on 30.11.2023 still remain unexecuted and thereafter on 17.01.2024, fresh NBWs were issued, returnable for 08.02.2024. 4. Notably on 17.01.2024 though the fresh NBWs were issued by the Learned Trial Court i.e. Additional Chief Judicial Magistrate, Court No.3, Shimla, which were received back unexecuted, yet, the Learned Trial Court has issued an order on 08.01.2024 [Annexure-B] initiating the proceedings, under Section 82, of the Code of Criminal Procedure [referred to as Cr.P.C.] against the petitioner herein. 5. Notably on 17.01.2024 though the fresh NBWs were issued by the Learned Trial Court i.e. Additional Chief Judicial Magistrate, Court No.3, Shimla, which were received back unexecuted, yet, the Learned Trial Court has issued an order on 08.01.2024 [Annexure-B] initiating the proceedings, under Section 82, of the Code of Criminal Procedure [referred to as Cr.P.C.] against the petitioner herein. 5. Heard Mr. I.S. Chandel, learned counsel for the petitioner and Mr. Tejasvi Sharma, Learned Additional Advocate General. 6. It is relevant to have a recap of the provisions of Section 82 of the Code of Criminal Procedure, which read 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. (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) 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. (5) The provisions of sub -sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).] 7. In the peculiar facts of the instant case, this Court, at this stage of the instant proceedings, is inclined to dispose of the instant petition, for the following reasons: - 7(i). Case records reveal that the instant case No.598 of 2019 was transferred from the Court of Learned Judicial Magistrate, First Class, Court No.5, Shimla to the Court of Additional Chief Judicial Magistrate, Court No.3, Shimla [referred to as Trial Court, for the purpose of this petition]. On receipt of case file, on transfer, the Learned Trial Court issued the notice on 04.09.2024, directing the petitioner-accused as well as his counsel for 07.10.2023. On 07.10.2023, the Presiding Officer concerned was not present. Thereafter, the matter was again listed on 30.11.2023 [Annexure-A], when, the NBWs were issued, so as to ensure the presence of the petitioner-accused on 17.01.2024. On 17.01.2024, the Court issued Fresh NBWs against the petitioner-accused for 08.02.2024. Notably, once the Fresh NBWs issued on 17.01.2024 were received back unexecuted yet, the Learned Trial Court has issued an order on 08.02.2024 [Annexure-B] directing the initiation of proceedings under Section 82, of the Code of Criminal Procedure [Cr.P.C.] against the petitioner-accused, by ignoring the mandate of Section 82 of Cr.P.C., referred to above. 7(ii). Notably, once the Fresh NBWs issued on 17.01.2024 were received back unexecuted yet, the Learned Trial Court has issued an order on 08.02.2024 [Annexure-B] directing the initiation of proceedings under Section 82, of the Code of Criminal Procedure [Cr.P.C.] against the petitioner-accused, by ignoring the mandate of Section 82 of Cr.P.C., referred to above. 7(ii). Notably, there is nothing on record to believe that the NBWs were not executed for the reason that the petitioner-accused had absconded or evaded appearance/service. However, the fact remains that once the NBW’s remained unexecuted, therefore, the proceedings under Section 82 of the Code of Criminal Procedure could not have been initiated against the petitioner-accused, in the peculiar facts of the instant case. 7(iii). From a perusal of Section 82 of the Code of the Criminal Procedure reveals that the object of the aforesaid provision is primarily to ensure the presence of the accused, during the trial or as and when directed by the Court concerned. In Para- 8 of the instant petition, the petitioner-accused has given an undertaking that the petitioner is ready to appear before the Trial Court on the next date of hearing i.e. on 18.04.2024, which reads as under:- “8. That the petitioner is ready to appear before the court below in the next date of hearings i.e. 18.04.2024.” 7(iv). Moreover, Annexure-A i.e. the copy of the police report reveals that at the time of registration of alleged offence and filing of Police Report though the petitioner was residing at Village Gharoli, P.O. Makrog, Tehsil Chopal, District Shimla but he had shifted his place of residence to Chauhan Niwas, Inder Nagar, P.O. Dhalli, Tehsil and District Shimla [H.P.] and the Learned Trial Court had not served the summons, warrants or NBW’s on the said address [Village Gharoli, P.O. Makrog, Tehsil Chopal, District Shimla] or at Dhalli address till day; and therefore, in these circumstances, the impugned order dated 08.02.2024 [Annexure-B] does not stand the test of judicial scrutiny. 8. 8. Without going into the merits of the matter and in view of the undertaking given to this Court in Para-8 of the petition and the bona fides shown to this Court, therefore, this Court, disposes of the instant petition, by directing the petitioner-accused, namely, Rakesh Chauhan, to appear before the Learned Trial Court i.e. Additional Chief Judicial Magistrate, Court No.3, Shimla, in accordance, with his undertaking, as in Para-8 of the petition on 18.04.2024, without any fail. 9. In view of the above discussion, the impugned orders dated 30.11.2023 [Annexure-A] and 08.02.2024 [Annexure-B] are quashed and set aside. 10. Needless to say that in case the petitioner- accused does not appear in the Trial Court, as per undertaking, referred to above, then, consequences shall entail. 11. In view of the above discussion, it is clarified that the petitioner may file an application before the Learned Trial Court for cancellation of NBWs, for which the appropriate orders, in terms of the above discussion, shall be passed in accordance with law. 12. In aforesaid terms, the instant petition is allowed and the pending miscellaneous application[s], if any, shall also stand disposed of.