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2025 DIGILAW 296 (HP)

Umesh Kumar v. State of Himachal Pradesh

2025-03-07

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. 1. FIR No. 132 of 2020 was registered against the petitioner at Police Station Kangra for the commission of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code (IPC). A charge sheet was filed against the petitioner after the completion of the investigation before learned Additional Chief Judicial Magistrate Kangra. The petitioner did not appear before the Court, and the Court issued a proclamation on 23.7.2024. When the petitioner did not appear, the petitioner was declared a proclaimed offender on 20.9.2024. 2. Being aggrieved from the order, the petitioner has filed the present petition for setting aside the order dated 23.7.2024, granting an opportunity to appear before the learned Trial Court and protecting him from arrest till his appearance. It has been asserted that the petitioner was a daily wage worker. He had to reside outside to earn his livelihood. The petitioner would abide by all the conditions, which the Court may impose. The petitioner is of advanced age. Hence, the present petition. 3. I have heard Mr. Paras Sharma, learned counsel for the petitioner and Mr. Gautam Sood, learned Deputy Advocate General for the respondent-State. 4. Mr. Paras Sharma, learned counsel for the petitioner, submitted that the petitioner is a mason who had to leave the jurisdiction of the learned Trial Court to earn his livelihood. His absence was not intentional, therefore, he prayed that the present petition be allowed and the petitioner be protected from arrest till he surrenders before the learned Trial Court. He relied upon the judgment of the Punjab & Haryana High Court in Pushpa Jain Vs. State of Haryana, CRM-M-27208-2022 decided on 23.06.2022 in support of his submission. 5. Mr Gautam Sood, learned Deputy Advocate General, for the respondent-State submitted that the petitioner was declared a proclaimed offender and is not entitled to pre-arrest bail. He cannot get the same relief by filing a petition under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was laid down by the Hon’ble Supreme Court in Shrikant Upadhayaya Vs. State of Bihar, (2024) INSC 202 that a person is not entitled to seek pre-arrest bail when a warrant of arrest or proclamation has been issued. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was laid down by the Hon’ble Supreme Court in Shrikant Upadhayaya Vs. State of Bihar, (2024) INSC 202 that a person is not entitled to seek pre-arrest bail when a warrant of arrest or proclamation has been issued. The Court can grant pre-arrest bail in extremely exceptional cases but a person defying orders by absconding is not entitled to the pre-arrest bail. The Hon’ble Supreme Court, however, granted pre-arrest bail to a person, who was declared a proclaimed offender in Asha Dube Vs. State of Madhya Pradesh, Criminal Appeal No. 4564 of 2024 decided on 12.11.2024. 8. In the present case, the petitioner was declared a proclaimed offender vide order dated 20.9.2024. He did not surrender before the learned Trial Court and instead approached this Court to seek protection from the arrest. There is a force in the submission of Mr Gautam Sood, learned Deputy Advocate General for the respondent-State that since the petitioner is entitled to pre-arrest bail only in extreme cases, he cannot get the pre-arrest by filing a petition under Section 528 of BNSS. It was laid down by the Hon’ble Supreme Court in Institution of Mechanical Engineers (India) v. State of Punjab , (2019) 16 SCC 95 : 2019 SCC OnLine SC 1023 that what cannot be done directly cannot be done indirectly. It was observed at page 125: “44. The principle that what cannot be done directly cannot be achieved indirectly is well settled and was elaborated by this Court in the following decisions: 44.1. In State of T.N. v. K. Shyam Sunder, ( 2011) 8 SCC 737 : 6 SCEC 65 as under : (SCC pp. 764-65) “ VI. What cannot be done directly—cannot be done indirectly 43. ‘21. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. ‘21. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. An authority cannot be permitted to evade a law by “shift or contrivance”.’ [Jagir Singh v. Ranbir Singh, (1979) 1 SCC 560 : 1979 SCC (Cri) 348, M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213 and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd., ( 2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904 , SCC p. 344, para 21)” 44.2. In Jagir Singh v. Ranbir Singh, (1979) 1 SCC 560 : 1979 SCC (Cri) 348, as under : (SCC pp. 564-65, para 5) “5. In order to cross the hurdle imposed by Section 397(3), it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead of as one directed against the order of the Magistrate. We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly; that would be an evasion of the statute. It is a ‘well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance’ (per Abbot, C.J. in Fox v. Bishop of Chester, (1824) 2 B&C 635 : 107 ER 520 ). ‘To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined.’ (Maxwell, 11th Edn., p. 109.) When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted, and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge's order.” 9. The petitioner has not made out any exceptional cases for grant of protection. The bar of Section 397(3) was, therefore, effectively attracted, and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge's order.” 9. The petitioner has not made out any exceptional cases for grant of protection. He stated that he left Kangra to earn his livelihood without specifying the necessity to do so and why he was unable to earn his livelihood as a mason at Kangra. He has not given any explanation as to why he could not seek exemption from the Court from personal appearance. He did not surrender before the learned Trial Court when the proclamation was issued and approached this Court when he was declared a proclaimed offender. Thus, no exceptional case is made out for granting protection from arrest. 10. The judgment of Pushpa Jain was delivered before the judgments of the Hon’ble Supreme Court and will not assist the petitioner. 11. In view of the above, the present petition fails and the same is dismissed. 12. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.