M.M.S.BEDI, J. - (1.) A large number of petitions are being filed by absconding accused persons, seeking quashing of the orders declaring them "proclaimed offenders" on the misconceived notion that, since they are not accused of the offences punishable as mentioned in Section 82 (4) Cr.P.C. (added by Section 12 of Act No. 25 of 2005) i.e. under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of Indian Penal Code, they cannot be declared proclaimed offenders. There are few instances in which such pleas are raised and believed to quash the proclamations declaring accused as "proclaimed offenders" for violation of Section 82 (4) Cr.P.C. Sub-Section (4) of Section 82 Cr.P.C. which has raised controversy reads as under:- "Section 82 (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, 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."
(2.) IN the present case also the petitioner having been declared a proclaimed offender in FIR No. 341 dated December 27, 2010 under Sections 420, 467, 468, 471, 120-B IPC, registered at Police Station DLF-II, Gurgaon, District Gurgaon, has challenged the order dated October 31, 2011, passed by the Court of CJM, Gurgaon, declaring the petitioner a proclaimed offender. The main ground of challenge is that the said order has been passed in violation of the provisions of Section 82 (4) Cr.P.C., as the offences for which the petitioner is sought to be prosecuted and punished, do not fall under the list of offences which are specified in Section 82 (4) Cr.P.C. Petitioner claims that the order declaring the petitioner a proclaimed offender is not sustainable in the eyes of law and is thus liable to be quashed. The provisions of Section 82 (4) and (5) Cr.P.C. were introduced by the Code of Criminal Procedure (Amendment Act 2005) (25 of 2005) by Section 12 w.e.f. June 23, 2006, hereinafter referred to as the Act 25 of 2005 . Prior to the said amendment, Section 82 Cr.P.C. contained only sub-sections (1) , (2) and (3) pertaining to the proclamation of persons absconding.
(3.) THE present petition warrants interpretation, construction and determination of scope and applicability of sub-sections (4 ) of Section 82 Cr.P.C. as on the basis of isolated literal construction of Section 82 (4) Cr.P.C., avoiding harmonious and Contextual interpretation, in relation to other provisions of Cr.P.C. and IPC. Few decisions have been rendered by different Courts, setting aside declarations of proclaimed offenders, of lower Courts, being violative of Section 82 (4) Cr.P.C.. Few of the instances cited by learned counsel for the petitioner are as follows:- Satinder Singh Vs. State of U.T. Chandigarh and i) another, 2001 (2) RCR (Crl.) 89. In the said case, the order declaring the petitioner a proclaimed offender was set aside merely on the ground that it was in violation of provisions of Section 82 (4) Cr.P.C.; In Rahul Dutta Vs. State of Haryana, 2012 (2) RCR ii) (Crl.) 585, while considering the application for regular bail pending trial in offences under Sections 498 A, 406 read with Section 174-A IPC, the scope of Section 82 (4) Cr.P.C. was considered in context to the amendment by Act No. 25 of 2005, holding that the term "proclaimed offender" has different connotations and that a person who is evading the execution of warrants of arrest he should under the special sections of IPC mentioned in Section 82 (4) Cr.P.C. can only be declared to be a "proclaimed offender" and a person under the other provisions of IPC and the laws can be declared to be a "proclaimed person" in terms of Section 82 (1) Cr.P.C. and regular bail was granted to the petitioner. The provisions of Section 40 (2) (i) Cr.P.C. and Section 40 (1) (b) were taken into consideration while forming the said opinion. In Likhma Ram Vs. Sate of Punjab and another, iii) following the judgment in Satinder Singh's case (supra), another Bench of this Court had set aside an order declaring petitioner as a proclaimed offender as the sections in which the petitioner was involved did not fall under Section 82 (4) Cr.P.C., however, a direction was given to the petitioner to appear before the Magistrate on a particular date with a direction that he would be released on bail. In Sukhwinder Singh Vs. State of Punjab, Crl. Misc. iv) No. M-18469 of 2011, this Court had set aside an order declaring an accused as proclaimed offender on the ground that it was contrary to the provisions of Section 82 (4) Cr.P.C. In Baldev Singh Vs. State of Punjab, Crl. Misc. No. M- v) 6301 of 2011, again this Court had set aside an order passed by Judicial Magistrate declaring the petitioner as a proclaimed offender, as it was violative of Section 82 (4) Cr.P.C. as the sections in which the accused had been declared proclaimed offender were not mentioned in Section 82 (4) Cr.P.C. In Balihar Dhami and another Vs. State of Punjab vi) and another, Crl. Misc. No.M-7249 of 2011, decided on March 9, 2011 by this Court, the order declaring the petitioner a proclaimed offender was set aside as it was violative of provisions of Section 82 (4) Cr.P.C., however a direction was given to the petitioner to appear before the trial Court within a period of three weeks and furnish bail bonds. Similarly in Sarabjit Rai Vs. State of Punjab, Crl. vii) Misc. No. M-37489 of 2010, decided on January 27, 2011, the order declaring the petitioner a proclaimed offender was set aside being violative of Section 82 (4) Cr.P.C., however, 10 days was given to the petitioner to appear before the Court and furnish bail bonds. Similarly in Jaswant Singh Vs. State of Punjab and viii) another, Crl. Misc. No. M-31531 of 2011, decided on December 15, 2011, following the judgment of Satinder Singh's case (supra), it was held that the petitioner could not be declared a proclaimed offender in offence under Sections 406, 420, 498A IP'C as sections did not fall under Section 82 (4) Cr.P.C. In Ramji Dass Vs. State of Punjab, Crl. Misc. No. M- ix) 24417 of 2010, decided on February 10, 2011 by this Court, the order declaring the petitioner a proclaimed offender was set aside on the ground that it was violative of Section 82 (4) Cr.P.C. and that he was never served in England. ;