Final Order 9

Order Details: COPY OF ORDER
Pdf Text: Crl. Rev. No. 170/2023
FIR No. 226/2022
PS: Laxmi Nagar
State Vs. Naveen Khatana
21.09.2023
Pr: Sh. Ramesh Bajiya, Ld. Addl. PP for the State.
Mr. B.P.Sharma, ld. Counsel for the applicant/accused.
The present revision petition is directed against the order of the ld. MM
dated 15.04.2023 wherein the applicant was declared as ‘proclaimed person’
under section 82 Cr.PC.
The ld. Counsel has agitated that the said order is flawed in law as the
enumeration of offences in the present FIR included section 302 IPC which placed
the same within the ambit of Section 82 (4) Cr.PC. It was submitted that the
accused could not have been declared a proclaimed person as the said provision
contemplated declaration as “proclaimed offender’’. It was also agitated that the
order dated 15.04.2023 was bereft of reasons and thus liable to be set aside.
The ld. Prosecutor opposed the petition submitting that no prejudice had
been caused to the accused by order dated 15.04.2023 as he was liable to be
treated as an absconder notwithstanding declaration as a proclaimed person
instead of ‘proclaimed offender’.
Having considered the submissions, the court would observe that section 82
(4) Cr.PC specifies certain offences to the exclusion of other offences. It is only if
a person is an accused qua the specified offences that his failure to appear in terms
of the proclamation under section 82 (1) renders him liable to be declared as a
‘proclaimed offender’.
If, however, the offences in allegation against him are not enumerated in
section 82 (4) Cr.PC, he is liable to be declared as a proclaimed person.
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In the present allegations, section 302 has been invoked in the FIR.
Consequently, section 82 (4) requires the declaration of the accused as a
proclaimed offender and not a proclaimed person.
The said distinction has been clearly highlighted in the decision reported as
Sanjay Bhandari v. State (NCT of Delhi) 2018 SCC Online Del 10203 wherein
it was held as under:
“I am thus of the view that a person who is accused of offences other than
the ones enumerated in section 82 (4) and qua whom a proclamation has been
published under section 82 (1) would be a ‘Proclaimed person’ and not a deemed
‘Proclaimed Offender.
As noticed above, there is no provision other than section 82 (4) for
pronouncing such a person as a proclaimed offender and 82 (4) applies only in
respect of persons accused of sections of IPC enumerated therein’’.
Thus the order dated 15.04.2023, which declared the accused as a
proclaimed person suffers from material infirmity in law and is liable to be set
aside.
It may still be clarified that the setting aside of the order dated 15.04.2023
does not preclude the IO from either seeking fresh NBWs against the accused or
praying for issuance of fresh process under section 82 Cr.PC, if the NBWs remain
unexecuted.
The impugned order dated 15.04.2023 is set aside.
The revision petition is allowed in the above terms.
Let a copy of the present order be sent to the court of the ld. MM and the
file in revision be sent to the Record Room.
(VISHAL GOGNE)
ASJ02/East/KKD/Delhi/21.09.2023
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