Supreme Court: In an appeal filed against the judgment and order passed by the Punjab and Haryana High Court, whereby under Section 482 of Criminal Procedure Code, 1973(‘CrPC’) the Court refused to quash complaint case, summoning order; and order declaring the accused a proclaimed offender passed by the Judicial Magistrate, the division bench of C.T. Ravikumar and Sanjay Karol*, JJ. while setting aside the impugned judgment held that Section 174A of Penal code, 1860 (‘IPC’) is an independent, substantive offence, that can continue even if the proclamation under Section 82 CrPC is extinguished. It is a stand-alone offence.
Background
The accused, who ran a business awarded a contract for 8-laning a National Highway (NH-1) in Delhi by the National Highways Authority of India (‘NHAI’), entered into an agreement with respondent 2 for stone crushing. The agreement included mutual specifications and payment security through cheques. However, a dispute arose when the work did not meet the agreed specifications. Consequently, the NHAI terminated the contract on 13-01-2009, and cashed the bank guarantee. Despite the issuance of a ₹10 lakh cheque, which was encashed on 16-10-2009, and a subsequent cheque from the bank guarantee account in November 2009, the accused was allegedly involved in a dispute regarding unclaimed cheques.
A complaint was filed on 08-06-2010, and summons were issued on 17-08-2010. After multiple transfers of the case, the accused was declared a proclaimed offender (PO) on 28-11-2016, following non-appearance. The accused’s case was further complicated by a subsequent FIR related to similar issues, and the quashing petition filed by the accused was dismissed.
The impugned order dismissed the accused’s petition under Section 482 of CrPC, referencing an earlier judgment that disallowed petitions by proclaimed offenders. The validity of the proclamation was determined to be a matter for the Court that issued it. This order is the subject of the current appeal.
Issues
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Whether the proclaimed offender status, under the provisions of the CrPC, of an accused could subsist if such accused stands acquitted during trial in connection to the very same offence;
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Whether the subsistence of the proclamation under Section 82 of CrPC is necessary for the authorities to proceed against an accused against whom such a proclamation stands issued, under Section 174A of IPC.
Analysis and Decision
The Court noted that in subsequent developments after the filing of the special leave petition, the accused stands exonerated in the germane proceedings under Section 138 of the Negotiable Instruments Act, 1881.
The Court took note of Section 82 of the CrPC, and Section 174A IPC which lays down penal consequences for intentionally evading the process under Section 82 CrPC.
The Court said that the purpose of Section 82 CrPC is to ensure that a person who is called to appear before a Court, does so. This Section appears as part of Chapter VI which is titled ‘Process to Compel Appearance’. Section 83 to 90 provide for the additional method of attachment of property to the end of securing appearance. Necessarily then some or the other proceeding has to be ongoing for which the presence of such a person is necessary. The words of the Section dictate that it can be only issued in respect of a person against whom a warrant has been issued. Neither a warrant nor proclamation subsequent can be conjured up out of thin air.
The Court highlighted that Section 174A IPC, inserted by the 2005 Amendment to the Penal Code inserts a substantive offence, prescribing punishment of three years or fine or both when such proclamation is issued under Section 82(1) CrPC and, seven years and fine if the said proclamation is under Sub section (4) thereof. The object and purpose of this Section is to ensure penal consequences for defiance of a Court order requiring a person’s presence.
The Court answered in affirmative that if the status under Section 82 CrPC is nullified i.e., the person subjected to such proclamation, by virtue of subsequent developments is no longer required to be presented before a Court of law. Then, the prosecution still proceeds against such a person for having not appeared before a Court during the time that the process was in effect.
The Court answered in the affirmative, confirming that even if the status of a person under Section 82 CrPC (Proclamation of an absconder) is nullified due to subsequent developments, the prosecution can still proceed against that person for failing to appear before the court during the time when the proclamation was in effect.
The Court highlighted that the language of Section 174A, IPC says “whoever fails to appear at the specified place and the specified time as required by proclamation…”. This implies that the very instance at which a person is directed to appear, and he does not do so, this Section comes into play. What further flows from the language employed is that the instance of non-appearance becomes an infraction of the Section, and therefore, prosecution would be independent of Section 82, CrPC being in effect. So, while proceedings under Section 174A IPC cannot be initiated independent of Section 82, CrPC., i.e., can only be started post the issuance of proclamation, they can continue if the said proclamation is no longer in effect.
The Court further stated that while the offense under Section 174A of IPC is a stand-alone offense, stemming from the failure to appear in court after being declared a proclaimed offender under Section 82 CrPC., an acquittal in the original offense—connected to the proclamation—may influence the course of the proceedings under Section 174A. If the accused is acquitted in the original case, the Court handling the trial of that case can consider this acquittal as a valid ground to potentially conclude the proceedings for the failure to appear, provided a formal request is made and the circumstances of the case support such an action. In essence, the Court has the discretion to close the proceedings under Section 174A, taking into account the acquittal in the original offense, especially if the acquittal calls into question the basis for the proclamation and the subsequent prosecution.
The Court held that Section 174A IPC is an independent, substantive offence, that can continue even if the proclamation under Section 82, CrPC is extinguished. It is a stand-alone offence.
The Court stated that since the accused was acquitted of the main offense, there is no longer any case for which the accused’s presence is required to be secured. As a result, the Court set aside the judgment of the High Court and concluded that all criminal proceedings, including the FIR under Section 174A IPC, shall stand closed. Furthermore, the appellant’s status as a ‘proclaimed person’ was quashed, acknowledging that the basis for the earlier proclamation and subsequent proceedings had been removed due to the acquittal in the original case.
CASE DETAILS
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CORAM :
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