2014 ALL MR (Cri) 561
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

R.C. CHAVAN, J.

Mr. Kanchan Chodankar Vs. Miss. Lida Joao & Ors.

Criminal Writ Petition No.110 of 2011

13th August, 2013

Petitioner Counsel: Mr. SHIVAN DESSAI
Respondent Counsel: Mr. J.A. LOBO, Mr. M. AMONKAR, Mr. S.R. RIVONKAR

Criminal P.C. (1973), S.82 - Penal Code (1860), S.174A - Proclamation of absconding - Cancellation of - Petitioner contended that the proclamation requiring him to appear before court on 15.11.2010 was actually served upon him one day after i.e. 16.11.2010 - However, respondent contended that proclamation was served well before 12.11.2010 - Copy of proclamation on record does not bear any date on which proclamation was published at public places - No enquiry into actual date conducted - Magistrate declined cancellation and decided to charge the petitioner u/s.174A of IPC - Held, Magistrate should not have framed charge on basis of presumption - Order of Magistrate set aside - Liberty given to frame charge under S.174A only after conducting enquiry into service and publication of proclamation. (Paras 3, 5)

JUDGMENT

JUDGMENT :- By this petition, the petitioner questions the order passed by the learned Additional Sessions Judge dated 20/07/2011 in Criminal Revision Application No.7/2011 upholding the order dated 19/01/2011 passed by the learned Chief Judicial Magistrate, Margao whereby the learned Chief Judicial Magistrate rejected the petitioner's application for cancellation of proclamation dated 05/10/2010. This proclamation was issued under Section 82 of Criminal Procedure Code because the accused / petitioner was stated to be absconding.

2. The learned Counsel for the petitioner submits that the proclamation was actually served upon the petitioner or came to the knowledge of the petitioner on 16/11/2010 i.e. a day after the petitioner was required to appear before the Court on 15/11/2010.

3. Respondent no.1/ complainant has filed an affidavit trying to suggest that the proclamation was in fact served upon the petitioner well before 12/11/2010. A copy of the proclamation which is made available for my perusal, has an endorsement of Shri A. B. Kenkare, A.S.I. Mapusa which unfortunately does not bear any date on which the proclamation was published at public places. This is a question, which would require evidence to be taken by the learned Magistrate. The application should not have been disposed of on the basis of presumption without actually scrutinizing evidence to show as to when the proclamation was published and whether 30 days' time was available to the petitioner to appear before the Court. Without conducting an enquiry on this aspect, the learned Magistrate could not have decided to charge the petitioner for the offence punishable under Section 174-A of the Penal Code. The petition is, therefore, partly allowed.

4. The trial of Criminal Case No.213/P/2002/A may proceed further, without the petitioner being charged for the offence punishable under Section 174-A of the Penal Code. The learned Magistrate may enquire into the question of publication & service of proclamation and then decide independently whether the petitioner needs to be charged for the offence punishable under Section 174-A of the Penal Code. The proceedings need not be tagged to the trial of Criminal Case No.213/P/2002/A. The impugned orders are, therefore, set aside to the extent of framing of charge for the offence punishable under Section 174-A of the Penal Code.

5. It is clarified that the learned Magistrate would be at liberty to proceed to frame charge against the petitioner for the offence punishable under Section 174-A of the Penal Code only after conducting enquiry into the service and publication of the proclamation dated 05/10/2010 in accordance with Section 82 of Criminal Procedure Code. As in all other criminal cases, the learned Magistrate shall, having due regard to pendency of older cases and trials of under trial prisoners before him, frame a program of the trial of the case and adhere to the program, and finish the trial in accordance with the program.

6. The petition stands disposed of.

Petition partly allowed.