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 and 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.Kanchan Chodankar Vs. Miss. Lida Joao and Others
Court : Mumbai - Goa
Judge : R.C. CHAVAN
Decided On : Aug-13-2013
Case Number : Criminal Writ Petition No.110 of 2011
Appellant : Kanchan Chodankar
Respondent : Miss. Lida Joao and Others
Citation;2014 ALLMR (cri) 561 (GOA HC)
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 and 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.
| *[174A. Non- appearance in response to a proclamation under section 82 of Act 2 of 1974 .- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub- section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.";] *[Inserted by Code of Criminal Procedure Amendment Act, 2005, section 44] | ||||
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