- 1 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 9516 OF 2023 (482(Cr.PC) / 528(BNSS) BETWEEN: MR. MUKTHAR HUSSAIN SYED ABDUL GAFOOR S/O AHMED HASSAN, AGED ABOUT 31 YEARS R/AT HOUSE NO. 2a/12. PERIYA VANIA STREET, CHIDAMBARAM, CUDDALORE, TAMIL NADU- 608 001. AND ALSO AT, APARTMENT BLOCK 64, UNIT NO. 02-385, KALLANG BAHRU, SINGAPORE - 330 064. …PETITIONER (BY SRI. KARIAPPA N A., ADVOCATE) AND: UNION OF INDIA SENIOR INTELLIGENT OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, BANGALORE ZONAL UNIT, BANGALORE - 560 043. (REPRESENTED BY SPECIAL PUBLIC PROSECUTOR FOR DRI HIGH COURT OF KARNATAKA AT BANGALORE - 560001) …RESPONDENT (BY SRI MADHU N.RAO AND CHANDAN SANJAY BHAT, ADVOCATES) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE ORDERS DATED 01.10.2019 OF ISSUE OF PROCLAMATION AND ORDER DATED 26.11.2019 IN TREATING HIM AS PROCLAIMED OFFENDER IN C.C.NO.187/2019 AND SPLIT UP CASE IN C.C.NO.2/2023 ON THE FILE OF HON’BLE SPECIAL COURT FOR ECONOMIC OFFENCES, BENGALURU AS PER ANNEXURE-‘A’ TO ‘C’ AS AN ABUSE OF PROCESS OF LAW. Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioner seeks quashing of the impugned orders dated 01.10.2019 and 26.11.2019 passed in C.C.No.187/2019 (split up case C.C.No.2/2023) by the Special Court for Economic Offences, Bangalore, and for other reliefs. 2. A perusal of the material on record will indicate that the respondent – complainant filed a private complaint under Section 200 Cr.P.C. for alleged offences punishable under Section 135(1)(b) and 135(1)(c) of the Customs Act, 1962, against the petitioner – accused No.2 and one Mr.Ashfaqalam Shabbir – accused No.1 and Mr.Haja Mohideen –accused No.3 before the Special Court for Economic Offences, Bangalore. The said C.C.No.157/2019 was split up as against petitioner – accused No.2 and Mr. Haja Mohideen – accused No.3 and re-numbered as C.C.No.187/2019 against them vide order dated 13.08.2019 by the Special Court. In pursuance of the same, the Special Court issued NBW as against petitioner – accused No.2 and accused No.3, subsequent to which, the Special Court passed the impugned order - 3 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 dated 01.10.2019 directing issuance of proclamation against petitioner and accused No.3 and listed the matter to 26.11.2019. On that day, the petitioner and accused No.3 remained absent and the Special Court proceeded to pass the subsequent impugned order dated 26.11.2019 declaring the petitioner and accused No.3 as proclaimed offenders. Aggrieved by the aforesaid impugned orders dated 01.10.2019 and 26.11.2019, the petitioner is before this Court by way of the present petition. 3. The respondent -State has filed statement of objections and sought for dismissal of the petition. 4. Heard learned Senior counsel for the petitioner and learned counsel for the respondent and perused the material on record. 5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior learned Senior counsel for the petitioner invited my attention to the impugned orders dated 01.10.2019 issuing proclamation as against the petitioner and impugned order dated 26.11.2019 declaring the petitioner as a proclaimed offender in order to point out that the procedure prescribed under Section 82 Cr.P.C. had not been - 4 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 followed by the Special Court and as such, the impugned orders deserve to be set aside. In support of his submissions, he placed reliance upon the judgment of this Court in the case of Sanjay Bhandari vs. State (NCT of Delhi) – 2018 SCC OnLine 10203. 6. Per contra, learned counsel for the respondent would reiterate the contentions urged in the statement of objections and submits that there is no merit in the petition and that the same is liable to be dismissed. 7. Before adverting to the rival submissions, it would be profitable to refer to Section 82 Cr.P.C., which reads as under:- 82. Proclamation for person absconding.—(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:— (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house - 5 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. [(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 (45 of 1860), 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. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).] - 6 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 8. The aforesaid provision came up for consideration before the Delhi High Court in the case of Sanjay Bhandari’s case supra, wherein, it is held as under:- 7. The question that arises of consideration is as to whether a person who is not accused of any of the offences mentioned in section 82(4) Cr.P.C. can be declared a Proclaimed Offender? 8. Section 82 of Cr.P.C. reads a under: "82. Proclamation for person absconding. (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:- (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; - 7 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 (c) a copy thereof shall be affixed to some conspicuous part of the Court- house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub- section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (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 (45 of 1860), 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 things fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub- section (4) as they apply to the proclamation published under sub-section (1)." - 8 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 9. Section 82(1) empowers a court to publish a written proclamation against a person, requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. This proclamation is issued if the court has reason to believe that a person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed. Further, it may be noticed that proclamation can be issued not only against a person, against whom a warrant has been issued and who has absconded but also against a person who is concealing himself so that such warrant cannot be executed. 10. Section 82(2) stipulates the manner and procedure of such proclamation. Section 83(3) stipulates that a statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub- section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. 11. Section 82(4) and 82(5) were inserted by the 2005 amendment of the Code w.e.f. 23.06.2006. Section 82(4) stipulates that a person, in respect of whom a proclamation has been published under section 82(1), if he fails to appear at the specified place and time required by the proclamation and if he is accused of offences mentioned in Section 82(4), the court may pronounce him as a proclaimed offender, after making such inquiry as it things fit. Section 82(5) stipulates that the provisions of Section 82(2) and (3) shall apply to a - 9 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 declaration made by the court under section 82(4) as they apply to a proclamation made under 82(1). 12. Other than section 82(4), Section 82 does not stipulate the consequences of non-compliance of the proclamation issued under it. 82(4) stipulates that where the proclaimed person fails to appear at the specified place and time, the court may pronounce him as a proclaimed offender. This pronouncement as a proclaimed offender can only be issued if he is accused of the offences stipulated in 82(4) and that also, only after the court has made such inquiry as it deems fit. There is no provision, other than section 82(4) in the Cr.P.C., under which the court can pronounce a person as a proclaimed offender. 13. There are adverse consequences stipulated in Cr.P.C. and Indian Penal Code qua a person in respect of whom a proclamation has been published under section 82, which shall be referred to a little later. 14. If the contention of learned Additional Public Prosecutor for the State were to be accepted – that every person in respect of whom a proclamation has been published is deemed to be a proclaimed offender irrespective of the provisions of Section 82(4) - then the consequence would be that a person qua whom a proclamation has been published and is not accused of any of the offences mentioned in Section 82(4), would be deemed so, without the safeguard of an inquiry stipulated in section 82(4). This can certainly not be the intention of the legislature. The offence enumerated in section 82(4) are serious in nature. It could not be the intention of the legislature that qua a person - 10 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 who is accused of offences that are serious in nature, the safe guard of an inquiry is stipulated and no such safeguard is stipulated qua a person who is accused of offences that may not be so serious. 15. The necessity of safeguard is further felt if one were to examine the other stipulations contained in Cr.P.C. qua proclaimed offenders. 16. Section 40 Cr.P.C. inter alia stipulates that every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may possess respecting the resort to any place within, or the passage through, such village of any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender. Section 40(2), stipulates that for the said section the expression 'proclaimed offender' includes any person proclaimed as an offender by any Court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive). Most of the sections of Indian Penal Code, 1860 referred to in Section 40(2) and Section 82(4) are common. 17. Section 41 Cr.P.C. inter alia empowers every police officer to arrest any person who has been proclaimed - 11 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 as an offender either under the Cr.P.C or by order of the State Government, without an order from a Magistrate and without a warrant. 18. Section 43 Cr.P.C. inter alia empowers every private person to arrest or cause to be arrested any proclaimed offender. 19. Section 73 Cr.P.C. inter alia authorises the Chief Judicial Magistrate or a Magistrate of the first class to direct a warrant to any person within his local jurisdiction for the arrest of a proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. 20. The stipulations contained in Sections 40, 41, 43 and 73 qua a proclaimed offender clearly shows that there are adverse consequences attached to being declared a proclaimed offender. The intention of the legislature cannot be that such adverse consequences would automatically get attracted to a person qua whom a proclamation has been published and is accused of offences of a less serious nature but for a person who is accused of serious offences enumerated in section 82(4), they would get attracted only after the safeguard stipulated in section 82(4) has been followed. 21. I am in respectful disagreement with the judgment of the Punjab and Haryana High Court in Rajiv vs. State of Haryana (supra) and Deeksha Puri vs. State of Haryana (supra). 22. The reasoning given by learned Judge in Deeksha Puri (supra) inter alia is that "Sub-section (4) of Section 82 - 12 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 Cr.P.C., if read, independent of the other sub-sections of Section 82 Cr.P.C. and provision of Section 174-A IPC and Section 174 IPC, is capable of being misconstrued to mean that it is only that accused person, facing trial, only for offences mentioned in Section 82 (4), who can be declared "proclaimed offender" after publication under Section 82 (1) (2) and (3) Cr.P.C. giving immunity to the other absconders from being declared "proclaimed offenders". In that imaginary situation, it appears to be a relaxation clause. But if sub-sections (4) and (5) of Section 82Cr.P.C. are read alongwith sub-sections (1) and (2) of Section 82 Cr.P.C. and Scheme of other provisions of Cr.P.C. and Sections 174 and 174 A IPC, following the Rule of "Contextual construction", and "Harmonious Construction", it would avoid the risk of making interrelated provisions becoming otiose or devoid of meaning. The intention of legislation to make stringent penal provisions of Section 174 A IPC for securing the presence of an absconder by providing 7 years imprisonment for avoiding summons, warrants or proclamation, under Section 82 (1) Cr.P.C. can not be ignored while construing Section 82 (4) Cr.P.C. One can not negate the effect of Section 174-A IPC and render it redundant by misconstruing the Section 82 (4) Cr.P.C. to mean that it is meant to provide relaxation to offenders of offences not covered under Section 82 (4) Cr.P.C." 23. The basic reasoning for the learned judge to hold that all persons qua whom a declaration has been published under section 82(1) Cr.P.C. would be deemed to be proclaimed offender is that any other interpretation would - 13 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 render the provisions of section 174A IPC otiose and redundant. 24. In my view, learned judge has not noticed that the provisions of section 174 IPC and 174A IPC operate in different circumstances. 25. Sections 174 and 174A IPC read as under: "174. Non-attendance in obedience to an order from public servant --Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 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." 26. Section 174 makes it an offences if a person being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at - 14 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 which it is lawful for him to depart. Section 174 applies to all persons and public servants and is in respect of summons, notice, order or proclamation proceeding. Section 174 is not restricted only to accused but inter alia encompasses in its scope, witnesses, parties to civil and criminal proceedings, noticees to whom notice may have been issued by public authorities. 27. On the other had section 174A makes it an offence if a person, required by a proclamation published under sub-section (1) of section 82, to appear, fails to appear. It further stipulates that if such a person fails to appear he would be punishable 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 section 82(4) against such a person, pronouncing him as a proclaimed offender, then he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. 28. Under section 82 (1) Cr.P.C. a proclamation can be issued only against a person against whom a warrant has been issued and has absconded or is concealing himself so that such warrant cannot be executed. Clearly, the scope and operation of sections 174 and 174A are different. However, there may be an overlap in their operation but largely they operate in different spheres. Persons covered by section 174A second part would be a sub set of persons covered by section 174A first part who in turn would be subset of persons covered by section 174 IPC. - 15 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 29. Further it may be seen that sections 83, 84 and 85 Cr.P.C., which provide for attachment of property of person absconding, claims & objections thereto and release, sale and restoration of attached properties of persons qua whom a declaration under section 82 has been issued, uses the expression 'Proclaimed Person'. 30. The provisions of Section 82 to 84 become applicable on the issuance of the proclamation and are not dependent on the declaration under section 82(4). 31. 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'. 32. 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. 33. In view of the above, order dated 08.01.2018 declaring the petitioner as a proclaimed offender is not sustainable and is accordingly quashed to the said extent. However, this would not affect the status of the petitioner as a proclaimed person and would be without prejudice to the action initiated against the petitioner for failure to appear in terms of the proclamation issued. 34. The Petition is disposed of in the above terms. 35. Order Dasti under signatures of Court Master.” - 16 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 9. In the instant case, a perusal of the impugned order dated 01.10.2019 issued proclamation issued as against accused No.2 will indicate that the same is a cryptic, laconic, unreasoned and non-speaking order without any application of mind nor assigning any reason as to why proclamation was being issued as required under Section 82(1) Cr.P.C; in fact, the Special Court merely states that the investigation reports submitted by the investigating officer had been perused and no reasons to believe that the petitioner was absconding or concealing himself so that the NBW could not be executed against him as contemplated under Section 82(1) Cr.P.C. It is therefore clear that the impugned order is contrary to facts and law as well as the provisions contained in Section 82(1) of Cr.P.C. and in the absence of the mandatory procedure and necessary ingredients / requirements of Section 82(1) Cr.P.C. being satisfied / fulfilled / complied with, I am of the view that the impugned order dated 01.10.2019 issuing proclamation against the petitioner – accused No.2 deserves to be quashed. 10. 10. A perusal of the subsequent impugned order dated 26.11.2019 making a declaration to the effect that the petitioner - 17 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 was a proclaimed offender will indicate that it was incumbent upon the special court to conduct necessary enquiry as mandatorily required / contemplated under Section 82(4) Cr.P.C. prior to declaring the petitioner as a proclaimed offender and consequently, the impugned order dated 26.11.2019 also deserves to be quashed. In this context, it is pertinent to note that a perusal of the impugned order dated 26.11.2019 will indicate the same is a cryptic, laconic, unreasoned, non-speaking order without assigning reasons as to why the petitioner was being declared as a proclaimed offender except stating that the petitioner – accused No.2 was absent on that day and without conducting necessary enquiry as contemplated under Section 82 Cr.P.C.; it is also significant to note that Section 82(4) Cr.P.C. empowers the trial court to declare the petitioner – accused No.2 as a proclaimed offender only in relation to IPC offences specifically referred to in the said provision and in the absence of any provision under the Customs Act or any other provision under the Cr.P.C., which permits the Special court to declare the petitioner as a proclaimed offender under Section 82(4) Cr.P.C. for alleged offences punishable under Section 135(1)(b) and 135(1) (c) of the Customs Act, I am of the view that the impugned order dated 26.11.2019 - 18 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 declaring the petitioner as a proclaimed offender also deserves to be quashed. 11. Insofar as the contention urged by the respondent that the present petition is not maintainable in view of dismissal of W.P.No.9556/2023 dated 20.12.2023 wherein the co-ordinate Bench of this Court dismissed the said petition filed by the petitioner herein is concerned, a perusal of the said order will indicate that the said petition was filed by the petitioner herein seeking quashing of the instant proceedings in C.C.No.187/2019 (split up C.C.No.2/2023) before the Special Court and mere dismissal of the said petition would neither have a bearing nor impact or come in the way of this Court passing appropriate orders in the present petition. In fact, in the said order passed in W.P.No.9556/2023, the co-ordinate Bench of this Court held as under:- 13. For the aforesaid reasons, the following: ORDER (i) Writ Petition is rejected. (ii) It is made clear that the observation made in the course of the order are only for the purpose of consideration of the case of the petitioner under Section 482 of the Cr.P.C - 19 - NC: 2025:KHC:2336 CRL.P No. 9516 of 2023 and the same would not influence or bind further proceedings against the petitioner or any other accused. 12. As is clear from the aforesaid order passed in W.P.No.9556/2023, the co-ordinate Bench of this Court has specifically stated that the said order is restricted / limited to the consideration of the petition under Section 482 Cr.P.C. and that the same would not have any impact or bearing or any other proceedings, obviously including the present petition and as such, the said contention urged by the respondent cannot be accepted. 13. In the result, I pass the following: ORDER (i) Petition is hereby allowed. (ii) The impugned order of issuance of proclamation dated 01.10.2019 and the impugned order treating the petitioner as proclaimed offender dated 20.11.2019 in C.C.No.187/2019 and split up case in C.C.No.2/2023 on the file of the Special Court for Economic Offences, Bengaluru, are hereby quashed. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC/SRL List No.: 3 Sl No.: 1