The Allahabad High Court held that before issuing a 'proclamation' under Sections 82/83 of CrPC, the Court concerned must record its satisfaction that despite the service of notice, summon, bailable warrant and non-bailable warrant, the person concerned has deliberately avoided the proceedings.
Brief Facts:
The petitioner was facing Section 138 NI Act proceedings initiated by the private opposite party on February 10, 2023, following a legal notice served on January 06, 2023. The petitioner argued that the notice had been sent to an incorrect address and that the complainant did not wait for the mandatory 15-day period for payment after serving the notice, despite it being sent to the wrong address. It was also contended that the 15-day period would have ended on February 21, 2023, yet the complaint was filed on February 10.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that since the legal notice had not been served upon the petitioner, hence, he could not contact the complainant. Not only the above, when the complainant has filed the complaint before the court concerned. Further, the notice must have been issued to the petitioner at such address where he is residing, however, if the notice has been issued at the address where the petitioner is not residing, resultant thereof, the notice could not be served upon the petitioner and he could not participate in the proceedings and the summons, bailable warrant and non-bailable warrant have been issued against him. However, when the proclamation under Section 82 Cr.P.C. was issued against the petitioner, then the petitioner came to know about the aforesaid proceedings. Further, it was submitted that before issuing the proclamation under Section 82 Cr.P.C. the court concerned must ensure the fact as to whether the notice, summon, bailable warrant and non-bailable warrant are served upon the petitioner and whether he is deliberately avoiding those processes, inasmuch as this is a trite law that the proclamation under Sections 82/83 Cr.P.C. should not be issued in a casual and cursory manner.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent tried to defend the impugned order but could not dispute the aforesaid submission of learned counsel for the petitioner.
Observations of the court:
The court observed that before issuing a proclamation under Sections 82/83 Cr.P.C. by any Subordinate Court, at least, satisfaction must be indicated in an order to the effect that despite the service of notice, summon, bailable warrant and non-bailable warrant the person concerned has deliberately avoided the proceedings. Further, any order of proclamation under Sections 82/83 Cr.P.C. must be passed on an application of a person concerned/ Investigating Officer etc. to the effect that after service of notice, summon, bailable warrant and non-bailable warrant upon the person concerned, he/ she is avoiding the proceedings so a proclamation may be issued and on such application, which must be supported with an affidavit, the court concerned may issue proclamation under Sections 82/ 83 Cr.P.C. indicating the subjective satisfaction on the aforesaid aspect in the order itself. If any order issuing a proclamation under Sections 82/83 Cr.P.C. lacks the aforesaid procedure, such order would be null in the eyes of the law.
It was further stated by the court that any complaint under Section 138 of the N.I. The act should have been filed strictly in accordance with the mechanism so given under Section 138 of the N.I. Act. In the present case, it appears that the compulsory statutory period has not been taken care of by the complainant itself nor by the Court.
The decision of the Court:
The court granted the petitioner the liberty to appear before the court concerned on March 22, 2024, and directed that if the petitioner appears or surrenders before the court on the specified date, i.e., 22.03.2024, all coercive measures, including the summoning order dated 28.03.2023 and the proclamation order dated 15.02.2024, shall be kept in abeyance and liberty would be given to the petitioner to participate in the proceedings.
Case Title: Pradeep Agnihotri vs State of U.P.
Coram: Hon’ble Mr. Justice Rajesh Singh Chauhan
Case No.: APPLICATION U/S 482 No. - 2218 of 2024
Advocate for the Petitioner: Shishir Pradhan
Advocate for the Respondent: Bishwa Nath Nishad
Read Judgment @LatestLaws.com
Picture Source :
