The Punjab & Haryana High Court while setting aside the order of the trial court whereby the petitioner was declared as a proclaimed person observed that the trial Court issued a proclamation without recording reasons for its belief that the petitioner has absconded or is concealing himself any non-compliance in procedure under Section 82 CrPC cannot be cured as an ‘irregularity’ and renders the proclamation and proceedings subsequent thereto a nullity.
Brief Facts:
The petitioner, accused under Sections 323/324/148/149 of IPC filed the present petition under Section 482 Cr.P.C. seeking the quashing of an order passed by the trial court, whereby, the petitioner has been declared as a proclaimed person.
Contentions of the Applicant:
The learned counsel appearing on behalf of the petitioners contended that the challan was presented before the learned trial Court at the time when the petitioner was not in India and the petitioner was not aware of any of the proceedings pending before the learned trial Court as he never returned to India. It was further submitted that the petitioner was never served with any bailable warrants, non-bailable warrants or even any proclamation as he was not in India and as per the impugned order dated 04.04.2022, the proclamation was affected on 03.03.2022 at the local address of the petitioner where the petitioner was not residing and, therefore, the finding of the trial Court that the petitioner is intentionally evading his arrest is erroneous as there was no question to send the proclamation at the local address when the petitioner was residing abroad. It is contended that the impugned order is liable to be set aside on the ground that the mandate of Section 82 of Cr.P.C. has not been followed in its letter and spirit by the trial Court.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that the petitioner did not put an appearance before the trial Court intentionally and deliberately and, therefore, having left with no other option, a proclamation was issued to secure his presence.
Observations of the Court:
The court observed that while the scheme of criminal justice system necessitates curtailment of personal liberty to some extent, it is of the utmost importance that the same is done in line with the procedure established by law to maintain a healthy balance between personal liberty of the individual-accused and interests of the society in promoting law and order and further that such procedure must be compatible with Article 21 of the Constitution of India i.e. it must be fair, just and not suffer from the vice of arbitrariness or unreasonableness.
The court noted that that the trial Court issued a proclamation without recording reasons for its belief that the petitioner has absconded or is concealing himself and then referred to the judgement passed in Major Singh @ Major Vs. State of Punjab wherein it was held that the Court is first required to record its satisfaction before issuance of process under Section 82 of Cr.P.C. and nonrecording of the satisfaction itself makes such order suffering from incurable illegality and further in the case of Sonu vs State of Haryana wherein it was held that the conditions specified in Section 82 (2) Cr.P.C. for the publication of a proclamation against an absconder are mandatory and stated that any non-compliance therewith cannot be cured as an ‘irregularity’ and renders the proclamation and proceedings subsequent thereto a nullity.
The decision of the Court:
The court allowed the petition, set aside the impugned order and directed the petitioner to appear before the trial Court within a period of four weeks.
Case Title: Jaspreet Singh vs State of Punjab
Coram: Hon’ble Mr. Justice Harpreet Singh Brar
Case No.: CRM-M-65048-2023
Advocate for the Applicant: Mr. Rajesh Bhatheja
Advocate for the Respondent: Mr. Subhash Godara
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