Birender Singh vs Union Territory Of Chandigarh And Anr
2023 Latest Caselaw 21639 P&H

Punjab-Haryana High Court

Birender Singh vs Union Territory Of Chandigarh And Anr on 12 December, 2023

                                                         Neutral Citation No:=2023:PHHC:158936




                                                                  2023:PHHC:158936


126         IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH


                                                 CRM-M-62379-2023
                                                 Date of decision: 12.12.2023


Birender Singh                                                       ....Petitioner


                                     Versus



Union Territory of Chandigarh and another                            ...Respondents


CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR

Present:    Mr. Amandeep Rana, Advocate
            for the petitioner.

            Mr. Tarun Vir Singh Lehal, Addl.P.P.,
            for respondent No.1-U.T. Chandigarh.

HARPREET SINGH BRAR, J. (ORAL)

The prayer in the present petition under Section 482 Cr.P.C. is for

setting aside the impugned order dated 30.09.2023 (Annexure P-5) passed by

the learned Judicial Magistrate 1st Class, Chandigarh, whereby, the learned

Magistrate declared the petitioner as proclaimed person in a complaint case

bearing No. NACT/321/2019 under Section 138 of the Negotiable Instruments

Act, 1881 (in short 'the Act') titled as 'Punjab State Co-operative Vs. Birender

Singh.'

2. Learned counsel appearing for the petitioner, inter alia, contends

that a complaint under Section 138 of the Act was filed against the petitioner on

the ground of dishonouring of cheque bearing No. 239947 dated 22.11.2018

amounting to Rs. 1,78,702/- issued in favour of the complainant/respondent

No.2 by the petitioner in discharge of his liability. The petitioner was

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summoned under Section 138 of the Act vide summoning order and on

03.12.2019, he was admitted to bail on furnishing bail bonds. Thereafter, the

petitioner was regularly appearing before the trial Court. It is further submitted

that the petitioner was suffering from Chronic Pancreatitis, depression and other

disease and also got admitted at Eden Critical Care Hospital, Industrial Area

Phase-1, Chandigarh on 11.06.2022 and was discharged on 28.06.2022. He was

further advised to take bed rest for 10 days. The petitioner informed the

counsel who was representing him before the lower Court that he would not

appear before the Court on 05.07.2022 but the counsel did not file any

application for exemption from his personal appearance due to which bail

bonds/surety bonds of the accused/petitioner was cancelled and forfeited to the

State and presence of the accused/petitioner was secured by issuing non-

bailable warrants for 24.08.2022. Notice to his surety was also issued for the

date fixed. Further proceedings were going on and to secure the presence of the

petitioner, fresh proclamation was issued on 19.08.2023 to appear before the

Court on or before 30.09.2023. On 30.09.2023, the trial Court declared the

petitioner proclaimed person without satisfying himself as to the factum of

service of notice upon the petitioner as respondent No.2 was unable to furnish

the complete address of the petitioner and the proclamation was not sent to the

petitioner at the correct address. Aggrieved by the said impugned order dated

30.09.2023 (Annexure P-5), the petitioner has approached this Court by way of

instant petition.

3. Learned counsel appearing for the petitioner submits that the non-

bailable warrants issued to the petitioner were never served and, therefore, the

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finding of the trial Court that the petitioner is intentionally evading his arrest, is

erroneous. Ultimately, vide impugned order dated 30.09.2023, the petitioner

has been declared as proclaimed person. 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.

4. It is also submitted that the petitioner undertakes to appear before

the trial Court on each and every date.

5. Notice of motion.

6. Mr. Tarun Vir Singh Lehal, Addl.P.P., U.T. Chandigarh, who is

present in Court, accepts notice for respondent No.1 and supports the order

passed by the learned trial Court by contending that the petitioner did not put in

appearance before the trial Court intentionally and deliberately and, therefore,

having left with no other option, proclamation was issued to secure his

presence.

7. I have heard learned counsel for the parties and perused the record

of the case with their able assistance and with the consent of parties, the matter

is taken up for final disposal.

8. 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. 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.

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9. A perusal of the impugned order reveals that the trial Court issued

proclamation without recording reasons of its belief that the petitioner has

absconded or is concealing himself. This Court in the judgment passed in

Major Singh @ Major Vs. State of Punjab 2023 (3) RCR (Criminal) 406;

2023 (2) Law Herald 1506 has held that the Court is first required to record its

satisfaction before issuance of process under Section 82 of Cr.P.C. and non-

recording of the satisfaction itself makes such order suffering from incurable

illegality. In the judgment passed by this Court in Sonu Vs. State of Haryana

2021 (1) RCR (Crl.) 319, it has been held that the conditions specified in

Section 82 (2) Cr.P.C. for the publication of a proclamation against an

absconder are mandatory. Any non-compliance therewith cannot be cured as an

'irregularity' and renders the proclamation and proceedings subsequent thereto

a nullity.

10. The sole purpose of issuance of non-bailable warrants or issuance

of proclamation is to secure presence of the accused before the trial Court. The

petitioner in the present case has himself come forward and has undertaken to

appear before the trial Court on each and every date.

11. In view of the aforesaid facts and circumstances, the present

petition is allowed, without issuing notice to the respondent No.2 in order to

save time of the Court and to avoid litigation expenses to be incurred on the

part of respondent No.2, the impugned order dated 30.09.2023 (Annexure P-5)

vide which the petitioner was declared proclaimed person is set aside.

12. The petitioner is directed to appear before the trial Court within a

period of 15 days from today and on his doing so, he shall be admitted to bail

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on his furnishing bail bonds and surety bonds to the satisfaction of the trial

Court, along with costs of Rs.10,000/- to be deposited with the Poor Patient

Welfare Fund, PGIMER, Chandigarh for wasting precious time of the Court.

                                              (HARPREET SINGH BRAR)
                                                    JUDGE
12.12.2023
Neha

             Whether speaking/reasoned        :     Yes/No
             Whether reportable               :     Yes/No




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