Punjab-Haryana High Court
Gurtej Singh vs State Of Punjab And Another on 14 December, 2023
Neutral Citation No:=2023:PHHC:160776
2023:PHHC:160776
204 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-40303-2023
Date of decision: 14.12.2023
GURTEJ SINGH
...PETITIONER
V/S
STATE OF PUNJAB AND ANOTHER
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Rahul Soi, Advocate for the petitioner.
Mr. I.P.S. Sabharwal, DAG, Punjab.
****
HARPREET SINGH BRAR J. (ORAL)
The prayer in the present petition under Section 482 Cr.P.C. is for
quashing of impugned orders dated 01.07.2023 (Annexure P-8) and 27.04.2023
(Annexure P-5) passed by Judicial Magistrate Ist Class, Patiala and all other
subsequent proceedings vide which, the petitioner was declared as proclaimed
person and non-bailable warrants were issued against him in a complaint case
bearing No. COMA/5429/2017 dated 21.11.2017 under Section 138 of the
Negotiable Instruments Act, 1881 (in short 'the Act') titled as Angrej Singh v.
Gurtej Singh.
2. Learned counsel appearing for the petitioner, inter alia, contends
that a complaint under Sections 138 of the Act was filed against the petitioner
on the ground of dishonouring of cheque bearing No.014949 dated 01.09.2017,
issued in favour of the complainant/respondent No.2 by the petitioner in
discharge of his liability. The petitioner was served notice of accusation under
Section 138 of the Act vide order dated 02.08.2018. Thereafter, on 27.04.2023,
non-bailable warrants were issued against the petitioner for 10.05.2023,
on account of receipt of report regarding bailable warrants issued
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against the accused, the same was not received back. On 10.05.2023, the trial
Court issued proclamation under Section 82 of Cr.P.C. against the petitioner
for 06.06.2023. On 01.07.2023, the trial Court declared the petitioner
proclaimed person and further ordered to furnish the list of his property.
Aggrieved by the said impugned orders dated 01.07.2023 (Annexure P-8) and
27.04.2023 (Annexure P-5), the petitioner has approached this Court by way of
instant petition.
3. Learned counsel appearing for the petitioner submits that the
notice issued to the petitioner was never served and, therefore, the finding of
the trial Court that the petitioner is intentionally evading his arrest, is
erroneous. Further, the trial Court vide order dated 10.05.2023 observed that
since non-bailable warrants have not been executed till date, he cannot be
served through ordinary process and issued proclamation under Section 82
Cr.P.C. for 06.06.2023. Ultimately, vide impugned order dated 01.07.2023, the
petitioner has been declared as proclaimed person. It is contended that both the
impugned orders are 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. Learned State counsel supports the orders 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, non-bailable warrants and proclamation were issued to secure his
presence.
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6. 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.
7. 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
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.
8. A perusal of the impugned orders reveals that the trial Court
issued non-bailable warrants and 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.
9. 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
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petitioner, in the present case, has himself come forward and has undertaken to
appear before the trial Court on each and every date.
10. 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 orders dated 01.07.2023 (Annexure P-8)
and 27.04.2023 (Annexure P-5), vide which, the petitioner was declared as
proclaimed person and non-bailable warrants were issued against him, are set
aside.
11. 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
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 Patients
Welfare Fund, PGI, Chandigarh for wasting precious time of the Court.
(HARPREET SINGH BRAR)
December 14, 2023 JUDGE
manisha
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
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