Punjab-Haryana High Court
Kulwant Singh vs State Of Punjab on 20 November, 2023
Neutral Citation No:=2023:PHHC:147307
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129 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-58260-2023
Date of decision: 20.11.2023
Kulwant Singh ....Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Raman Kumar, Advocate for
Mr. R.K. Kapila, Advocate
for the petitioner.
HARPREET SINGH BRAR, J. (ORAL)
The prayer in the present petition under Section 482 Cr.P.C. is for
quashing of order dated 15.03.2023 (Annexure P-5) vide which the petitioner
was declared as proclaimed person in a case bearing FIR No.0123 dated
27.10.2017 under Sections 406/420 of IPC registered at Police Station Sadar
Batala, District Batala.
2. Learned counsel for the petitioner contends that the petitioner was
already on regular bail and, thereafter, he kept on appearing before the trial
Court regularly, however, from 24.01.2022 to 10.08.2022, the petitioner was
absent as he has noted wrong dates due to pandemic COVID-19 and on
24.01.2022 & 04.04.2022, the Court proceeded to issue bailable warrants
against him in the sum of Rs.5,000/- and the case was fixed for 29.04.2022. On
29.04.2022, non-bailable warrants were issued against the accused/petitioner for
19.05.2022 and his surety bonds were forfeited to the State. On 19.05.2022,
non-bailable warrants issued against the accused/petitioner was received back
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unexecuted and proclamation under Section 82 of Cr.P.C. was issued for
18.07.2022. On 18.07.2022, as per the report of Ahlmad, summons issued,
were received back and the accused/petitioner was again summoned through
bailable warrants in the sum of Rs.5,000/- for 10.08.2022. On 10.08.2022,
petitioner had moved an application for surrendering before the learned trial
Court and the proceedings under Section 82 of Cr.P.C. initiated against him,
were recalled by the trial Court and he was released on fresh bail bonds of
Rs.50,000/-. Thereafter, on 22.09.2022, the petitioner appeared before the
learned trial Court and thereafter, from 22.09.2022 to 20.02.2023 he failed to
appear as he was suffering from jaundice and was being given Ayurvedic
treatment at home. On 15.03.2023, the trial Court declared the petitioner
proclaimed person and further ordered to file the list of property of accused/pe-
titioner. Aggrieved by the said impugned order dated 15.03.2023 (Annexure P-
5), the petitioner has approached this Court by way of instant petition.
3. Learned counsel appearing for the petitioner submits that the health
of the petitioner was not well due to which he could not appear before the trial
Court and, therefore, the finding of the trial Court that the petitioner is
intentionally concealing, is erroneous. Further, the trial Court vide order dated
27.01.2023 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 of Cr.P.C. for 20.02.2023. Ultimately, vide impugned order
dated 15.03.2023, 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.
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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. Ms. Navreet Kaur Barnala, AAG, Punjab who is present in Court,
accepts notice for the respondent-State 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.
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-
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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, the impugned order dated 15.03.2023 (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
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 District Legal
Services Authority, Gurdaspur, for wasting precious time of the Court.
(HARPREET SINGH BRAR)
JUDGE
20.11.2023
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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