Punjab-Haryana High Court
Bharat Yadav vs State Of Haryana And Another on 22 November, 2023
Neutral Citation No:=2023:PHHC:149500
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
122. CRM-M No.58882 of 2023
Date of Decision:22.11.2023
Bharat Yadav ...Petitioner
Versus
State of Punjab and another ... Respondents
CORAM : HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. S.K. Tripathi, Advocate
for the petitioner.
***
HARPREET SINGH BRAR, J. (ORAL)
1. The petitioner has approached this Court under Section 482 Cr.P.C.
seeking quashing of impugned order dated 21.08.2023 (Annexure P-3) passed
by the learned Judicial Magistrate Class 1st Class, Mohindergarh in NACT
No.318 dated 30.10.2018 titled as Yogesh Kumar Vs. Bharat Yadav whereby
the petitioner has been declared proclaimed person.
2. Learned counsel appearing for the petitioner, inter alia, contends that a
complaint under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the NI Act) was filed against the petitioner in which
he has been declared proclaimed person without following the mandate of
Section 82 Cr.P.C. It is further contended that the petitioner was never served
the summons or the proclamation issued by the trial Court, as the impugned
order does not indicate that the petitioner was served by the executing official
or publication notice was issued in any local newspaper. The petitioner has
already been disowned by his grandmother and he was not residing with her. It
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is also contended that the petitioner is ready and willing to join proceedings
before the trial Court and undertakes to appear on each and every date.
3. Per contra, Ms. Navreet Kaur Barnala, AAG, Punjab supports the
impugned order passed by the 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. When the petitioner did not turn up despite execution of
proclamation, he was declared a proclaimed person and proceedings under
Section 174A IPC were initiated against him.
4. I have heard learned counsel for the parties and perused the record of the
case with their able assistance. With the consent of parties, the case is taken up
for final disposal.
5. 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.
6. A perusal of the zimni orders (Annexure P-1) reveals that though notice
issued through registered AD was delivered on 24.12.2018 but was not
received back served or otherwise and since the petitioner did not appear,
warrants of arrest were issued, which remained unexecuted and ultimately,
proclamation was issued for securing his presence. A perusal of the impugned
order dated 21.08.2023 does not indicate that the petitioner was served by the
executing official or the proclamation was publicly read in the area of
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residence of the petitioner. The petitioner has already been disowned by his
grandmother. Furthermore, a perusal of zimni order dated 28.01.2019 reveals
that notice issued to the petitioner through registered AD was not received back
in any manner. Even the warrants of arrest remained unexecuted. 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 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 (Cri.) 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 as
nullity. Once the impugned order passed under Section 82 Cr.P.C. is found to
be suffering from incurable illegality, the proceedings initiated under Section
174A IPC would not survive either.
7. 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.
8. In view of the aforesaid facts and circumstances, the impugned order
dated 21.08.2023 (Annexure P-3) vide which the petitioner was declared
proclaimed person is set aside. The petitioner is directed to appear before the
trial Court on or before 04.12.2023 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
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Court, along with costs of `10,000/- to be deposited with the District Legal
Services Authority, Mohindergarh for wasting precious time of the Court.
9. The instant petition is allowed in above terms, without issuing notice to
respondent No.2 to save the time of the Court and to avoid litigation expenses
to be incurred on the part of respondent No.2.
(HARPREET SINGH BRAR)
JUDGE
November 22, 2023
Pankaj*
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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