Punjab-Haryana High Court
Raja Qureshi vs State Of Haryana And Another on 29 November, 2023
Neutral Citation No:=2023:PHHC:151923
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122 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-59804-2023
Date of decision: 29.11.2023
Raja Qureshi ....Petitioner
Versus
State of Haryana and another ...Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Yashveer Kharb, Advocate
for the petitioner.
Mr. Gurmeet Singh, AAG, Haryana.
HARPREET SINGH BRAR, J. (ORAL)
Learned counsel for the petitioner wishes to withdraw the prayer
for quashing of Annexure P-1, Annexure P-2 and Annexure P-6 and confines his
prayer for quashing of the order dated 13.07.2023 (Annexure P-5) passed by the
learned Judicial Magistrate 1st Class, Panipat, whereby the petitioner has been
declared as proclaimed person.
2. Learned counsel appearing for the petitioner, inter alia, contends
that a complaint under Sections 138 & 142 of the Negotiable Instruments Act,
1881 (in short 'the Act') was filed against the petitioner on the ground of
dishonouring of cheques bearing No. 026905 dated 05.07.2019 amounting to
Rs.2,00,000/- and No. 026906 dated 05.07.2019 amounting to Rs. 3,00,000/-,
issued in favour of the complainant/respondent No.2 by the petitioner in
discharge of his liability.
3. Learned counsel appearing for the petitioner, inter alia, contends
that the petitioner along with other accused was summoned under Section 138
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of the Act vide order dated 04.09.2019 (Annexure P-2) for 12.02.2020. He
further submits that the petitioner has no concern with the King and King Layer
Poultry Farm and the same was being run by Hamid Hasan @ Chaman, Shoyab
Anwar, Bal Jahan and Shah Anwar and the address mentioned in the criminal
complaint is of Shoyab Anwar and Shah Anwar. Thereafter, on 12.02.2020,
presence of the accused/petitioner was secured through issuance of non-bailable
warrants for 27.10.2020. Thereafter, due to outbreak of pandemic COVID-19,
the matter was adjourned to 14.05.2021 and 28.01.2022 for the purpose already
fixed. On 28.01.2022, 10.11.2022 and 23.02.2023 on account of receipt of
report regarding non-bailable warrants issued against the accused not received
back or unexecuted, fresh non-bailable warrants against the petitioner were
issued for 03.05.2023. On 03.05.2023, the trial Court issued proclamation
under Section 82 of Cr.P.C. against the petitioner for 13.07.2023. On
13.07.2023, the trial Court declared the petitioner and other accused proclaimed
person and further ordered to attach his movable/immovable properties.
Aggrieved by the said impugned order dated 13.07.2023 (Annexure P-5), the
petitioner has approached this Court by way of instant petition.
4. Learned counsel appearing for the petitioner submits that the non-
bailable warrants issued to the petitioner were 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 orders dated 10.11.2022, 23.02.2023
and 03.05.2023 observed that since non-bailable warrants have not been
executed till date or not received back, he cannot be served through ordinary
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process and issued proclamation under Section 82 Cr.P.C. for 13.07.2023.
Ultimately, vide impugned order dated 13.07.2023, 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.
5. It is also submitted that the petitioner undertakes to appear before
the trial Court on each and every date.
6. Notice of motion.
7. Mr. Gurmeet Singh, AAG, Haryana, 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.
8. 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.
9. 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.
10. A perusal of the impugned order reveals that the trial Court issued
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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.
11. 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.
12. 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 13.07.2023 (Annexure P-5)
vide which the petitioner was declared proclaimed person is set aside.
13. 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
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Court, along with costs of Rs.10,000/- to be deposited with the District Legal
Services Authority, Panipat, for wasting precious time of the Court.
(HARPREET SINGH BRAR)
JUDGE
29.11.2023
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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