Punjab-Haryana High Court
Chanpreet Singh vs State Of Punjab And Anr on 23 April, 2024
Neutral Citation No:=2024:PHHC:054847
CRM-M-19866-2024 -1-
2024:PHHC:054847
127 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
****
CRM-M-19866-2024
Date of Decision: 23.04.2024
Chanpreet Singh
..... Petitioner
Versus
State of Punjab and another
..... Respondents
CORAM: HON'BLE MR. JUSTICE HARSH BUNGER
Present: Mr. Sunny K.Singla, Advocate
for the petitioner.
*****
HARSH BUNGER J. (ORAL)
1. Petitioner (Chanpreet Singh) has filed the present petition under
Section 482 of the Code of Criminal Procedure for setting aside/quashing of
order dated 20.02.2024 (Annexure P-3) passed by learned Judicial
Magistrate Ist Class, Sangrur in complaint bearing No.NACT/821/2019
(Annexure P-1), filed under Section 138 of the Negotiable Instruments Act,
vide which petitioner has been declared as a proclaimed person.
2. Learned counsel for the petitioner submits that in the aforesaid
complaint (Annexure P-1), the petitioner was granted bail vide order dated
19.09.2023 and thereafter, he was regularly appearing before the trial Court;
however on account of oversight and communication gap between petitioner
and his counsel appearing before the trial Court; petitioner could not appear
before trial Court on 05.12.2023, 21.12.2023 and 10.01.2024. It is submitted
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that on 10.01.2024, bail of petitioner was cancelled, his bail bonds were
forfeited to the State and proclamation was ordered to be issued against him.
It is further submitted that on 20.01.2024, petitioner was declared as a
proclaimed person.
3. Learned counsel for the petitioner inter alia contends that the
procedure prescribed under Section 82 of the Code of Criminal Procedure
has not been followed while declaring the petitioner as a proclaimed person,
vide order dated 20.02.2024 (Annexure P-3), passed by the learned Judicial
Magistrate Ist Class, Sangrur. Learned counsel has referred to Annexure
P-4, i.e. the statement of Head Constable Jagtar Singh No.1047/SGR, Police
Station City Sangrur, who carried out the proclamation; according to which,
although the original proclamation was affixed at the gate of petitioner and
one copy was affixed at the public place, i.e. Bus Stand, Malerkotla,
however, proclamation was not read out publicly, as envisaged under
Section 82 of the Code of Criminal Procedure.
4. Further, it is submitted by learned counsel for the petitioner that
the non-appearance of the petitioner before the trial Court was neither
intentional nor deliberate but for the above said reason. Learned counsel for
the petitioner states that the petitioner is ready and willing to surrender
before the learned trial Court and undertakes to appear on each and every
date; however, he states that in the meantime, he may be protected.
5. Notice of motion.
6. At this stage, Mr. Ankit Grewal, Deputy Advocate General,
Punjab, who is present in Court, accepts notice on behalf of the
respondent/State. He submits that from the perusal of various zimni orders,
as reproduced by petitioner in paragraph No.4 of the petition, it is evident
that despite being aware of the pending proceedings, petitioner had failed to
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appear before the trial Court on 05.12.2023, and therefore, he was
summoned through non-bailable warrants for 21.12.2023. Thereafter again
on 21.12.2023, petitioner did not appear, and therefore on 10.01.2024, the
bail of petitioner was ordered to be cancelled and bail bonds were forfeited
to the State. He further submits that the petitioner has disobeyed the terms of
bail order/bonds, which shows his conduct; hence, he does not deserve any
leniency.
However, learned State counsel does not dispute the aforestated
factual position that the procedure prescribed under Section 82 of the Code
of Criminal Procedure has not been followed inasmuch as that the
proclamation was not read out publicly.
7. I have heard learned counsel for the parties and perused the
paper book as well as order dated 20.02.2024 (Annexure P-3) passed by
learned Judicial Magistrate Ist Class, Sangrur.
8. Before considering the submissions made by the respective
counsel, it would be appropriate to refer to Section 82 of the Code of
Criminal Procedure, which reads as under :-
"82. Proclamation for person absconding.
(1) If any Court has reason to believe (whether after
taking evidence or not) that any person against whom a
warrant has been issued by it has absconded or is
concealing himself so that such warrant cannot be
executed, such Court may publish a written
proclamation requiring him to appear at a specified
place and at a specified time not less than thirty days
from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous
place of the town or village in which such person
ordinarily resides;
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(b) it shall be affixed to some conspicuous part of the
house or homestead in which such person ordinarily
resides or to some conspicuous place of such town or
village;
(c) a copy thereof shall be affixed to some conspicuous
part of the Court- house;
(ii) the Court may also, if it thinks fit, direct a copy of
the proclamation to be published in a daily newspaper
circulating in the place in which such person ordinarily
resides.
(3) A statement in writing by the Court issuing the
proclamation to the effect that the proclamation was
duly published on a specified day, in the manner
specified in clause (i) of sub-section (2), shall be
conclusive evidence that the requirements of this section
have been complied with, and that the proclamation was
published on such day."
A perusal of above extracted Section 82 of the Code of
Criminal Procedure would manifest that proclamation shall be published as
follows:-
(i) (a) it shall be publicly read in some conspicuous
place of the town or village in which such person
ordinarily resides;
(b) it shall be affixed to some conspicuous part of the
house or homestead in which such person ordinarily
resides or to some conspicuous place of such town or
village;
(c) a copy thereof shall be affixed to some conspicuous
part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of
the proclamation to be published in a daily newspaper
circulating in the place in which such person ordinarily
resides."
9. In the instant case, the serving officer made the following
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service report :-
"Stated that proclamation of accused Charanjeet Singh
was entrusted to me. I affixed original proclamation at main
gate of accused and one copy was affixed at Bus stand
Malerkotla and the other copy was affixed on the notice
board of the Court. Copy of proclamation entrusted to me is
Ex. PA and my report dated 18.01.2024 in this regard is
Ex.PB."
A perusal of the above-said report would clearly indicate that
the provisions contained in Section 82(2)(i)(a) of the Code of Criminal
Procedure have not been complied with inasmuch as that the original
proclamation was affixed at the gate of petitioner and one copy was affixed
at the public place, i.e. Bus Stand, Malerkotla, however, proclamation was
not read out publicly. It is well settled that all provisions of Section 82(2)(i)
of the Code of Criminal Procedure are to be mandatorily complied with
cumulatively and not alternatively and non-compliance of even one
provision would render the proclamation as bad. Thus, the endeavor of the
serving officer to serve the proclamation notice upon the accused is deficient
and cannot be sustained.
10. Further, a perusal of order dated 10.01.2024 (reproduced at
page Nos.13-14 of the paper book) reflects that the trial Court proceeded to
pass the impugned order on account of absence of the petitioner on the date
fixed, i.e. 10.01.2024. It is observed that at times, the accused or his counsel
can be prevented by sufficient reasons to put an appearance before the Court
on a given date and every such absence cannot be necessarily construed as a
deliberate and willful absence.
11. This Court vide order dated 18.07.2018, passed in
CRM-M-29461-2018, titled as "Naveen Rao Vs. Central Bureau of
Investigation (CBI) ACB, Chandigarh, while considering somewhat similar
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issue, observed as under:-
"- x- -x-
Keeping in view the conduct of the petitioner as he came
back immediately after a period of 20 days, it appears that
there was no intention on the part of the petitioner to remain
absent. It can be an inadvertent mistake/lapse on his part.
Moreover, the petitioner is NRI and ready to abide by all
terms and conditions to be imposed by this Court or by the
trial Court.
Same issue was there before the Kerala High Court in
Mahesh vs. State of Kerala, 2011 (1) Crl.C.C. 834 wherein
the condition of bail was violated and due to absence of the
accused-petitioner, bail was cancelled. The
relevant portion of said judgment is reproduced as under: -
"20. To cancel the bail under section 437(5) or 439(2)
of the Code very cogent and overwhelming reasons are
also to be stated. The Court shall not cancel bail in a
routine manner, under section 437(5) or 439(2) of the
Code, as per law. This is the settled position of law.
But, the position under Section 446-A of the Code is
totally different. If the Magistrate Court is satisfied
that there is breach of condition of bail bond and
thereby, forfeiture of the bond, the bond automatically
stands cancelled under Section 446-A of the Code.
21. However, a mere violation of condition in the bail
order will not lead to automatic cancellation of bail
bond under Section 446-A of the Code. Apart from
violation of condition in the bail order, the Court must
also be satisfied that the bond is forfeited then alone,
bail bond would stand cancelled and the accused can
be proceeded against. It is the forfeiture of the bail
bond which is crucial under Section 446-A of the Code.
If the breach of condition is not wilful and is due to
reasons beyond his control, it cannot be said that there
is forfeiture of bond. The question is dealt with in
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Rajan v. State of Kerala, 2006 (4) KLT 429 and it is
held thus:
"A bond for appearance can be said to be
forfeited, only if there is a wilful default on the
part of the accused in not appearing before the
Court. It is needless to say that an accused can be
absent in Court due to various reasons on a
particular occasion. When the counsel files an
application, it follows that the accused was
vigilant and he had taken steps to instruct his
counsel to file an application. Such an accused
cannot he said to have forfeited the bond by
reason of any wilful default. It is only in cases
where there is wilful default on the part of the
accused to appear in Court, forfeiture of bond
will follow and penalty will incur."
22. In State of Kerala v. Anil Kumar, 2005 (4) KLT
SN 59, referring to cancellation of bail, this Court held
thus: "an innocent violation of any condition imposed
by the Court will not ipso facto lead to cancellation of
bail under section 439(2) Criminal Procedure Code.
The crucial and vital question is whether there has
been deliberate, contumacious and unjustified
infraction of the conditions imposed by the Court". It is
needless to say that if the Court cannot cancel bail, if
violation of condition is not wilful or deliberate, it is
only reasonable to hold that such violation (which is
not wilful or intentional) shall also not lead to an
automatic cancellation of bail bond under Section 446-
A of the Code."
In the present case also, the bail/surety bonds have been
cancelled as the petitioner left India without prior
permission of the Court. An application for exemption from
personal appearance was also moved, which was dismissed.
The petitioner is NRI and he went abroad without seeking
any permission from the Court, which has been stated to be
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inadvertent as he did not go through the terms and
conditions of bail but the circumstances were beyond his
control. The petitioner immediately came back to India and
came to know that his bail bonds have been cancelled.
There was no intention on his part to remain absent or to
avoid the Court proceedings. The petitioner remained ill
when he was abroad, remained there for a period of 20 days
and could not come back immediately.
Accordingly, the present petition is allowed and the
petitioner is directed to surrender before the trial Court on
the next date of hearing i.e., 19.07.2018 by furnishing an
undertaking before the trial Court that he will attend the
Court proceedings regularly and will not leave the country
without prior permission of the Court and abide by all terms
and conditions to be imposed by the trial Court. He is
directed to be released by the trial Court by furnishing
adequate surety/bail bonds to its satisfaction subject to
payment of cost of Rs.25000/- to be deposited with the trial
Court.
-x- - x -"
12. In the present case, the bail of the petitioner was cancelled and
his bail bonds/surety bonds were forfeited to the State as he did not appear
on the date fixed, i.e. 10.01.2024. Petitioner has stated that he could not
appear before the trial Court on the date fixed due to oversight and on
account of communication gap between him and his counsel. Further, it is
noticed that after declaration of petitioner as a proclaimed person, on dated
20.02.2024, he applied for anticipatory bail and thereafter he has filed the
instant petition within a short period thereafter. The explanation offered by
the petitioner for his non-appearance appears to be probable and the same is
accepted.
13. In view of the aforementioned facts/circumstances and
considering that the absence of petitioner before the trial Court was not
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intentional and that the petitioner is ready and willing to surrender and join
the proceedings and also to abide by all terms and conditions to be imposed
by this Court or by the trial Court, this Court is inclined to afford one last
opportunity to the petitioner to mend his ways. Moreover, joining of
proceedings by the petitioner, would ensure finalization of proceedings.
14. Keeping in view the aforesaid facts and circumstances,
impugned order dated 20.02.2024 (Annexure P-3) passed by learned Judicial
Magistrate Ist Class, Sangrur, being unsustainable in the eyes of law, is set
aside. Further, the petitioner is directed to appear before the trial Court on or
before 16.05.2024 and upon his appearance, the Court shall release him on
bail subject to his furnishing fresh bail bonds/surety bonds to its satisfaction
subject to payment of cost of Rs.10,000/- to be deposited with the "Poor
Patients' Welfare Fund, PGIMER, Chandigarh" and the said amount
would be spent for the treatment of poor patients within the knowledge of its
Medical Superintendent. The petitioner shall also give his undertaking by
way of an affidavit before the trial Court that he will attend the Court
proceedings regularly, unless specifically exempted by the Court.
15. Further, the concerned Station House Officer shall be informed
about the release of petitioner and the petitioner shall inform the concerned
Station House Officer about his address at which he intend to reside during
the pendency of trial and any change in the address shall be communicated
to the concerned Station House Officer, forthwith. The petitioner would also
furnish his mobile number to the concerned Station House Officer and keep
his mobile location 'on' till the conclusion of trial.
16. In case, the petitioner does not appear before the concerned
Court below on or before the date fixed i.e. 16.05.2024, then the instant
petition shall be deemed to have been dismissed.
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17. Present petition is disposed of in the abovesaid terms.
18. All pending application(s), if any, shall also stand closed.
23.04.2024 (HARSH BUNGER)
Apurva JUDGE
1. Whether speaking/reasoned : Yes/No
2. Whether reportable : Yes/No
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