Punjab-Haryana High Court
Jaspreet Singh vs State Of Punjab on 19 January, 2024
Neutral Citation No:=2024:PHHC:007519
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122 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-2720-2024
Date of decision: 19.01.2024
Jaspreet Singh ....Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Arshdeep Singh Brar, Advocate
for the petitioner.
Mr. Subhash Godara, Addl.A.G., Punjab.
HARPREET SINGH BRAR, J. (ORAL)
The prayer in the present petition under Section 482 Cr.P.C. is for
quashing the order dated 01.12.2021 (Annexure P-5) passed by the learned
Chief Judicial Magistrate, Moga in case bearing FIR No.31 dated 07.02.2018
under Sections 325/323/34 of IPC (Anneuxre P-1), whereby, the petitioner has
been declared as proclaimed person.
2. Learned counsel appearing for the petitioner inter alia contends
that the petitioner was absented from the trial during the covid period and went
abroad as his file has matured and his studies were suffering due to pendency of
this false case. On 05.08.2021, on account of non-appearance of the
accused/petitioner, the learned trial Court issued non-bailable warrants of arrest
against the petitioner for 19.08.2021. On 19.08.2021, the learned trial Court
issued proclamation against the petitioner under Section 82 Cr.P.C. for
15.09.2021 and ultimately, on 01.12.2021, the trial Court declared the petitioner
as proclaimed person. Aggrieved by the said impugned order dated 01.12.2021
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(Annexure P-5), the petitioner has approached this Court by way of instant
petition.
3. Learned counsel appearing for the petitioner submits that the
impugned order is liable to be set aside on the ground that the mandate of
Section 82 Cr.P.C. has not been followed in its letter and spirit by the trial
Court. It is further submitted that it is a settled law that when the accused is
residing in a foreign country, attempt is to be made to serve s ummons upon him
through the Ministry of External Affairs and in the present case, no such attempt
has been made. In support of his arguments, counsel for the petitioner relies
upon the judgment passed by this Court in Sonu vs. State of Haryana 2021 (1)
RCR (Cri.) 319 and the judgment passed by the Gujarat High Court in
Govindbhai Patel Vs. State of Gujarat 2004 (4) RCR (Criminal) 830. It is
further submitted that the petitioner undertakes to appear before the trial Court
on each and every date.
4. Notice of motion.
5. Mr. Subhash Godara, Addl.A.G., Punjab, who is present in Court,
accepts notice for the respondent 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.
6. I have heard learned counsel for the parties and perused the record
of the case with their able assistance.
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
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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.
8. As far as possible, presence of the accused in the eventuality of his
non-appearance ought to be secured by issuing summons or bailable warrants
and non-bailable warrants/proclamation should not generally be issued. A
perusal of the impugned order reveals that the trial Court without issuing
summons or bailable warrants straight away issued proclamation, much less,
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 and non-recording of the
satisfaction itself makes such order suffering from incurable illegality. In the
judgment passed by this Court in Sonu's case (supra), it has been held that prior
issuance of warrant of arrest by the Court is sine qua non for issuance and
publication of the proclamation and the Court has to first issue warrant of arrest
against the person concerned. 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
petitioner in the present case has himself come forward and has undertaken to
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appear before the trial Court on each and every date.
10. In view of the aforesaid facts and circumstances, the present
petition is allowed and the impugned order dated 01.12.2021 (Annexure P-5)
vide which the petitioner was declared proclaimed person is hereby set aside.
The petitioner is directed to appear before the trial Court within a period of 08
weeks 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, Moga, for wasting precious time of the Court.
(HARPREET SINGH BRAR)
JUDGE
19.01.2024
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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