Punjab-Haryana High Court
Jaswinder Singh vs State Of Ut Chandigarh And Anr on 6 March, 2024
Neutral Citation No:=2024:PHHC:032640
2024:PHHC:032640
120 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-11706-2024
Date of decision: 06.03.2024
Jaswinder Singh ....Petitioner
Versus
State of U.T. Chandigarh and another ...Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Munish Bhardwaj, Advocate
for the petitioner.
Mr. Manish Bansal, P.P., with
Mr. Ankush Singla, Advocate
for respondent No.1-U.T. Chandigarh.
HARPREET SINGH BRAR, J. (ORAL)
The present petition has been filed under Section 482 Cr.P.C.
seeking quashing of impugned order dated 19.12.2023 (Annexure P-11) passed
by the learned Judicial Magistrate 1st Class, U.T. Chandigarh in criminal
complaint i.e. NACT-3422 dated 03.05.2016 titled as 'Anil Sharda Vs.
Jaswinder Singh Riar' filed by respondent No.2 under Sections 138 & 142 of
the Negotiable Instruments Act, 1881 (in short 'the Act') vide which 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 Act was filed against the
petitioner on the ground of dishonouring of cheque bearing No.231966 dated
31.12.2015 amounting to Rs.6,90,000/- issued in favour of the
complainant/respondent No.2 by the petitioner in discharge of his liability. The
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petitioner was summoned under Section 138 of the Act vide summoning order
dated 21.07.2016 and it is submitted that petitioner has not received any
summons. He further submits that respondent No.2 has also made a complaint
to the police on the same set of allegations on the basis of which, FIR No.48
dated 05.03.2017 under Sections 406/420/466/467/468/471/120-B of IPC has
been registered at Police Station City Kharar, District SAS Nagar Mohali and
aggrieved by this, the petitioner has filed CRM-M-4361-2018 in this Court.
Vide order dated 08.12.2018, this Court issued notice of motion and directed the
trial Court to adjourn the proceedings beyond the date fixed. Thereafter, the
case was adjourned and ultimately it came up for hearing before this Court on
04.09.2023 and the same was dismissed. Thereafter, the case was fixed for
05.10.2023 before the learned trial Court. Counsel for the petitioner filed an
application for exemption from personal appearance of the petitioner only for
that day which was allowed and the case was adjourned for 12.10.2023. On
12.10.2023, neither the counsel for the petitioner nor the petitioner appeared
before the learned trial Court due to some personal difficulty and on account of
his absence, his bail was cancelled and his presence was secured through
issuance of non-bailable warrants. On 27.10.2023, the trial Court issued
proclamation under Section 82 of Cr.P.C. against the petitioner for 08.12.2023.
On 19.12.2023, the trial Court declared the petitioner proclaimed person
Aggrieved by the said impugned order dated 19.12.2023 (Annexure P-11), the
petitioner has approached this Court by way of instant petition.
3. 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
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erroneous. Further, the trial Court vide order dated 27.10.2023 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
Cr.P.C.. Ultimately, vide impugned order dated 19.12.2023, 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.
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. Mr. Manish Bansal, P.P., with Mr. Ankush Singla, Advocate for
respondent No.1-U.T. Chandigarh, 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.
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
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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-
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 peti-
tion is allowed, without issuing notice to respondent No.2 in order to save time
of the Court and to avoid litigation expenses to be incurred on the part of re-
spondent No.2 and the impugned order dated 19.12.2023 (Annexure P-11) 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
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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 Poor Patient
Welfare Fund, PGIMER, Chandigarh, for wasting precious time of the Court.
(HARPREET SINGH BRAR)
JUDGE
06.03.2024
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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