Punjab-Haryana High Court
Ashok Gandhi vs State Of Punjab And Another on 13 March, 2024
Neutral Citation No:=2024:PHHC:035928
2024:PHHC:035928
117 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-41505-2023
Date of decision: 13.03.2024
Ashok Gandhi ....Petitioner
Versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Ms. Smrita Devi, Advocate for
Mr. Anil Sharma, 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 of impugned order dated 09.09.2022 (Annexure P-4) vide which the
petitioner has been declared as proclaimed person and impugned order dated
27.10.2021 (Annexure P-3), whereby, the bail order has been cancelled and bail
bonds/surety bonds of the petitioner have been cancelled and forfeited to the
State followed by issuance of non-bailable warrants and all other subsequent
proceedings in complaint No.285 of 2019 titled as 'Vijay Kumar Vs. Ashok
Gandhi.'
2. Learned counsel appearing for the petitioner, inter alia, contends
that petitioner was on regular bail. Thereafter, due to outbreak of pandemic
COVID-19, the matter could not be taken up. Thereafter, on 27.10.2021, the
learned trial Court, without issuing notice to the petitioner, cancelled bail order
of the petitioner and bail bonds/surety bonds were cancelled and forfeited to the
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State followed by issuance of non-bailable warrants for 09.12.2021. On
10.01.2022, presence of the accused/petitioner was secured through issuance of
fresh non-bailable warrants for 09.05.2022. On 09.05.2022, on account of
receipt of report regarding non-bailable warrants issued against the accused
received back unserved, the trial Court issued proclamation under Section 82 of
Cr.P.C. against the petitioner for 09.09.2022. On 09.09.2022, the trial Court
declared the petitioner as proclaimed person. Aggrieved by the said impugned
orders dated 27.10.2021 (Annexure P-3) & 09.09.2022 (Annexure P-4), 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
erroneous. Further, the trial Court vide order dated 09.05.2022 observed that
petitioner is avoiding his service and issued proclamation under Section 82
Cr.P.C. for 09.09.2022. Ultimately, vide impugned order dated 09.09.2022, 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. Subhash Godara, Addl.A.G., Punjab, who is present in Court,
accepts notice for respondent No.1 and supports the order passed by the learned
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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 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.
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
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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
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 orders dated 27.10.2021 (Annexure P-3)
& 09.09.2022 (Annexure P-4) vide which the bail bonds and bail order of the
petitioner was cancelled and non-bailable warrants were issued and the
petitioner was declared as proclaimed person, are hereby 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
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, Muktsar, for wasting precious time of the Court.
(HARPREET SINGH BRAR)
JUDGE
13.03.2024
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:035928
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