Punjab-Haryana High Court
Gurjeet Singh vs State Of Punjab on 18 March, 2024
Neutral Citation No:=2024:PHHC:039499
CRM-M-13894-2024 -1-
2024:PHHC:039499
143
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-13894-2024 (O&M)
Date of decision: 18.03.2024
Gurjeet Singh
... Petitioner
Vs.
State of Punjab and another
... Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. J.S. Chahal, Advocate
for the petitioner.
*******
HARPREET SINGH BRAR, J. (ORAL)
The present petition has been filed under Section 482 Cr.P.C. for
quashing of order dated 31.10.2023 (Annexure P-4) passed by the learned
Sub Divisional Judicial Magistrate, Dhuri in case CIS No.NACT-269-2022
titled as 'Mahinder Singh Vs. Gurjeet Singh', whereby the petitioner was
declared as proclaimed person and all the consequential proceedings
emanating therefrom.
2. Learned counsel appearing for the petitioner, inter alia,
contends that a complaint under Section 138 of the Negotiable Instruments
Act was filed against the petitioner on the ground of dishonouring of cheque
bearing No.000005 dated 21.06.2022 amounting to Rs.7,10,000/- issued in
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favour of the complainant/respondent No.2 by the petitioner in discharge of
his liability. The petitioner never received any summons. On 16.08.2023, the
learned trial Court issued proclamation under Sections 82 & 83 Cr.P.C.
against the petitioner, for 19.10.2023. Since proclamation was effected on
10.09.2023 and the period of 30 days has not lapsed, therefore, the case was
again adjourned to 31.10.2023 and on that date, the trial Court declared the
petitioner as proclaimed offender. Aggrieved by the said impugned order
dated 31.10.2023 (Annexure P-4), the petitioner has approached this Court
by way of instant petition. 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.
3. It is also 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 on behalf of respondent No.1-State 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 and with the consent of parties,
the matter is taken up for final disposal.
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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 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 notsuffer from the vice of arbitrariness or
unreasonableness.
8. 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.
9. The sole purpose of issuance of non-bailable warrants or
issuance of proclamation is to secure presence of the accused before the trial
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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 and the impugned order dated 31.10.2023 (Annexure P-
4), vide which the petitioner was declared proclaimed offender as well as all
the consequential proceedings emanating therefrom, are hereby set aside
subject to payment of Rs.10,000/- as costs to be deposited with the District
Legal Services Authority, Sangrur, for wasting precious time of the Court.
[ HARPREET SINGH BRAR ]
18.03.2024 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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