Punjab-Haryana High Court
Simran Tyagi vs State Of Haryana And Anr on 19 March, 2024
Neutral Citation No:=2024:PHHC:038917
CRM-M-14266-2024 -1-
2024:PHHC:038917
121
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-14266-2024 (O&M)
Date of decision: 19.03.2024
Simran Tyagi
... Petitioner
Vs.
State of Punjab and another
... Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Ms. Pooja Jaglan, 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 25.08.2023 (Annexure P-3) passed by the learned
Judicial Magistrate 1st Class, Panipat in complaint bearing
No.NACT/1441/2020 dated 25.09.2020 titled as 'Neelam Vs. Jan Chetna
Marketing Network Pvt. Ltd. And others', whereby the petitioner was declared
as proclaimed person and FIR No.1282 dated 03.09.2023 under Section 174-A
of IPC, registered at Police Station Panipat City, Panipat as well as all the
consequential proceedings emanating therefrom.
2. Learned counsel appearing for the petitioner, inter alia, contends
that a complaint under Sections 138 & 142 of the Negotiable Instruments Act
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was filed against the petitioner and others on the ground of dishonouring of
cheque bearing No.514410 dated 30.05.2020 amounting to Rs.2,60,000/-
issued in favour of the complainant-respondent No.2 by co-accused of the
petitioner namely Sushil Tyagi in discharge of legal liability. On presentation,
aforesaid cheque was returned by the bank vide memo dated 24.08.2020 with
remarks "Funds Insufficient". Thereafter, complainant-respondent served legal
notice dated 01.09.2020 upon the accused demanding the cheque amount, but
the accused refused to return the amount. He further contends that the
proclamation was never published in the newspaper and even statement of the
witness(es) from neighbourhood of the petitioner was not recorded.
Thereafter, in gross violation of the provisions of 82 Cr.P.C., on 25.08.2023,
the learned trial Court declared the petitioner as proclaimed person. Aggrieved
by the said impugned order dated 25.08.2023 (Annexure P-3), 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. Ms. Geeta Sharma, DAG, Haryana, 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
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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.
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 not suffer 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
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absconder are mandatory. Any non-compliance therewith cannot be cured as
an 'irregularity' and renders the proclamation and proceedings subsequent
thereto a nullity. Once the impugned order passed under Section 82 Cr.P.C. is
found to be suffering from incurable illegality, the FIR registered on the basis
of the same under Section 174-A IPC would not survive either.
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 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 25.08.2023 (Annexure P-3),
vide which the petitioner was declared proclaimed person and FIR No.1282
dated 03.09.2023 under Section 174-A of IPC, registered at Police Station
Panipat City, Panipat 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 Poor Patient Welfare Fund, PGIMER, Chandigarh, for
wasting precious time of the Court.
[ HARPREET SINGH BRAR ]
19.03.2024 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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