Punjab-Haryana High Court
Sukhvinder Kaur vs State Of Haryana on 19 March, 2024
Neutral Citation No:=2024:PHHC:039588
CRM-M-14205-2024 -1-
2024:PHHC:039588
119
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-14205-2024 (O&M)
Date of decision: 19.03.2024
Sukhvinder Kaur
... Petitioner
Vs.
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Digvijay, Advocate for
Mr. Yowan Sharma, 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 14.06.2023 (Annexure P-3) [wrongly mentioned as
01.08.2023 (Annexure P-2)] passed by the learned Judicial Magistrate 1st
Class, Kalka in complaint bearing No.NACT/189/2018 titled as 'Gurdeep
Singh Vs. Sukhvinder Kaur' (Annexure P-1), whereby the petitioner was
declared as proclaimed person and FIR No.229 dated 01.08.2023 under
Section 174-A of IPC, registered at Police Station Kalka as well as all the
consequential proceedings emanating therefrom.
2. Learned counsel appearing for the petitioner, inter alia, contends
that a complaint under Section 138 of N.I. Act was filed against the petitioner
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on the allegations that the complainant advanced friendly loan of Rs.20,000/-
to the petitioner-accused in the month of January, 2018 to be returned within
one month. After making repeated requests to return the amount, the petitioner
issued an account payee cheque bearing No.048716 dated 12.04.2018
amounting to Rs.20,000/- in favour of the complainant-respondent in
discharge of her liability. On presentation, aforesaid cheque was returned by
the bank vide memo dated 09.07.2018 with remarks "Insufficient Funds".
Thereafter, complainant-respondent served legal notice dated 10.07.2018 upon
the accused demanding the cheque amount, the petitioner-accused failed to
make the payment. He further contends that the petitioner was never served
with summons or warrants in the complaint and on 14.06.2023, the learned
trial Court declared the petitioner as proclaimed person and the intimation was
further sent to SHO concerned to facilitate him to lodge an FIR against the
proclaimed person for commission of offence under Section 174-A IPC.
Aggrieved by the said impugned order dated 14.06.2023 (Annexure P-2), 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,
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accepts notice on behalf of the respondent-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.
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
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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. 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 14.06.2023 (Annexure P-2),
vide which the petitioner was declared proclaimed person and FIR No.229
dated 01.08.2023 under Section 174-A of IPC, registered at Police Station
Kalka 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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