M/S Bansal Motors And Ors vs State Of Punjab And Anr
2024 Latest Caselaw 19186 P&H

Punjab-Haryana High Court

M/S Bansal Motors And Ors vs State Of Punjab And Anr on 23 October, 2024

                                 Neutral Citation No:=2024:PHHC:138871

CRM-M-52844
      52844-2024 (O&M)                                                   -1--




      IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
                  HARYANA AT CHANDIGARH
126
                                                  CRM-M-52844-20242024 (O&M)
                                                   Date of decision: 23.10.2024
                                                                          .2024

M/s Bansal Motors and others                                      ...Petitioners
                                                                  ...Petitioner

                                         Versus

State of Punjab and another                                     ...Respondents
                                                                ...Respondent

CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present:-   Mr. Neeraj Jain, Advocate
            for the petitioners.

MANISHA BATRA, J. (Oral)

1. The instant petition has been filed by the petitioner under Section

528 of BNSS, 2023 for quashing of order dated 18.11.2023,, passed by the

Judicial Magistrate First Class, Jalandhar in case titled as Amrit Malwa

Capital Ltd. vs. Bansal Motors and others others, arising out of complaint bearing

No. NACT/2242/2022, NACT/ , filed under Section 138 of the Negotiable Instruments

Act, 1881 (for short 'N. I. Act'),, whereby petitioners No. 2 and 3 had been

declared as proclaimed persons.

2. The present petition has been filed by the petitioner petitioners on the

grounds and it has been argued by their counsel that the petitioner petitioners have been

falsely implicated in this case.

case The petitioners were never served with any

notice/warrants issued by the trial Court and had been declared as proclaimed notice/warrants

persons without following the proper procedure prescribed under Section 82

Cr.P.C. It is further submitted that the complainant has also got registered an

FIR bearing No. 69 dated 22.04.2023, under Sections 420, 406 and 34 of IPC

at Police Station Station Division No. 6, District Jalandhar against them. However,

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vide order dated 05.09.2024, passed by this Court in CRM CRM-M-43652-2024, 2024,

they have been granted concession of interim bail and have been directed to

join investigation. The petitioners are ready to appear before the learned trial

Court and join the Court proceedings. With these broad submissions submissions,, it is

urged that the impugned order is liable to be set aside.

3. I have heard learned counsel for the petitioners at considerable

length and have also gone through the material placed on record.

4. On giving due deliberations to the contentions as raised by

learned counsel for the parties and on an overall perusal of the orders passed

by the trial Court from the date of initiating proceed proceedings ings under Section 82

Cr.P.C. as against petitioners No. 2 and 3 till the date of declaring them as

proclaimed persons,, I am of the considered opinion that the impugned order

dated 18.11.2023 suffers from material illegalities and is liable to be quashed

with ith all the consequential proceedings arising therefrom.

5. There are catena of judgments of different High Courts

discussing the requirements necessary for issuance and publication of

proclamation against an absconder under Section 82 Cr.P.C. and for de declaring claring

him as a proclaimed person/offender. These requirements have been discussed

from time to time in Rohit Kumar Vs. Stat Statee of Delhi : 2008 Crl. J. 2561,

Bishundayal Mahton and others Vs. Emperor : AIR 1943 Patna 366,

Devender Singh Negi Vs. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783,

Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826, Shokat Ali

Vs. State of Haryna : 2020(2) RCR (Crimin (Criminal) al) 339, Dilbagh Singh Vs. State

of Punjab : (P&H) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar Vs. State

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of Haryana and another : 2013 (4) RCR (Criminal) 550, Pawan Kumar

Gupta Vs. The State of W.B. : 1973 CriLJ 1368, Birad Dan Vs. State : 1958

CriLJ 965, Negi alias Debu Vs. State of U.P. and another, 1994 Cri LJ 1783

and Pal Singh Vs. The State : 1955 CriLJ 318.

6. After going through the material placed on record as well as the

copies of zimini orders passed by the trial Court Court, it is revealed that on

22.03.2023 .03.2023, since non-bailable bailable warrants issued against the petitioner petitioners were

received back unserved, the trial Court had ordered for effecting service upon

them through publication in the newspaper titled as Daily Ashiana for

09.05.2023. A bare perusal of this order shows that the trial Court before

ordering for publication of proclamation has not recorded its satisfaction much

less proper satisfaction that that the petitioners had absconded or were

concealing themselves themselves so that the warrant of arrest, previously issued, cannot

be executed, despite reasonable diligence, which was in violation of the

provisions of Section 82(1) of Cr.P.C. Reliance in this regard can be placed

upon Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561.

7. It is further revealed from the record that the case was adjourned

on five consecutive dates due to non-deposit non deposit of publication charges by the

complainant. Itt was eventually deposited on 29.08.2023 and proclamation was

again ordered to be published in 'Daily Daily Ashiana Ashiana'. The publication was

effected on 10.10.2023.

10 Since ince the mandatory period of 30 days had not

elapsed, hence, on 27.10.2023, the case was adjourned to 18.11.2023 for

awaiting the presence of petitioners No. 2 and 3. However, while adjourning djourning

the case to 18.11.2023, the trial Court failed to consider the fact that it could

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not have extended the time by simply adjourning the case as a fresh

publication was required to be published, published once the period between issuance of

publication of proclamation and the specified period of hearing was less than

30 days. Reference in this context can be made to Dilbagh Singh Vs. State of

Punjab (P&H) : 2015 (8) R.C.R. (criminal) 166

8. More so, the publication was effected on 10.10.2023, requiring

petitioners No. 2 and 3 to cause their appearance before the trial Court on

27.10.2023, which means they were not granted mandatory period of 30 days

to cause their appearance before the Court concerned. Hence, ence, the same was in

clear violation of the provisions of Section 82(1) Cr.P.C., as per which, a

specified time of not less than 30 days is required to be given to the accused

from the date of publishing such proclamation which is mandatory in nature.

Reliance liance in this regard can be placed upon Gurappa Gugal and others Vs.

State of Mysore : 1969 CriLJ 826 and Shokat Ali Vs. State of Haryna :

2020(2) RCR (Criminal) 339.

9. Accordingly, in view of the discussion as made above and also in

view of the ratio of law as laid down in above cited authorities authorities,, the present

petition is allowed and the impugned order 18.11.2023, passed by the learned

Judicial Magistrate First Class, Jalandhar in case titled as Amrit Malwa

Capital Ltd. vs. vs. Bansal Motors and others others, arising out complaint bearing

No. NACT/2242/2022, filed under Section 138 of the N. I. Act Act,, whereby

petitioners No. 2 and 3 had been declared as proclaimed persons,, is quashed

with all consequential consequential proceedings arising therefrom.

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10. However, petitioner Nos. 2 and 3 are directed to surrender before

the Court concerned within a period of four weeks, subject to order for grant

of anticipatory bail, if any passed on their petitions to be filed under der Section

482 of BNSS.

BNSS. In the absence of any order for grant of anticipatory bail and on

such surrender, the petitioners petitioner shall be liable to be remanded to judicial

custody subject to any order for grant of regular bail to be passed by the

concerned Court in accordance with law.

11. Needless to observe that in case any application is filed before

the concerned Court for grant of regular bail, then the concerned Court shall

be bound to dispose of the same expeditiously and that nothing in this order

shall be treated as expression of any opinion on merits so as to bind or

influence the concerned Court in disposal of the same.

12. Till the appearance of the petitioner petitioners before the trial Court, their

arrest shall hall remain remai stayed.

13. It is made clear that in case the petitioner petitioners fail to appear before

the trial Court within a period of four weeks from today, this petition shall be

deemed to be dismissed.

23.10.2024
     .2024                                                (MANISHA BATRA)
Waseem Ansari                                                 JUDGE



          Whether speaking/reasoned                       Yes/No

          Whether reportable                              Yes/No




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