Punjab-Haryana High Court
Shiv Kumar vs State Of Punjab on 24 September, 2024
Neutral Citation No:=2024:PHHC:126152
CRM-M-46760
46760-2024 (O&M) -1--
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
123
CRM-M-46760-20242024 (O&M)
Date of decision: 24.09.2024
Shiv Kumar ...Petitioner
Versus
State of Punjab ...Respondents
...Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Shiv Kumar Sharma, Advocate
for the petitioner.
MANISHA BATRA, J. (Oral)
1. The instant petition has been filed by the petitioner under Section
528 of BNSS for quashing of order
orders dated 13.09.2021, 22.11.2021,
21.03.2022 and 09.06.20222,
09.06.20222, passed by the Judicial Magistrate First Class,
Baba Bakala Sahib in case titled as Major Singh vs. Shiv Kumar
Kumar,, arising out
of case bearing number NACT-105-2018,
NACT 2018, filed under S
Section
ection 138 of the
Negotiable Instruments Act, 1881 (for short 'N. I. Act')
Act'), whereby
proclamations have been issued against the petitioner as well as for quashing
of order dated 20.09.2022, whereby the petitioner had been declared a
proclaimed person.
2. The present petition has been filed by the petitioner on the
grounds and it has been argued by his counsel that the petitioner has been
falsely implicated in this case.
case The petitioner was never served with the
summons/warrants issued by the trial Court an
and he had been declared a
proclaimed person without following the proper procedure prescribed under
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Section 82 Cr.P.C. Hence, it is urged that the impugned order is liable to be
set aside.
3. I have heard learned counsel for the petitioner and have also gone
g
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 proceedings under Sect
Section
ion 82
Cr.P.C. as against the petitioner till the date of declaring him a proclaimed
person,, I am of the considered opinion that the impugned order dated
20.09.2022 suffers from some illegalities and is liable to be quashed with all
the consequential proceedings
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 declaring
him as a proclaimed person/offender.
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
HC)) 1783,
Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826, Shokat Ali
Vs. State of Haryna : 2020(2) RCR (Criminal) 339, Dilbagh Singh Vs. State
of Punjab : (P&H) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar Vs. State
of Haryana and another : 2013
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.
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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
22.03.2021 since the non-bailable
22.03.2021, bailable warrants issued against the petitioner were
received back unserved, the trial Court had ordere
ordered
d for issuance of
proclamation against him for 21.05.2021
21.05.2021. However, a bare perusal of the
orderss dated 22.03.2021 shows that the trial Court before ordering for
publication of proclamation has not recorded its satisfaction much less proper
satisfaction that
tha that the petitioner had absconded or was concealing himself
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
an be placed upon Rohit Kumar Vs. State
of Delhi : 2008 Crl. J. 2561.
7. 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
orders dated 13.09.2021, 22.11.2021,
21.03.2022 and 09.06.20222,
09.06.20222, passed by the Judicial Magistrate First Class,
Baba Bakala Sahib in case titled as Major Singh vs. Shiv Kumar
Kumar,, arising out
of case bearing number NACT-105-2018,
NACT 2018, filed under Section 138 of the N. I.
Act, whereby proclamations had been issued against the petitioner as well as
order dated 20.09.2022, whereby the petitioner had been declared a
proclaimed person, are quashed with all consequential proceedings arising
therefrom.
8. However, the petitioner is 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 his petition to be filed under Section 482 of
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BNSS. In the absence of any order for grant of anticipatory bail and on such
surrender, the 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.
9. 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.
10. Till the appearance of the petitioner before the trial Court, his
arrest shall
hall remain
remai stayed.
11. It is made clear that in case the petitioner fails to appear before
the trial Court within a period of four weeks from today, this petition shall be
deemed to be dismissed.
24.09.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned
speaki Yes/No
Whether reportable Yes/No
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