The High Court
Case Details
CRM-M-11321 11321-2023 (O&M) 8587 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH CHANDIGARH 273 RAJPAL RAJPAL CRM-M-11321-2023 (O&M) (O&M) DECIDED ON: 30.10.202 .2025 VERSUS VERSUS .....PETITIONER .....PETITIONER AND ANOTHER STATE OF HARYANA AND ANOTHER STATE OF .....RESPONDENTS .....RESPONDENT SURYA PRATAP SINGH CORAM: HON'BLE MR. JUSTICE SURYA PRATAP SINGH CORAM: HON'BLE MR. JUSTICE Present: Mr. Sandeep Yadav, Advocate for , Advocate for the petitioner.
Legal Reasoning
Mr. N.P. Chandel, AAG, Haryana. Mr. N.P. Chandel, AAG, Haryana. SURYA PRATAP SINGH, J (ORAL) SURYA PRATAP SINGH 1. The order dated 06.12.2017 ) passed by the 06.12.2017 (Annexure P-2) passed by the learned Judicial Magistrate 1 Judicial Magistrate 1st Class Rewari referred to as Class Rewari, hereinafter being referred to as under Section “trial Court” is under challenge in the present petition filed under Section “trial Court” is under challenge in the present petition “trial Court” is under challenge in the present petition ereinafter referred to as 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as 482 of the Code of Criminal Procedure, 1973, h 482 of the Code of Criminal Procedure, 1973, h ” only. “CrPC” only. 2. By virtue of abovementioned order, t he learned trial Court mentioned order, the learned trial Court while holding a trial for the commission of offence punishable under Section while holding a trial for the commission of offence punishable under Section while holding a trial for the commission of offence punishable under Section while holding a trial for the commission of offence punishable under Section the petitioner to be a 138 of Negotiable Instruments Act, declared the petitioner to be a 138 of Negotiable Instruments Act, 138 of Negotiable Instruments Act, GAURAV THAKUR 2025.11.04 18:25 I attest to the accuracy and integrity of this document CRM-M-11321 11321-2023 (O&M) 8587 2 proclaimed person, which led to FIR No.388 dated proclaimed 30.07.2021 under Section , which led to FIR No.388 dated 30.07.2021 under Section A of Indian Penal Code, Police Station Model Town, Rewari. A of Indian Penal Code, Police Station Model Town, Rewari. 174-A of Indian Penal Code, Police Station Model Town, Rewari. 3. shell, the facts emerging from record are that the In nut-shell, the facts emerging from record are that the shell, the facts emerging from record are that the petitioner was facing a trial for the commission of offence punishable under petitioner was facing a trial for the commission of offence punishable under petitioner was facing a trial for the commission of offence punishable under petitioner was facing a trial for the commission of offence punishable under Section 138 of Negotiable Instruments Section 138 of Act, and during the course of nstruments Act, and during the course of when he failed to appear before the learned trial abovementioned trial, when he failed to appear before the learned trial when he failed to appear before the learned trial abovementioned trial, , the learned trial Court arrived at a conclusion that through ordinary Court, the learned trial Court arrived at a conclusion that through ordinary , the learned trial Court arrived at a conclusion that through ordinary , the learned trial Court arrived at a conclusion that through ordinary d. As such, process, presence of the petitioner in the Court cannot be procured. As such, process, presence of the petitioner in the Court cannot be procure process, presence of the petitioner in the Court cannot be procure the learned trial Court issued proclamation against the petitioner, and when the learned trial Court issued proclamation against the petitioner, and when the learned trial Court issued proclamation against the petitioner, and when the learned trial Court issued proclamation against the petitioner, and when tioned proclamation was affixed, the learned trial Court, by the abovementioned proclamation was affixed, the learned trial Court, by tioned proclamation was affixed, the learned trial Court, by the abovemen virtue of impugned order, declared the petitioner to be a proclaimed person. virtue of impugned order, declared the petitioner to be a proclaimed person. virtue of impugned order, declared the petitioner to be a proclaimed person. virtue of impugned order, declared the petitioner to be a proclaimed person. 4. petition has been filed by the petitioner by alleging The present petition has been filed by the petitioner by alleging petition has been filed by the petitioner by alleging
Decision
and deserves to that the impugned order is not sustainable in the eyes of law and deserves to that the impugned order is not sustainable that the impugned order is not sustainable be quashed as the necessary procedure, prescribed under be quashed as the necessary procedure Section 84 of the prescribed under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 Bharatiya Nagarik Suraksha Sanhita (erstwhile Section 82 of CrPC), , 2023 (erstwhile Section 82 of CrPC) specifically alleged by has not been complied with. In this regard, it has been specifically alleged by has not been complied with. In this regard, it has has not been complied with. In this regard, it has the petitioner that the proclamation was not publicly read, as prescribed the petitioner that the proclamation was not publicly read, as prescribed the petitioner that the proclamation was not publicly read, as prescribed the petitioner that the proclamation was not publicly read, as prescribed under the law. under the law. 5. 6. Heard. learned It has been contended on behalf of petitioner that the learned It has been contended on behalf of pe trial Court has committed an error when without following due process, it trial Court has committed an error when without following due process, it trial Court has committed an error when without following due process, it trial Court has committed an error when without following due process, it declared the petitioner to be a proclaimed person. According to learned declared the petitioner to be a proclaimed person. According to learned declared the petitioner to be a proclaimed person. According to learned declared the petitioner to be a proclaimed person. According to learned counsel for the petitioner, one of the basic steps to be taken during counsel for the petitioner, one of the basic counsel for the petitioner, one of the basic steps to be taken during the proclamation was the reading of proclamation at a public place, course of proclamation was the reading of proclamation at a public place, proclamation was the reading of proclamation at a public place, course of and that in the present case, the executing Constable had not publicly read and that in the present case, the executing Constable had not publicly read and that in the present case, the executing Constable had not publicly read and that in the present case, the executing Constable had not publicly read GAURAV THAKUR 2025.11.04 18:25 I attest to the accuracy and integrity of this document CRM-M-11321 11321-2023 (O&M) 8587 3 the proclamation at a public place, and thus, the entire procedure adopted by the proclamation at a public place, and thus, the entire procedure adopted by the proclamation at a public place, and thus, the entire procedure adopted by the proclamation at a public place, and thus, the entire procedure adopted by fective. the learned trial Court is rendered defective. the learned trial Court is rendered de 7. Per contra, the learned State Counsel has argued that it is an the learned State Counsel has argued that it is an admitted fact in the present case that the petitioner had not been admitted fact appearing the petitioner had not been appearing trial for the commission of offence before the learned trial Court in the trial for the commission of offence trial for the commission of offence before the learned trial Court punishable under Section 138 of NI Act. As per learned State Counsel punishable under Section 138 of NI Act. when As per learned State Counsel, when the petitioner himself was guilty of non the petitioner before the Court, he himself was guilty of non-appearance before the Court, he of any technical defect in the procedure adopted cannot take the advantage of any technical defect in the procedure adopted of any technical defect in the procedure adopted cannot take by the learned trial Court. by the learned trial Court. 8. 9. The record has been perused carefully. The record has been perused carefully. A perusal of the record shows that the petitioner has placed on A perusal of the record shows that the petitioner has placed on A perusal of the record shows that the petitioner has placed on copy of the statement of the Executing Constable copy of the statement of the Executing Constabl record a translated copy of the statement of the Executing Constabl record a recorded by the learned trial Court, which was the foundation of recorded by the learned trial Court declaring , which was the foundation of declaring the petitioner to be a proclaimed person the petitioner to be a proclaimed . The statement of the Executing person. The statement of the Executing Constable, namely HC Bhudev, dated 06.12.2017 Constable, namely 06.12.2017 reads as under:- Stated that on dated 27.10.2017 with summons/notice gone to “Stated that on dated 27.10.2017 with summons/notice gone to Stated that on dated 27.10.2017 with summons/notice gone to house of accused Rajpal son of Kanwar Singh resident of house of accused Rajpal son of Kanwar Singh resident of house of accused Rajpal son of Kanwar Singh resident of Jakhopur, who was not present at home. The respectable Jakhopur, who was not present at home. The respectable Jakhopur, who was not present at home. The respectable persons of village stated that he was residing somewhere persons of village stated that he was residing somewhere persons of village stated that he was residing somewhere ot. Copy of notice was pasted at outside, whose address was not. Copy of notice was pasted at outside, whose address was n the house of petitioner in presence of respectable persons and the house of petitioner in presence of respectable persons and the house of petitioner in presence of respectable persons and stand of village and one another notice was pasted at the bus-stand of village and one another notice was pasted at the bus notice was pasted in the Rewari Court premises and one notice notice was pasted in the Rewari Court premises and one notice notice was pasted in the Rewari Court premises and one notice was present after report for further action.” was present after report for further 10. mentioned statement of the A bare perusal of the above-mentioned statement of the A bare perusal of the above named Executing Constable had Executing Constable shows that the above-named Executing Constable had Executing Constable shows that the above Executing Constable shows that the above GAURAV THAKUR 2025.11.04 18:25 I attest to the accuracy and integrity of this document CRM-M-11321 11321-2023 (O&M) 8587 4 not publicly read the contents of the not publicly read the contents of proclamation. The order dated the proclamation. The order dated 06.12.2017 shows that merely on the basis of 06.12.2017 mentioned statement of rely on the basis of abovementioned statement of proclaimed the Executing Constable, the petitioner has been declared a proclaimed the Executing Constable, the petitioner has been declared the Executing Constable, the petitioner has been declared person. 11. mentioned procedure adopted by the With regard to the above-mentioned procedure adopted by the mentioned procedure adopted by the (2) Cr.P.C lays Executing Constable, it is relevant to mention that Section 82(2) Cr.P.C lays Executing Constable, it is relevant to mention that Section 82 Executing Constable, it is relevant to mention that Section 82 that following steps are necessary to be taken before declaring a down that following steps are necessary to be taken before declaring a that following steps are necessary to be taken before declaring a that following steps are necessary to be taken before declaring a person to be a proclaimed person:- person to be a proclaimed person: “(2) The proclamation shall be published as follows:- “(2) The proclamation shall be published as follows: (i) (a) it shall be publicly read in some conspicuous place (i) (a) it shall be publicly read in some conspicuous place (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person of the town or village in which such pers of the town or village in which such pers ordinarily resides; ordinarily resides; (b) it shall be affixed to some conspicuous part of the it shall be affixed to some conspicuous part of the it shall be affixed to some conspicuous part of the in which such person house or homestead in which such person house or homestead in which such person house or homestead ordinarily resides or to some conspicuous place of ordinarily resides or to some conspicuous place of ordinarily resides or to some conspicuous place of such town or village; such town or village; a copy thereof shall be affixed to some conspicuous a copy thereof shall be affixed to some conspicuous (c) a copy thereof shall be affixed to some conspicuous part of the Court f the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the Court may also, if it thinks fit, direct a copy of the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily the proclamation to be published in a daily the proclamation to be published in a daily newspaper circulating in the place in which such newspaper circulating in the place in which such newspaper circulating in the place in which such person ordinarily resides.” person ordinarily resides.” 12. With regard to mandatory nature of above mentioned procedure, rd to mandatory nature of abovementioned procedure, it has been repeatedly observed by this Court, that the compliance of above it has been repeatedly observed by this Court, that the compliance of above it has been repeatedly observed by this Court, that the compliance of above it has been repeatedly observed by this Court, that the compliance of above mentioned provisions of Section 82(2) of Cr.P.C. is mandatory in nature. It mentioned provisions of Section 82(2) of Cr.P.C. is mandatory in nature. It mentioned provisions of Section 82(2) of Cr.P.C. is mandatory in nature. It mentioned provisions of Section 82(2) of Cr.P.C. is mandatory in nature. It has also been held that in case the above process is not adopted in letter and has also been held that in case the above process is not adopted in letter and has also been held that in case the above process is not adopted in letter and has also been held that in case the above process is not adopted in letter and spirit, the order declaring a person to be a proclaimed it, the impugned order declaring a person to be a proclaimed order declaring a person to be a proclaimed offender/proclaimed person is defective. offender/proclaimed person is defective. GAURAV THAKUR 2025.11.04 18:25 I attest to the accuracy and integrity of this document CRM-M-11321 11321-2023 (O&M) 8587 5 13. that the In addition to above, it is also relevant to mention here that the In addition to above, it is also relevant to mention statement of executing Constable no where depicts that the proclamation was ement of executing Constable nowhere depicts that the proclamation was where depicts that the proclamation was ver at a public place in the area where the petitioner ordinarily resides, read over at a public place in the area where the petitioner ordinarily resides, ver at a public place in the area where the petitioner ordinarily resides, ver at a public place in the area where the petitioner ordinarily resides, impugned order as prescribed under Section 82(2)(i)(a) Cr.P.C., and the impugned order as prescribed under Section 82(2)(i)(a) Cr.P.C., as prescribed under Section 82(2)(i)(a) Cr.P.C., said person to be a proclaimed person/proclaimed declaring the abovesaid person to be a proclaimed person/proclaimed said person to be a proclaimed person/proclaimed declaring the above in the eyes of law. Similar view has offender is defective and not sustainable in the eyes of law. Similar view has in the eyes of law. Similar view has offender is defective and not sustainable Pal Singh Santa Singh v. State been taken by this High Court in the cases of Pal Singh Santa Singh v. State been taken by this High Court in the cases of been taken by this High Court in the cases of Tajinder Singh v. State of Punjab (CRM- AIR 1955 Punjab 18 and Tajinder Singh v. State of Punjab (CRM AIR 1955 Punjab 18 -M- 2024, decided on 07.05.2024). On 2024, decided on 07.05.2024) 21736-2024, decided on 07.05.2024) , this account also, the the abovementioned proclamation seems to be defective. mentioned proclamation seems to be defective. 14. Taking Taking into consideration into consideration of the cumulative effect of the cumulative effect the the abovementioned facts as there was a defect in affixation of proclamation abovementioned facts as was a defect in affixation of proclamation, i.e. reading of summons in public place, non-reading of summons in public place passed , the order dated 06.12.2017 passed by the learned trial Court is learned trial Court is hereby held to be defective and not sustainable hereby held to be defective and not sustainable in the eyes of law. Resultantly, the present petition is in the eyes present petition is hereby allowed and and the is hereby impugned order dated 06.12.2017 passed by the learned trial Court is hereby impugned order dated 06.12.2017 passed by the learned trial Court impugned order dated 06.12.2017 passed by the learned trial Court quashed. 15. abovementioned observations, once the order dated In view of abovementioned observations, once the order dated abovementioned observations, once the order dated 06.12.2017 passed by the learned trial Court, whereby the petitioner was 06.12.2017 passed by the learned trial Court, whereby the petitioner was 06.12.2017 passed by the learned trial Court, whereby the petitioner was 06.12.2017 passed by the learned trial Court, whereby the petitioner was declared to be a proclaimed to be a proclaimed person, has been quashed being defective , the , has been quashed being defective, the enal Code, FIR No.388 dated 30.07.2021 under Section 174-A of Indian Penal Code, FIR No.388 dated 30.07.2021 under Section 174 FIR No.388 dated 30.07.2021 under Section 174 Police Station Model Town, Rewari, Police Station Model Town, Rewari, Police Station Model Town, Rewari, lodged lodg lodg in compliance of in compliance of abovementioned order, is rendered without any foundation abovementioned order without any foundation, and thus, , and thus, the GAURAV THAKUR 2025.11.04 18:25 I attest to the accuracy and integrity of this document CRM-M-11321 11321-2023 (O&M) 8587 6 same, too, deserves to be quashed. Hence, the abovementioned FIR same, too, Hence, the abovementioned FIR, too, , too, is hereby quashed, accordingly. hereby quashed 16. Gaurav Thakur Whether speaking/reasoned Whether speaking/reasoned Whether reportable Whether reportable :Yes/No :Yes/No : Yes/No : Yes/ GAURAV THAKUR 2025.11.04 18:25 I attest to the accuracy and integrity of this document