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