Kamal Kumar vs State Of Haryana on 16 February, 2024

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Punjab-Haryana High Court

Kamal Kumar vs State Of Haryana on 16 February, 2024

                                                          Neutral Citation No:=2024:PHHC:022466




                                                                     2024:PHHC:022466


121           IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

                                                  CRM-M-8473-2024
                                                  Date of decision: 16.02.2024

Kamal Kumar                                                           ....Petitioner

                                      Versus

State of Haryana                                                      ...Respondent

CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR

Present:      Mr. Aditya Sanghi, Advocate
              for the petitioner.

              Ms. Geeta Sharma, DAG, Haryana.

HARPREET SINGH BRAR, J. (ORAL)

The present petition has been filed under Section 482 Cr.P.C.

seeking quashing of impugned order dated 03.06.2023 (Annexure P-1) passed

by the learned Sub Divisional Judicial Magistrate, Dabwali vide which the

petitioner has been declared as proclaimed offender and all consequential

proceedings arising therefrom, in case bearing FIR No.360 dated 26.08.2018

under Section 13 of the Public Gambling Act, 1867 registered at Police Station

City Mandi Dabwali, District Sirsa, Haryana.

2. Learned counsel for the petitioner inter alia contends that the

petitioner was regularly appearing before the learned trial Court except on

29.03.2023. It is further submitted that the petitioner has noted down the wrong

date i.e. 29.07.2023 instead of 29.03.2023. Thereafter, when the petitioner went

to the Court at Dabwali for scribing some agreement, he met his counsel who

informed him that due to his non-appearance, his bail order has been cancelled

and his bail bonds/surety bonds have been forfeited to State vide order dated

29.03.2023 and he was ordered to be summoned through warrants of arrest for

17.04.2023.

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Thereafter, on 03.06.2023, the petitioner was declared as proclaimed person.

Aggrieved by the said impugned order dated 03.06.2023 (Annexure P-1), the

petitioner has approached this Court by way of instant petition.

3. Learned counsel appearing for the petitioner submits that the

petitioner was never served with any bailable warrants, non-bailable warrants or

even any proclamation and, therefore, the finding of the trial Court that the

petitioner is intentionally evading his arrest, is erroneous. Ultimately, vide

impugned order dated 03.06.2023, the petitioner has been declared as

proclaimed person. 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 and also on the ground of

unintentional non-appearance of the petitioner due to his act of noting down the

date wrongly.

4. It is also submitted that the petitioner undertakes to appear before

the trial Court on each and every date of hearing.

5. Notice of motion.

6. Ms. Geeta Sharma, DAG, Haryana, who is present in Court,

accepts notice for the respondent 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.

7. 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.

8. While the scheme of criminal justice system necessitates

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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.

9. 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

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.

10. 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 of hearing.

11. In view of the aforesaid facts and circumstances, the present

petition is allowed. The impugned order dated 03.06.2023 (Annexure P-1),

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vide which the petitioner was declared as proclaimed person, is hereby set

aside.

12. The petitioner is directed to appear before the trial Court within a

period four weeks from today and on his doing so, he shall be admitted

to bail on his furnishing the adequate bail bonds and surety bonds to the

satisfaction of the trial Court, along with costs of Rs.10,000/- to be deposited

with the District Legal Services Authority, Sirsa, for wasting precious time of

the Court.



                                              (HARPREET SINGH BRAR)
                                                    JUDGE
16.02.2024
Neha

             Whether speaking/reasoned        :     Yes/No
             Whether reportable               :     Yes/No




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