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Judgment
SHALINI SINGH NAGPAL J.
Petitioner's Dalbir Arya and another, accused in complaint No. NACT-6696-2018 under Sections 138 and 142 Negotiable Instruments Act, titled "Cholamandlam Investment & Finance Ltd. Vs. Arya Construction Company and Another" has filed this petition under Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 for quashing of order dated 10.02.2020 of learned Judicial Magistrate Ist Class, Karnal declaring them "proclaimed persons" and for quashing of FIR No.0582 dated 01.10.2021 under Section 174-A Indian Penal Code, Police Station Karnal Civil Lines, District Karnal, Haryana and all subsequent proceedings arising therefrom.
Learned counsel for the petitioners submits that petitioners were summoned as accused in the aforementioned complaint by learned JMIC, Karnal. The summons/warrants were never served upon them. Without complying with the mandatory requirements of Section 82 Cr.P.C., he was declared a proclaimed person by learned JMIC, Karnal who directed initiation of proceedings under Section 174-A IPC and FIR No.0582 dated 01.10.2021 under Section 174-A Indian Penal Code was registered against them at Police Station Civil Lines, Karnal. When petitioners learnt about pendency of the complaint, he appeared before the trial Court, sought bail and the trial culminated in their acquittal, vide judgment dated 25.07.2023 of learned JMIC, Karnal. Since, petitioners were acquitted in the main case wherein order declaring them proclaimed persons was passed, their prosecution in the case under Section 174-A IPC was without foundation and also deserved to be quashed. Continuation of the proceedings under Section 174-A IPC would serve no useful purpose and would only cause unnecessary harassment. Thus, impugned order dated 10.02.2020 of learned JMIC, Karnal and subsequent FIR No.0582 dated 01.10.2021 under Section 174-A Indian Penal Code, Police Station Karnal Civil Lines, District Karnal, Haryana were liable to be set aside.
Notice of motion.
Mr. Vikas Bhardwaj, AAG, Haryana, accepts notice appears on behalf of respondent No.1 State and opposes the petition under Section 528 of BNSS arguing that despite acquittal of the petitioners in the main case under Sections 138 and 142 of the Negotiable Instruments Act, 1881, proceedings under Section 174-A IPC were to continue independently.
Since the main case under Sections 138 and 142 of the Negotiable Instruments Act, 1881 has culminated in acquittal, notice to respondent No.2 is dispensed with.
Hon'ble Supreme Court of India in Daljit Singh Versus State of Haryana and another, CRA No. 4359 of 2024, Decided on 02.01.2025 while dealing with an identical issue observed as under:
'...7.3 Now, what happens if the status under Section 82 Cr.P.C. is nullified i.e., the person subjected to such proclamation, by virtue of subsequent developments is no longer required to be presented before a Court of law. Then, can the prosecution still proceed against such a person for having not appeared before a Court during the time that the process was in effect. The answer is in the affirmative. We say so for the following reasons:-
(i)The language of Section 174A, IPC says “whoever fails to appear at the specified place and the specified time as required by proclamation...”. This implies that the very instance at which a person is directed to appear, and he does not do so, this Section comes into play;
(ii)What further flows from the language employed is that the instance of non-appearance becomes an infraction of the Section, and therefore, prosecution therefor would be independent of Section 82, Cr.P.C. being in effect;
(iii)So, while proceedings under Section 174A IPC cannot be initiated independent of Section 82, Cr.P.C., i.e., can only be started post the issuance of proclamation, they can continue if the said proclamation is no longer in effect.
(iv)We find that the Delhi High Court has taken this view, i.e., that Section 174A, IPC is a stand-alone offence in Mukesh Bhatia v.State (NCT of Delhi)19;Divya Verma v. State 20; Sameena & Anr. v. State GNCT of Delhi & Anr.21 the reasons afore-stated, we agree with the findings made in these judgments/orders. At the same time, it stands clarified that we have not commented on the merits of the cases.
(v)Granted that the offence prescribed in Section 174A IPC is indeed stand-alone, given that it arises out of an original offence in connection with which proceedings under Section 82Cr.P.C. is initiated and in the said offence the accused stands, subsequently, acquitted, it would be permissible in law for the Court seized of the trial under such offence, to take note of such a development and treat the same as a ground to draw the proceedings to a close, should such a prayer be made and the circumstances of the case so warrant.
8.In conclusion, we hold that Section 174 A IPC is an independent, substantive offence, that can continue even if the proclamation under Section 82, Cr.P.C. is extinguished. It is a stand-alone offence. That being the position of law, let us now turn to the present facts. As we have already noted supra, the Appellant stands acquitted of the main offence.
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11.The Appellant has been acquitted which means that there is no case for which his presence is required to be secured. Resultantly, the appeal is allowed. In the attending facts and circumstances of the case, i.e. that the original offence pertains to the year 2010; the money subject matter of dispute stands paid, the judgment of the High Court with the particulars as mentioned in paragraph 1 of this judgment, stands quashed and set aside. All criminal proceedings, inclusive of the FIR under Section 174 A IPC, shall stand closed. The Appellant's status, as a 'proclaimed person' stands quashed.'
A co-ordinate Bench of this Court in CRM-M-43813- 2018 titled "Baldev Chand Bansal vs. State of Haryana and another", decided on 29.01.2019 held as under:-
"Prayer in this petition is for quashing of FIR No.64 dated 15.02.2017 filed under Section 174-A of the Indian Penal Code registered at Police Station Sector-5, Panchkula and all other subsequent proceedings arising thereof as well as order dated 24.10.2016 passed by the trial Court vide which a direction was issued to register the aforesaid FIR.
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Learned counsel for the petitioner has relied upon the decisions rendered by this Court in "Vikas Sharma vs. Gurpreet Singh Kohli and another (supra), 2017, (3) L.A.R.584, Microqual Techno Limited and others Vs. State of Haryana and another, 2015 (32) RCR (Crl.)790 and "Rajneesh Khanna Vs. State of Haryana and another" 2017(3) L.A.R. 555 wherein in an identical circumstance, this Court has held that since the main petition filed under Section 138 of the Act stands withdrawn in view of an amicable settlement between the parties, therefore, continuation of proceedings under Section 174A of IPC shall be nothing but an abuse of the process of law. xxx xxx xxx
In view of the same, I find merit in the present petition and accordingly, present petition is allowed and the impugned order dated 24.10.2016 passed by Judicial Magistrate, 1st Class, Panchkula as well as FIR No.64 dated 15.02.2017 registered under Section 174-A of the Indian Penal Code at Police Station Sector-5, Panchkula and all other subsequent proceedings arising thereof, are hereby quashed."
The complaint under Section 138 and 142 N.I. Act wherein order dated 10.02.2020 declaring the petitioners proclaimed persons was passed, has ended in acquittal. There is no case for which petitioners presence is required. The very basis of the order declaring the petitioners proclaimed persons no longer survives and the proceeding under Section 82 Cr.P.C. must be closed in the wake of acquittal of the petitioners.
A Coordinate Bench of this Court in Pardeep Kumar Vs. State of Punjab and Another, CRM-M-41656-2023 date of decision 23.08.2023 has observed that cognizance of the offence under Section 174-A IPC cannot be taken by any Court, except on the complaint in writing of the public servant/Judge concerned or some other public servant/Judge to whom he is administratively subordinate. In the present case, FIR under Section 174-A IPC was registered against the petitioners on 01.10.2021 on copy of the order of learned trial Magistrate forwarded to SHO concerned. After declaring the petitioners proclaimed persons, if at all, learned Magistrate desired prosecution of the petitioners under Section 174-A IPC, the prescribed course was to institute a complaint in writing, in the competent jurisdictional Court. This course was not adopted and mandate of Section 195 of the Code of Criminal Procedure was breached. The impugned FIR under Section 174-A IPC is liable to be quashed, on this ground too.
Prosecution of the petitioners under Section 174-A IPC is also to be terminated for the reasons above. It is a fit case to exercise inherent powers of the Court to quash impugned order dated 10.02.2020 and consequent FIR under Section 174-A IPC to meet the ends of justice.
Accordingly, the petition is allowed. Impugned order of learned Judicial Magistrate 1st Class, Karnal dated 10.02.2020 declaring the petitioners “proclaimed persons” in complaint No. NACT-6696-2018, titled “Cholamandlam Investment & Finance Ltd. Vs. Arya Construction Company and Another”, subsequent FIR No.0582 dated 01.10.2021 under Section 174-A Indian Penal Code, Police Station Karnal Civil Lines, District Karnal, Haryana and all consequential proceedings arising therefrom are ordered to be quashed qua the petitioners.
Pending miscellaneous applications, if any, stand disposed of.