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Judgment
YASHVIR SINGH RATHOR, J. (Oral)
Present petition has been instituted under Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 482 of Code of Criminal Procedure, 1973) for quashing order dated 05.12.2024 (Annexure P-5) passed by learned Judicial Magistrate First Class, Chandigarh in complaint case bearing NACT-3880 of 2022 titled 'Kotak Mahindra Bank Ltd. v. Gurlal Singh' under Section 138 of Negotiable Instruments Act, 1881, whereby the petitioner has been declared as a Proclaimed Person.
Notice of motion.
Mr. Prateek Rathee, Addl. PP, U.T. Chandigarh, accepts notice on behalf of the respondent No.1-U.T. Chandigarh. Both the parties have been heard and material on file has been perused.
After hearing learned counsel for the petitioner and perusing the record, this Court is of the view that dispute raised through the present petition can be decided in limine and without calling the other side here because the way this Court intends to dispose of the present petition, no prejudice would be suffered by the respondent bank qua its rights.
Learned counsel for the petitioner has annexed various orders passed by the learned trial court and the relevant orders are reproduced as under:
Proclamation Notice dated 22.03.2024 (Annexure P-3)
"WHEREAS, complaint has been made before me that Gurlal Singh S/o Kirtan Singh R/o H. 86, Village Bajakhana, Teh. and Distt. Faridkot has committed (or is suspected to have committed) the offence punishable under section 138 Negotiable Instruments Act... Proclamation is hereby made that the said Gurlal Singh is required to appear at District and Session Court, Sangrur before the Additional District and Session Judge to answer the said complaint on the day of 03.10.2024."
Report of Serving Official ASI Ravi Kumar dated 28.05.2024 (Annexure P-4)
"It is requested that copy of proclamation has been affixed on the door of house of the accused, one copy has been affixed on the local bus stand and the third copy was affixed on the notice board of the Court and the fourth one has been returned to the court after reporting."
Impugned Order dated 05.12.2024 (Annexure P-5)
"Present: Ld. Counsel for complainant. Statement of serving official already recorded on 28.05.2024. Period of 30 days has been elapsed. Case called several times since morning, but none has appeared on behalf of accused. Court is satisfied that accused is willfully concealing himself and therefore accused namely Gurlal Singh is declared proclaimed person. Intimation be sent to the SHO concerned through the Naib Court for making entry in his register... In view of his statement file be consigned to Record Room with the liberty to complainant to revive the present complaint as and when accused is arrested or surrendered."
After perusing the record and various orders passed by the Trial Court, I am of the considered opinion that mandatory statutory provisions have not been followed while initiating and declaring the petitioner a proclaimed person and the impugned order is liable to be set aside for the following reasons:
A perusal of record shows that the petitioner was summoned to face the trial for the offence under Section 138 of NI Act vide order dated 24.08.2022. In the order dated 02.03.2023, it has been observed that counsel for complainant has placed on file the receipt of the registered letter sent to the petitioner and since period of 30 days has expired, the accused has not appeared and the trial Court ordered that he be summoned through bailable warrants. On the adjourned date, bailable warrant was received back unexecuted and Court observed that accused is evading the service of warrants and issued non-bailable warrant against the petitioner for 31.10.2022, on which date, non-bailable warrant was received back unexecuted and trial Court observed that accused is intentionally evading his appearance and initiated the proceedings under Section 82 Cr.P.C. and ordered issuance of proclamation for 18.03.2024. On that date, proclamation was not issued and case was adjourned to 03.10.2024 and thereafter to 05.12.2024. On 05.12.2024, the petitioner was declared a proclaimed person. However, no proclamation had been issued for 05.12.2024. The proclamation had infact been issued for 03.10.2024 and affixation was done on 28.05.2024, as per statement of serving constable (Annexure P-4).
In this manner, there are glaring violations regarding compliance of the mandatory requirements under Section 82 Cr.P.C./84 of BNSS). Neither sincere efforts were made to secure the presence of petitioner as his bailable warrants and non-bailable warrants had been received back unexecuted and the orders are silent as to why the same could not be served. Reports are also silent whether the petitioner was residing at the given address or not and the court of its own without recording cogent reasons came to the conclusion that accused is evading the process and has absconded and his presence cannot be secured in ordinary manner. Thereafter, the proclamation has been issued for 03.10.2024 but on that date, the Presiding Officer was on leave and the file was put up before some other Magistrate and case was adjourned to 05.12.2024,on which date, petitioner was declared a proclaimed person. However, no proclamation had been issued for 05.12.2024 and in case, no order has been passed declaring petitioner proclaimed person on 03.10.2024, fresh proclamation should have been issued against the petitioner and since no proclamation had been issued for 05.12.2024, he had no knowledge that he was required to appear before the Trial Magistrate on the date fixed and grave illegality thus has been committed while declaring the petitioner a proclaimed person. In holding so, I have relied upon the decision of a Co-ordinate Bench of this Court in CRM-M-47603-2025 titled Ajay Kumar v. State of UT Chandigarh (decided vide judgment dated 04.09.2025) and CRM-M-69370-2025 titled Narender Kumar v. State of Haryana (decided vide judgment dated 09.12.2025) in which it has been held that failure to provide 30 clear days between publication and the date fixed for appearance is a fatal jurisdictional infirmity that vitiates the proclamation proceedings.
The matter does not rest here. The mandatory requirement of public reading under Section 82(2)(i)(a) Cr.P.C./Section 84(2)(a) BNSS was completely ignored. The report of serving official ASI Ravi Kumar dated 28.05.2024 (Annexure P-4) confirms that copies were merely pasted on the house door, bus stand, and court notice board, without publicly reading out the proclamation in any conspicuous place of the village/town where the accused resided. A Coordinate Bench of this Court in 2022(1) Law Herald 219 titled Rahul Dureja and another v. State of Punjab has held that public reading of the proclamation in a conspicuous place of the town/village is mandatory, and its omission renders the proclamation notice and all subsequent proceedings a complete nullity. The same principle has been consistently followed in 2021(1) RCR (Criminal) 493 (Harvinder Singh v. State of Haryana), 2024(1) Law Herald 859 (Mahender Kumar v. HDFC Ltd.), 2024(1) Law Herald 291 (Ramandeep Singh Sangha v. State of Punjab) and 2024(2) RCR (Criminal) 5 (Sukhjinder Singh v. State of Punjab).
As a result of the aforesaid discussion, the present petition is accepted and the impugned order dated 05.12.2024 (Annexure P-5) passed by learned Chief Judicial Magistrate, Chandigarh, declaring the petitioner a proclaimed person, is set aside. However, the petitioner shall surrender before the learned Trial Court within a period of 30 days from today and the learned Trial Court shall admit him to bail and proceed with the trial in accordance with law.
Pending miscellaneous application(s), if any, shall also stand disposed of.