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Judgment
YASHVIR SINGH RATHOR. J.(Oral)
Present petition has been instituted under Section 528 of BNSS, 2023 for quashing the impugned order dated 03.01.2023 (Annexure P-8), whereby the petitioner has been declared a proclaimed person by learned Judicial Magistrate First Class, Patiala in complaint No.COMA-2061-2020 titled “Rattan Anmol Vs. Karan Kumar” filed under Section 138 of the Negotiable Instruments Act, 1881 and directions have been issued for initiation of proceedings under Section 174-A IPC.
Notice of motion. Mr. Jasjit Singh Rattu, DAG Punjab accepts notice on behalf of the respondent-State. Both the parties have been heard and material on file has been perused.
A perusal of the record shows that after the petitioner was summoned to face the trial under Section 138 of the Negotiable Instruments Act, 1881 but the summons could not be served upon the petitioner-accused, as the address furnished by the complainant was not correct and despite numerous opportunities, the complainant failed to furnish his correct address. Thereafter, notice was ordered to be issued to him through publication in a newspaper namely Azad Soch for 17.10.2022 but the publication was again effected at the same address where petitioner was not residing and the same thus would not have served any purpose. Vide order dated 17.10.2022, when the publication in the newspaper was effected, it was ordered that proclamation under Section 82 Cr.P.C be issued for 07.12.2022. However, no satisfaction has been recorded by the Magistrate to the effect that the accused has either absconded or has concealed himself to avoid the process issued by the Court and his presence cannot be secured in the ordinary manner and recording of such a satisfaction was sine qua non for initiating the proceedings under Section 82 Cr.P.C. A grave procedural error thus has been committed by the learned Magistrate while initiating the proceedings under Section 82 Cr.P.C.
The matter does not rest here, the proclamation was issued for
07.12.2022 vide order dated 17.10.2022, following order was passed:-
Publication of accused received back duly executed on 14.09.2022. Period of 30 days has already been elapsed but the accused did not come present. Still in the interest of justice service of accused be also effected through proclamation U/s 82 Cr.P.C. for 07.12.2022. The serving constable is directed to get the service of accused through proclamation effected within time.
On the adjourned date, proclamation was received back duly effected and statement of serving Constable was recorded, according to which the proclamation had been effected by him on 02.12.2022. The trial Magistrate observed that period of 30 days has not lapsed and adjourned the case to 03.01.2023 for awaiting presence of accused, by passing the following order:-
Proclamation of accused received back duly effected. Statement of serving constable recorded that he has effected the proclamation on 02.12.2022. Period of 30 days not elapsed yet. Now for awaiting presence of accused, hearing of the present case is adjourned to 03.01.2023.
On 03.01.2023, petitioner was declared a proclaimed person. However, no proclamation had been issued against the petitioner for 03.01.2023, which could enable him to know about the date fixed for his appearance and once the proclamation issued for 07.12.2022 had not been effected 30 days prior to the date fixed for his appearance, the trial Magistrate should have issued fresh proclamation giving a minimum of 30 days to the accused to appear in the Court 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.
There is yet another procedural infirmity in the proclamation proceedings. A perusal of the execution report of the proclamation dated 02.12.2022 (Annexure P-6A) shows that the serving official has reported that one copy of the proclamation was affixed at the door of the house of the accused, another copy was affixed at a conspicuous public place visited by the general public and one copy was affixed on the notice board of the Court. However, the execution report does not disclose that the proclamation was publicly read at some conspicuous place of the town or village, as mandatorily required under Section 82(2)(i)(a) Cr.P.C. 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). Thus, the execution report placed on record does not establish compliance with the mandatory requirements of Section 82(2)(i)(a) Cr.P.C.
As a result of the afore-said discussion, the present petition is accepted and the impugned order dated 03.01.2023 (Annexure P-8), vide which, the petitioner was declared 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.