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Judgment
VIKRAM AGGARWAL, J (ORAL)
The present petition has been instituted under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’) assailing the order dated 03.07.2025 (Annexure P-19) passed by the Court of Sub-Divisional Judicial Magistrate, Samana in complaint case bearing NO.NACT/384/2022 titled as Darshan Singh v. Paramjeet Singh instituted under Section 138 of the Negotiable Instruments Act, 1881 (for short the “NI Act”) whereby the petitioner was declared a proclaimed person. The petitioner also seeks setting aside of all subsequent proceedings, including order dated 06.09.2025 (Annexure P-22) directing attachment of the properties of the petitioner and order dated 29.09.2025 (Annexure P-23), directing sale of the attached properties.
The facts, as emanating from the petition, are that a complaint titled as Darshan Singh v. Paramjeet Singh (Annexure P-1) was instituted under Section 138 of the NI Act qua a cheque amounting to Rs.4.1 lakhs. Summoning order was passed on 06.06.2022 (Annexure P-2). Thereafter, The matter remained pending for service of the accused (petitioner).
It is the case of the petitioner that the correct address was not filed and bailable warrants were also received back unserved. It has been averred that even the report on the bailable warrants states that the petitioner had gone abroad. It is the case of the petitioner that without effecting valid and proper service, non-bailable warrants were ordered to be issued vide order dated 02.08.2024 (Annexure P-13). Thereafter, non-bailable warrants were issued again and eventually proclamation under Section 82 Cr.P.C was issued against the petitioner at his local address vide order dated 19.02.2025 (Annexure P-15).
It is the case of the petitioner that the petitioner and his family had shifted from Village Kularan to Bhinder Colony, Tehsil Samana, District Patiala in December 2020 and thereafter, the petitioner left for Canada on 20.02.2023 on a visitor visa and has been residing there since then. The passport has been annexed as Annexure P-17. It has been averred that eventually the petitioner was declared a proclaimed person vide order dated 03.07.2025 and his properties were also attached. It is the case of the petitioner that the said proceedings are invalid and are liable to be quashed.
Learned counsel has referred to the orders passed from time to time and has submitted that the impugned orders are not sustainable in law. He further submits that the petitioner is willing to appear before the Court concerned but apprehends that the moment he appears, he shall be arrested.
Notice of motion.
Mr. Ravinder Singh, DAG, Punjab accepts notice on behalf of the respondent-State.
The petitioner is an accused in a complaint filed under Section 138 of the NI Act. A perusal of the interlocutory orders shows that summons issued were being received back unserved for want of correct address. It was reported by the Process Server that on 24.04.2024 (Annexure P-9), the Chowkidar of the village had stated that the petitioner had gone abroad.
Despite the same, vide order dated 30.04.2024, bailable warrants were issued at the local address.
A report was again received on 29.07.2024 that the petitioner had gone aboard. The Court then issued non-bailable warrants vide order dated 02.08.2024 (Annexure P-13).
Since the non-bailable warrants were also received back unexecuted, vide order dated 19.02.2025 (Annexure P-15), proceedings under Section 82 Cr.P.C were initiated. The order dated 19.02.2025 reads as under:-
“Non bailable warrants of accused received back unexecuted. This Court is satisfied that accused is aware about the pendency of these proceedings against him and he is intentionally avoiding service and his presence cannot be produced in this manner. Let accused be summoned through proclamation under Section 82 Cr.P.C for 01.04.2025.”
The proclamation was also issued at the local address and eventually by way of the impugned order, the petitioner was declared a proclaimed person and his properties were attached.
Before proceeding to examine the legality of the impugned orders, it would be apposite to refer to the statutory provisions and the law on the subject.
Section 82 Cr.P.C lays down as under:-
“82.Proclamation for person absconding.
(1)If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(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 person 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-house;
(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.
(3)A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this Section have been complied with, and that the proclamation was published on such day.
(4)[Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459, or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.(5)The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).] [Inserted by Act 25 of 2005, Section 12 (w.e.f. 23-6-2006).]”
In the case of Sonu v. State of Haryana, 2021 (1) RCR (Crl.) 319, a coordinate Bench of this Court, while examining Section 82 Cr.P.C, summarised the essential requirements for issuance and publication of proclamation against an absconder and declaring him a proclaimed person/ offender;
"9 The essential requirements of section 82 of the Cr.P.C., 1973 for issuance and publication of proclamation against an absconder and declaring him as proclaimed person/offender may be summarized as under:-
(i)Prior issuance of warrant of arrest by the Court is sine qua non for issuance and publication of the proclamation and the Court has to first issue warrant of arrest against the person concerned. (See Rohit Kumar v. State of Delhi: 2008 Crl. J. 2561).
(ii)There must be a report before the Court that the person against whom warrant was issued had absconded or had been concealing himself so that the warrant of arrest could not be executed against him. However, the Court is not bound to take evidence in this regard before issuing a Proclamation under section 82(1) of the Cr.P.C., 1973. (See Rohit Kumar v. State of Delhi: 2008 Crl. J 2561).
(iii)The Court cannot issue the Proclamation as a matter of course because the Police is asking for it. The Court must be prima facie satisfied that the person has absconded or is concealing himself so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence. (See Bishundayal Mahton and others v. Emperor: AIR 1943 Patna 366 and Devender Singh Negi v. State of U.P.: 1994 Crl LJ (Allahabad HC) 1783).
(iv)The requisite date and place for appearance must be specified in the proclamation requiring such person to appear on such date at the specified place. Such date must not be less than 30 clear days from the date of issuance and publication of the proclamation. (See Gurappa Gugal and others v. State of Mysore 1969 CriLJ 826 and Shokat Ali v. State of Haryna: 2020 (2) RCR (Criminal) 339).
(v)Where the period between issuance and publication of the proclamation and the specified date of hearing is less than thirty days, the accused cannot be declared a proclaimed person/offender and the proclamation has to be issued and published again. (See Dilbagh Singh v. State of Punjab (P&H): 2015 (8) RCR (Criminal) 166 and Ashok Kumar v. State of Haryana and another: 2013 (4) RCR (Criminal) 550)
(vi)The Proclamation has to be published in the manner laid down in section 82(2) of the Cr.P.C., 1973. For publication the proclamation has to be first publicly read in some conspicuous place of the town or village in which the accused ordinarily resides; then the same has to be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides or to some conspicuous place of such town or village and thereafter a copy of the proclamation has to be affixed to some conspicuous part of the Court-house. The three sub-clauses (a)- (c) in section 82 (2(i) of the Cr.P.C., 1973 are conjunctive and not disjunctive, which means that there would be no valid publication of the proclamation unless all the three modes of publication are proved. (See Pawan Kumar Gupta v. The State of W.B.: 1973 CriLJ 1368). Where the Court so orders a copy of the proclamation has to be additionally published in a daily newspaper circulating in the place in which the accused ordinarily resides. Advisably, proclamation has to be issued with four copies so that one each of the three copies of the proclamation may be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides, to some conspicuous place of such town or village and to some conspicuous part of the Courthouse and report regarding publication may be made on the fourth copy of the proclamation. Additional copy will be required where the proclamation is also required to be published in the newspaper.
(vii)Statement of the serving officer has to be recorded by the Court as to the date and mode of publication of the proclamation. (See Birad Dan v. State: 1958 CriLJ 965).
(viii)The Court issuing the proclamation has to make a statement in writing in its order that the proclamation was duly published on a specified day in a manner specified in section 82(2)(i) of the Cr.P.C, 1973. Such statement in writing by the Court is declared to be conclusive evidence that the requirements of Section 82 have been complied with and that the proclamation was published on such day. (See Birad Dan v. State: 1958 CriLJ 965).
(xi)The conditions specified in section 82(2) of the Cr.P.C., 1973 for the publication of a Proclamation against an absconder are mandatory. Any noncompliance therewith cannot be cured as an irregularity' and renders the Proclamation and proceedings subsequent thereto a nullity. (See Devendra Singh Negi alias Debu v. State of U.P. and another: 1994 CriLJ 1783 and Pal Singh v. The State: 1955 CriLJ 318)."
Clearly, while summarising the requirements, the coordinate Bench referred to almost the entire law on the subject. Still further, there can be no gainsaying the fact that the provisions of Section 82 Cr.P.C are required to be complied with scrupulously.
It, therefore, emerges that prior to the issuance of a proclamation under Section 82 Cr.P.C, the Court concerned would be required to record its satisfaction that the accused, against whom such a proclamation was sought to be issued was absconding or was concealing himself/herself with an intention to evade arrest. This satisfaction is required to be recorded by a Court initiating proceedings under Section 82 Cr.P.C on account of the grave civil and criminal ramifications that the provision has qua the rights of an accused.
Reverting to the facts of the case in hand, if the impugned order declaring the petitioner a proclaimed person is tested on the touchstone of the principles summarised by the coordinate Bench, coupled with the requirements of the Statute, this Court finds the order to be unsustainable. Once, information had been received that the petitioner had gone abroad, the trial Court should have adopted the procedure as regards a person residing abroad rather than repeatedly issuing summons and warrants at the local address. One can understand that the address of Canada may not have been available. Under the circumstances, the trial Court was required to record its satisfaction in terms of the provisions of Section 82 Cr.P.C. The order dated 19.02.2025 shows that no such satisfaction was recorded.
In view of the above, the order the order dated 03.07.2025 (Annexure P-19) is found to be unsustainable and is set aside. The subsequent orders dated 06.09.2025 (Annexure P-22) and 29.09.2025 (Annexure P-23) are also, therefore, set aside, they being a consequence of the order dated 03.07.2025.
If the petitioner surrenders before the trial Court within a period of 30 days from today and moves an application for bail, the same be decided expeditiously, in accordance with law. However, in case, the petitioner does not appear, which may be an eventuality since the petitioner is settled abroad and may be interested in only getting the order declaring him a proclaimed person set aside, the present petition shall be deemed to have been dismissed. The Court is impelled to pass this order because now the petitioner has the knowledge of the proceedings and has given an undertaking to surrender before the trial Court. No one should be permitted to misuse the process of law by assailing an order on technical grounds and then taking undue advantage of the said order having been set aside, which will tantamount to frustrating the proceedings before the trial Court. A court is expected to balance the equities and in order to achieve that, this Court deems it appropriate to pass the instant order.
The petition is accordingly disposed of in the above terms.