IMPORTANT POINT
The court established that the procedural safeguards under Sections 82 and 83 of the Cr.P.C. must be strictly followed to protect the personal liberty of individuals before declaring them as proclaimed offenders.

ORDER :

ARUN MONGA, J.

1. Quashing of an order dated 11.06.2024 passed by the learned Additional Sessions Judge No.1, Udaipur, is sought herein. Vide impugned order, a non-bailable warrant was issued against the petitioner. Subsequently, due to petitioner’s non-availability, another order dated 23.02.2024 was passed by the learned Special Judicial Magistrate (N.I. Act Cases) No.6, Udaipur, to initiate proceedings under Sections 82 & 83 of Cr.P.C., which is also assailed herein.

2. Briefly speaking relevant facts leading to filing of instant petition are that Respondent No.2 (complainant) filed a complaint u/s 138 of N.I. Act against the petitioner for dishonor of a cheque issued to him for an amount of Rs.12,50,000/-. On the basis of the aforesaid complaint, the learned trial court took cognizance and issued summons to the petitioner.

2.1 Thereafter, charges were framed and on 13/09/23, the complainant's evidence was concluded. The matter was then scheduled for recording the petitioner/accused’s statement. However, on 08/11/23, the petitioner's counsel filed an application seeking exemption of personal presence of petitioner. He sought adjournment due to the petitioner's absence, citing unavoidable circumstances. However, the learned trial court summarily dismissed the application, issued an arrest warrant against the petitioner, and forfeited his bail bonds vide an order dated 08/11/23.

2.2. The warrant was received unserved in the court. Consequently, on 23/02/24, the learned trial court declared the accused/petitioner a proclaimed offender and initiated proceedings under Sections 82 and 83 of the Criminal Procedure Code. A standing arrest warrant was issued to arrest the petitioner.

2.3. Aggrieved by the trial court's order, the petitioner filed a Revision Petition before the Additional Sessions Judge. The Revision petition was also dismissed on 11/06/24. Hence the instant petition.

3. In the aforesaid backdrop, I have heard learned counsel for the petitioner and the learned Public Prosecutor.

3.1 Counsel for the petitioner argues on the same lines as the grounds taken in the petition urging that the petitioner through out attended the court regularly. His application seeking exemption from personal presence was dismissed abruptly on 08/11/23 resulting in an arrest warrant. The trial court erred in rejecting the exemption application, disregarding that it was only the third hearing for recording the petitioner's statement, with previous two adjournments due to unavoidable circumstances.

3.2. He would argue that the trial court failed to follow proper procedure before declaring the petitioner absconder. Neither calling for reports nor recording statements was carried out, as required by law.

3.3. The court erred in dismissing the exemption application and issuing an arrest warrant, when it could have granted an adjournment with compensatory costs or instead issued a bailable warrant, given the bailable nature of the offense.

3.4. The court failed to consider the irreparable loss and injury to the petitioner that would be caused to him in the event he is arrested and tried under Sections 82/83 of the Cr.P.C.

4. Learned PP would support the impugned orders passed by both the learned courts below for the reasons stated therein.

5. Having heard the learned counsel for the petitioner and after perusing the impugned order, I am of the view that the learned Court below not only took an overpedantic view of enforcement of provisions under Sections 82 & 83 of Cr.P.C., but also fell in grave error in not appreciating extenuating factors of the petitioner, due to which, he was unable to appear on the fateful day.

6. His non-appearance was clearly not intentional and the learned Court below ought to have looked into the same before summarily rejecting the stand taken in the application seeking exemption from personal presence. Instead, it straightway chose to issue non-bailable warrants followed by proceedings under Section 82 & 83 of Cr.P.C.

7. Liber