The issuance of a proclamation under Section 82 Cr.P.C. is invalid without the trial Court's recorded satisfaction regarding the accused's abscondance, making the order illegal.

JUDGMENT :

Harpreet Singh Brar, J.

1. The present petition has been filed under Section 528 read with Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 seeking quashing of order dated 09.01.2023 (Annexure P-1) passed by the learned Judicial Magistrate 1st Class, Batala, District Gurdaspur, in case bearing No. COMI/25/2016 titled as Harpal Singh vs. Saudagar Singh and others vide which the petitioner has been declared as proclaimed person.

2. Learned counsel appearing for the petitioner inter alia contends that the petitioner was summoned vide order dated 26.09.2019 and notice was issued to him on the address given in the complaint but no notice was served upon the petitioner and the petitioner was completely unaware of the proceedings commenced before the learned trial Court which led to non-appearance of the petitioner. It is evident from the orders dated 01.09.2021 to 05.08.2022 that notice issued to the petitioner was never executed as the petitioner is residing abroad since 16.03.2016 and vide order dated 14.10.2022, non-bailable warrants were issued against him. On 21.11.2022, the trial Court issued proclamation under Section 82 of Cr.P.C. against the petitioner and on 09.01.2023 (Annexure P-1), the trial Court declared the petitioner as proclaimed person. Aggrieved by the said impugned order dated 09.01.2023 (Annexure P-1), the petitioner has approached this Court by way of instant petition.

3. Learned counsel appearing for the petitioner submits that the non-bailable warrants issued to the petitioner were never served and, therefore, the finding of the trial Court that the petitioner is intentionally evading his arrest, is erroneous. Further, the trial Court vide order dated 21.11.2022 observed that since non-bailable warrants have not been executed till date, he cannot be served through ordinary process and issued proclamation under Section 82 Cr.P.C. Ultimately, vide impugned order dated 09.01.2023 (Annexure P-1), the petitioner has been declared as proclaimed person. It is contended that the impugned order is liable to be set aside on the ground that the mandate of Section 82 of Cr.P.C. has not been followed in its letter and spirit by the trial Court.

4. It is also submitted that the petitioner undertakes to appear before the trial Court on each and every date.

5. Notice of motion.

6. Mr. Subhash Godara, Addl. A.G. Punjab, who is present in Court, accepts notice for respondent No. 1 and supports the order passed by the learned trial Court by contending that the petitioner did not put in appearance before the trial Court intentionally and deliberately and, therefore, having left with no other option, proclamation was issued to secure his presence.

7. I have heard learned counsel for the parties and perused the record of the case with their able assistance and with the consent of parties, the matter is taken up for final disposal.

8. While the scheme of criminal justice system necessitates curtailment of personal liberty to some extent, it is of the utmost importance that the same is done in line with the procedure established by law to maintain a healthy balance between personal liberty of the individual-accused and interests of the society in promoting law and order. Such procedure must be compatible with Article 21 of the Constitution of India i.e. it must be fair, just and not suffer from the vice of arbitrariness or unreasonableness.

9. A perusal of the impugned order reveals that the trial Court issued proclamation without recording reasons of its belief that the petitioner has absconded or is concealing himself. This Court in