The trial Court's failure to record satisfaction before declaring the petitioner a proclaimed person constituted an incurable illegality, violating procedural safeguards under Section 82 of Cr.P.C.

JUDGMENT :

Harpreet Singh Brar, J. (Oral)

1. The present petition has been filed under Section 528 of BNSS, 2023, for quashing of order dated 06.04.2024 passed by learned Sub-Divisional Judicial Magistrate, Phillaur in FIR No.315 dated 10.11.2018 registered under Sections 447, 506, 34 IPC at Police Station Phillaur, District Jalandhar, vide which the petitioner was declared as proclaimed person.

2. Learned counsel for the petitioner submits that the petitioner was on bail and was regularly appearing before the learned trial Court, however, in the month of April, 2023, he went to West Bengal to supply potatoes on his truck where he unfortunately suffered a paralytic attack. He further submits that the petitioner is an old man aged about 75 years and was under continuous medical treatment and he again suffered a brain stroke and paralysis (Right Side Upper Kim and Lower Limb on 29.01.2024 and he remained admitted in the hospital and is under treatment, and due to this reason he could not appear before the learned trial Court on the date fixed and as a result, he was wrongly declared as proclaimed person on 06.04.2024. Aggrieved by the said impugned order dated 06.04.2024, the petitioner has approached this Court by way of instant petition. 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. Lastly, learned counsel for the petitioner submits that the petitioner undertakes to appear before the trial Court on each and every date of hearing.

3. Notice of motion.

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

5. 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.

6. 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.

7. 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 the judgment passed in Major Singh @ Major Vs. State of Punjab 2023 (3) RCR (Criminal) 406; 2023 (2) Law Herald 1506 has held that the Court is first required to record its satisfaction before issuance of process under Section 82 of Cr.P.C. and non-recording of the satisfaction itself makes such order suffering from incurable illegality.

8. The sole purpose of issuance of non-bailable warrants or issuance of proclamation is to secure presence of the accused before the trial Court. The petitioner in the present case has himself come forward and has undertaken to appear before the learned trial Court on each and every date of hearing.

9. In view of the aforesaid facts and circumstances, the present petition is allowed and the impugned order dated 06.04.2024, vide which the petitioner was declared proclaimed person as well as all the consequential proceedings emanating therefrom, are hereby setaside.

10. The petitioner is directed to appear before the learned trial Court within a period of 02 weeks from today and on doing so, he shall be admitted to bail on furnishing bail bond