The main legal point established is the necessity for the trial court to strictly adhere to the prescribed procedures and guidelines for issuance of Non-Bailable Warrant and proclamation under section 82 of Cr.P.C., and the importance of recording reasons for such orders.

JUDGMENT :

1. Heard Sri Ashok Kumar Mishra, learned counsel for the applicant, Sri Atrey Tripathi, learned A.G.A. for the State.

2. By means of the present application, prayer has been made for setting aside the orders of Non-Bailable Warrant dated 31-1-2023, 20-2-2023, 28-3-2023, 28-4-2023 and the joint order of NBW/82 Cr.P.C., dated 4-7-2023 passed by Presiding Officer, Additional court room no. 5, Lucknow against the petitioner, in complaint case no. 2479 of 2019 (Mohd. Nasir Vs. Moqbool Hasan), U/S 138 N.I. Act, P.S. Aliganj District-Lucknow.

3. Notice to opposite party no. 2 is hereby dispensed with, as the matter being decided, at the admission stage.

4. Learned counsel appearing for the applicant submits that on 15.10.2018, a cheque is said to be issued by the present applicant in favour of the complainant, amounting Rs.5,00,000/- and thereafter, the same is said to be bounced and the notice was issued to the applicant, on 01.02.2019, by the opposite party no. 2, through his attorney but the same was never served upon the applicant.

5. He submits that on 23.03.2019, the complainant filed a case under section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the Act, 1881), before the Chief Judicial Magistrate, Custom, Lucknow and thereafter the several dates were, fixed wherein, on 31.01.2023, due to unavoidable circumstances, the present applicant could not appear before the trial court, which has been explained in paragraph 19 of this application and for non-appearance, for a day, before the trial court, the non-bailable warrant was issued. He submits that after the order dated 31.01.2023, the other dates were fixed i.e. on 20.02.2023, 28.03.2023 and, ultimately, on 28.04.2023 and the order of non-bailable warrant as well as proclamation under section 82 was also issued against the applicant and the applicant is aggrieved with both the orders, passed by the trial court as the same is without adhering to the mandate of provision of section 82 of Cr.P.C.

6. Contention of learned counsel for the applicant is that a complaint was instituted and thereafter, when the summons were issued, the applicant kept on appearing on each and every date before the trial court, prior to 31.01.2023 and there was no deliberate deviation in appearance before the same. He submits that the manner in which the order of non-bailable warrant was passed, is totally against the procedure prescribed under the law.

7. Adding his arguments, he has drawn attention towards the procedure prescribed for issuance of proclamation under section 82 of Cr.P.C. Section 82 of Cr.P.C. are read 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 publis