IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-64482-2024 (O&M)

Date of decision: 08.01.2025 Divya Thakur ...Petitioner Versus Babandeep Singh ...Respondent CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Present:- Mr. Jagjot Singh Lalli, Advocate for the petitioner.

MANISHA BATRA, J. (Oral)

1. The instant petition has been filed by the petitioner under Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) for quashing of order dated 13.02.2023 (Annexure P-3), passed by the Judicial Magistrate First Class, Jalandhar in case titled as Babandeep Singh vs. Divya Thkaur, arising out of a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N. I. Act’), whereby the petitioner had been declared a proclaimed person.

2. The present petition has been filed by the petitioner on the grounds and it has been argued by her counsel that the petitioner has been falsely implicated in the aforesaid complaint. The petitioner was never served with any notice/summons/warrants issued by the learned trial Court and she had been declared a proclaimed person without following the proper procedure prescribed under Section 82 Cr.P.C. Hence, it is urged that the impugned order is liable to be set aside.

3. I have heard learned counsel for the petitioner and have also gone through the material placed on record.

4. On giving due deliberations to the contentions as raised by learned counsel for the parties and on an overall perusal of the orders passed by the trial Court from the date of initiating proceedings under Section 82 Cr.P.C. as against the petitioner till the date of declaring her a proclaimed person, I am of the considered opinion that the impugned order dated 13.02.2023 suffers from material illegalities and is liable to be quashed with all the consequential proceedings arising therefrom.

5. After going through the material placed on record as well as the copies of zimni orders passed by the learned trial Court, it is revealed that on 24.11.2022, since the non-bailable warrants issued against the petitioner were received back unserved, the learned trial Court had ordered for issuance of proclamation against her for 16.01.2023. A bare perusal of this order shows that the learned trial Court before ordering for publication of proclamation has not recorded its proper satisfaction that that the petitioner had absconded or was concealing herself so that the warrant of arrest, previously issued, cannot be executed, despite reasonable diligence, which was in violation of the provisions of Section 82(1) of Cr.P.C. Reliance in this regard can be placed upon Rohit Kumar Vs. State of Delhi : 2008 Crl. J. 2561.

6. Further, when the case was taken up on 16.01.2023, the proclamation issued against the petitioner was received back executed on 12.01.2023, requiring the petitioner to cause her appearance on 16.01.2023 before the learned trial Court, which means that he was not granted statutory period of 30 days to cause her appearance before the trial Court. Hence, the same was in clear violation of the provisions of Section 82(1) Cr.P.C., as per which, a specified time of not less than 30 days is required to be given to the accused from the date of publishing such proclamation which is mandatory in nature. Reliance in this regard can be placed upon Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826 and Shokat Ali Vs. State of Haryna : 2020(2) RCR (Criminal) 339.

7. Although, the learned trial Court, by adjourning the case to 13.02.2023, had tried to give mandatory period of 30 days to the petitioner to appear before it, however, while doing so, the learned trial Court failed to consider the fact that it could not have extended the time by simply adjourning the case as a fresh proclamation was required to be published once the period between issuance of publication of proclamation and the specified period of hearing was less than 30 days. Reference in this context can be made to Dilba