122 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 05.02.2025 Gurkirtan Singh alias Booby ....Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Neeraj Jain, Advocate for the petitioner.

Mr. Subhash Godara, Addl.A.G., Punjab.

HARPREET SINGH BRAR, J. (ORAL)

1. The present petition has been filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 for quashing of order dated 08.05.2024 passed by the learned Chief Judicial Magistrate, Faridkot (wrongly mentioned as Additional District and Sessions Judge, Faridkot) (Annexure P-2) vide which the petitioner was declared as proclaimed absconder in case bearing FIR No.271 dated 15.12.2020 under Sections 457/380 of IPC (Sections 201/411/34 of IPC added later on) registered at Police Station City Kotkapura, District Faridkot (Annexure P-1).

2. Learned counsel appearing for the petitioner inter alia contends that the challan in the FIR (supra) was presented before the learned trial Court on 28.10.2021 and due to some miscommunication between the petitioner and his counsel, the petitioner could not appear before the learned trial Court. Thereafter, when the petitioner engaged a new lawyer to get instructions of the case, he came to know that vide order dated 08.05.2024 (Annexure P-2), he has been declared as proclaimed absconder by the learned trial Court. Aggrieved by the said impugned order dated 08.05.2024 (Annexure P-2), the petitioner has approached this Court by way of instant petition.

3. Learned counsel appearing for the petitioner submits that the petitioner has never received any summons/warrants issued to him and, therefore, the finding of the trial Court that the petitioner is intentionally evading his arrest, is erroneous. Ultimately, vide impugned order dated 08.05.2024 (Annexure P-2), the petitioner has been declared as proclaimed absconder. 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 the respondent-State 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 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.

10. 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