IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

289-2 CRM-M No.63683 of 2024 (O&M)

Date of decision: 24.02.2025 Parvinder Chand ....Petitioner Versus State of Punjab and another ....Respondents CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Ms. Naseem A. Sheikh, Advocate for the petitioner.

Mr. Rishabh Singla, AAG, Punjab.

Ms. Kudrat Sareen, Advocate for respondent No.2.

HARPREET SINGH BRAR J. (Oral)

1. The present petition has been filed under Section 528 of BNSS, 2023, for quashing of order dated 21.03.2022 (Annexure P-3) passed by learned Addl. Chief Judicial Magistrate, S.B.S. Nagar, in FIR No.50 dated 23.07.2020 registered under Sections 406, 420 IPC and Section 24 of the Immigration Act and Section 13 of the Punjab Travel Professionals Regulation Act, 2014 at Police Station Aur, District S.B.S.

Nagar, vide which the petitioner was declared as proclaimed person.

2. Learned counsel for the petitioner submits that the challan in the FIR (supra) was presented before the learned trial Court and thereafter, to procure the appearance of the petitioner proclamation process has been initiated, however, the petitioner was never served with the summons or warrants issued by the learned trial Court as it was reported by the serving Constable vide his report dated 27.01.2022 that the petitioner could not be found at the given address and he was disowned by his family, and as a result, he was wrongly declared as proclaimed person on 21.03.2022 (Annexure P-3). Aggrieved by the said impugned order dated 21.03.2022 (Annexure P-3), 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. Learned State counsel as well as learned counsel for respondent No.2 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. In view of the aforesaid facts and circumstances, the present petition is allowed and the impugned order dated 21.03.2022 (Annexure P-3), vide which