139 IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH Date of Decision: 01.07.2025 VARINDER @ VARINDER KUMAR @ BALI …Petitioner V/S STATE OF PUNJAB …Respondent CORAM: HON’BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Sandeep Kumar Yadav, Advocate and Ms. Deepika, Advocate for the petitioner.

Mr. Subhash Godara, Addl. AG Punjab.

****

HARPREET SINGH BRAR J. (Oral)

1. The present petition has been filed under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 seeking quashing of the order dated 22.01.2025 (Annexure P-4) passed by learned Additional Sessions Judge-I, Kapurthala vide which the petitioner has been declared as proclaimed person in case bearing FIR No. 219 dated 30.08.2018 registered under Section 302 of Indian Penal Code (Sections 341, 201 and 120-B of IPC added later on) at Police Station City Kapurthala, District Kapurthala and all subsequent proceedings arising therefrom.

2. Learned counsel appearing for the petitioner inter alia contends that impugned order has been passed only on the basis of solitary absence of the petitioner as the petitioner could not put in appearance before the learned trial Court on 25.11.2024 and his bail order was cancelled and surety bonds were forfeited by learned Additional Sessions Judge, Kapurthala vide order dated 25.11.2024 (Annexure P-3). Learned counsel further contends that petitioner was declared as proclaimed person vide the impugned order without following the proper procedure and the impugned order is liable to be set aside on the ground that the mandate of Section 82(1) of Cr.P.C. has not been followed in its letter and spirit by the trial Court as the warrants of arrest were never served to the petitioner. 3. Notice of motion.

4. Mr. Subhash Godara, Addl. AG Punjab, who is present in the Court, accepts notice on behalf of official respondent 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.

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 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. In the judgment passed by this Court in Sonu Vs. State of Haryana 2021 (1) RCR (Crl.) 319, it has been held that the conditions specified in Section 82 (2) Cr.P.C. for the publication of a proclamation against an absconder are mandatory. Any non-compliance therewith cannot be cured as an 'irregularity' and renders the proclamation and proceedings subsequent thereto a nullity.

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.

9. In view of the aforesaid facts and circumstances, the present petition is allowed. The impugned order dated 22.01.2025 (Annexure P-4) vide wh