2021 (6) TMI 963 - HC - Indian Laws

Dishonor of Cheque - publication of proclamation against person absconding - proclaimed person/offender or not - Section 82 of the Cr.P.C. - HELD THAT - In the present case vide order dated 06.10.2017 proclamation under Section 82 of the Cr.P.C. was ordered to be published against the petitioner requiring the petitioner to appear before the Court on 14.11.2017. The proclamation was published on 06.11.2017. The petitioner was not given statutory minimum period of thirty days from 06.11.2017 (the date on which the proclamation issued in terms of order dated 06.10.2017 was published) till 14.11.2017 (the date fixed for his appearance before the Court). Learned Judicial Magistrate First Class, Gurugram vide order dated 14.11.2017 adjourned the case firstly to 19.12.2017 and then to 10.01.2018 for awaiting the appearance of the petitioner on the ground that statutory period of thirty days had not elapsed and vide order dated 10.01.2018 declared the petitioner to be proclaimed person. Learned Judicial Magistrate First Class, Gurugram could not extend the time to complete the period of thirty days by simply adjourning the case on 14.11.2017 to 19.12.2017 and then to 10.01.2018 for awaiting appearance of the petitioner and was mandatorily required to issue the proclamation again for publication thereof in accordance with the provisions of Section 82(2) of the Cr.P.C. by giving thirty days time to the petitioner from the date of publication of the proclamation till the date fixed for his appearance before the Court. The petition is allowed.

Summary

Issues:
Petitioner seeks quashing of order declaring him proclaimed person under Section 82 of Cr.P.C. and subsequent proceedings.

Analysis:
The petitioner filed a petition under Section 482 of the Cr.P.C. seeking to quash the order dated 10.01.2018 passed by the Judicial Magistrate First Class, Gurugram. The petitioner was declared a proclaimed person under Section 82 of the Cr.P.C. in a complaint case related to the Negotiable Instruments Act, 1881. The petitioner challenged the legality of the order, claiming he was not given the required 30 days for appearance before the Court from the date of publication of the proclamation. The State Counsel argued that the petitioner absconded and the order was valid. After considering the submissions and perusal of the record, the Court found the impugned order suffered from material illegality and needed to be quashed.

The Court analyzed the provisions of Section 82 of the Cr.P.C. regarding the publication of proclamation against absconding persons. It highlighted the mandatory requirements for issuing and publishing a proclamation, emphasizing the need for prior issuance of a warrant of arrest, a report on the absconding individual, and specific details in the proclamation for appearance. The Court cited previous judgments to illustrate the importance of complying with the procedural aspects of issuing proclamations, including the necessity of a 30-day clear notice for the accused to appear.

Referring to similar cases, the Court pointed out instances where proclamations were declared invalid due to non-compliance with the statutory requirements. In the present case, the Court noted that the petitioner was not given the mandatory 30-day period from the date of publication of the proclamation till the fixed appearance date. The Judicial Magistrate failed to follow the prescribed procedure by simply adjourning the case, instead of re-issuing the proclamation with the required notice period. Consequently, the Court concluded that the petitioner was wrongly declared a proclaimed person, and the impugned order was deemed illegal and quashed.

In the final decision, the Court allowed the petition, quashing the order dated 10.01.2018 and all consequential proceedings. However, the petitioner was directed to surrender before the Judicial Magistrate within four weeks, subject to further orders regarding bail.