P&H HC Sets Aside Cheque-Bounce Accused’s Proclaimed-Person Declaration After Magistrate Gave Him Less Than 30 Days To Appear

In brief

The question

Whether the order declaring the petitioner a proclaimed person was sustainable when the time allowed for appearance under the proclamation was less than 30 days.

The court held

The High Court set aside the order dated 30 September 2026 declaring the petitioner a proclaimed person.

It also directed

It directed that, if the petitioner surrendered before the trial court within 30 days of the High Court’s decision and applied for bail, the application should be decided expeditiously in accordance with law.

If he did not appear within that period, the petition would be deemed dismissed.

The petition was disposed of on those terms.

01Facts

Respondent No. 2 filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881.

After summons were issued, the trial court ordered bailable warrants on 15 May 2023 and non-bailable warrants on 29 May 2024; the judgment records that the bailable warrants had not been served.

p. 2

On 22 July 2026, the trial court initiated proceedings under Section 82 Cr.P.C. and directed the petitioner to appear on 14 August 2026.

p. 2

The proclamation was reported as effected, and the petitioner was declared a proclaimed person on 30 September 2026.

pp. 2–3

He challenged that order, arguing that the statutory minimum period for appearance had not been provided, and stated that he was willing to surrender but apprehended being taken into custody.

p. 3

02Issues

i.Whether the order declaring the petitioner a proclaimed person was sustainable when the time allowed for appearance under the proclamation was less than 30 days.

p. 3, 8

ii.Whether the petitioner should be afforded an opportunity to surrender and seek bail after the impugned order was set aside.

p. 9

03Law Applied

Section 82(1) Cr.P.C. requires a proclamation to specify a place and time for appearance not less than 30 days from publication; the court must have reason to believe that the person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed.

pp. 4–5, 8

In Sonu v. State of Haryana, 2021(1) RCR (Criminal) 319, the court summarised the requirements for a valid proclamation, including prior issuance of a warrant, judicial satisfaction that the person is absconding or concealing himself, and a minimum 30-day period for appearance; it also recognised that non-compliance with mandatory Section 82 requirements invalidates the proclamation and subsequent proceedings.

pp. 5–7

The court also relied on Ashok Kumar v. State of Haryana and another, 2013(4) RCR (Criminal) 550, concerning the invalidity of a proclamation where less than 30 days was given.

p. 8

Provisions in the judgment · 22 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528

Negotiable Instruments Act, 1881 Section 138

Code of Criminal Procedure, 1973 Section 82

Indian Penal Code, 1860 19 provisions

Section 302 Section 304 Section 364 Section 367 Section 382 Section 392 Section 393 Section 394 Section 395 Section 396 Section 397 Section 398 Section 399 Section 400 Section 402 Section 436 Section 449 Section 459 Section 460

04Reasoning

The trial court’s order of 22 July 2026 required the petitioner to appear on 14 August 2026, a period of less than 30 days.

p. 8

The High Court held that this directly contravened Section 82 Cr.P.C. and the settled requirement that the specified appearance date be at least 30 days after publication.

p. 8

It also noted that the trial court had adjourned the matter to await the petitioner’s presence after the proclamation was reported as effected, contrary to the settled position referred to in Ashok Kumar.

p. 8

The resulting declaration could therefore not stand.

p. 8