P&H HC Sets Aside Cheque-Bounce Accused’s Proclaimed-Person Order Over Defective Proclamation, Directing Bail On Surrender Within 30 Days

In brief

The question

1. Whether the proclamation proceedings were invalid because the Magistrate had not recorded satisfaction that the petitioner was absconding or concealing himself to avoid service.

The court held

The petition was allowed, and the order dated 3 January 2023 declaring the petitioner a proclaimed person was set aside.

It also directed

The petitioner was directed to surrender before the Trial Court within 30 days; the Trial Court was directed to admit him to bail and proceed with the trial in accordance with law.

01Facts

The petitioner sought relief under Section 528 of the BNSS, 2023, against the order declaring him a proclaimed person in a complaint under Section 138 of the Negotiable Instruments Act, 1881, and directing initiation of proceedings under Section 174-A IPC.

p. 1

Summons and a newspaper publication had been directed to an address at which the petitioner was not residing.

pp. 1–3

The Magistrate later ordered a proclamation for 7 December 2022, but the proclamation was executed on 2 December 2022; the petitioner was declared a proclaimed person on 3 January 2023.

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The execution report recorded affixation of copies but did not record public reading of the proclamation.

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02Issues

i.1. Whether the proclamation proceedings were invalid because the Magistrate had not recorded satisfaction that the petitioner was absconding or concealing himself to avoid service.

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ii.2. Whether the proclamation was invalid because the petitioner was not given at least 30 days from its publication to appear.

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iii.3. Whether the proclamation was invalid because the execution report did not establish that it was publicly read as required by Section 82(2)(i)(a) Cr.P.C.

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03Law Applied

Section 82 Cr.P.C. requires the court to record satisfaction that a person has absconded or concealed himself to avoid execution of process before issuing a proclamation.

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The person must be allowed the prescribed minimum period of 30 days to appear; failure to provide 30 clear days is a fatal jurisdictional infirmity vitiating the proclamation proceedings, as held in Ajay Kumar v. State of UT Chandigarh and Narender Kumar v. State of Haryana.

p. 3

Section 82(2)(i)(a) Cr.P.C. requires public reading of the proclamation at a conspicuous place in the town or village; omission of this mandatory step renders the notice and subsequent proceedings a nullity, as held in Rahul Dureja v. State of Punjab and the other authorities cited by the Court.

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Provisions in the judgment · 2 · Linked ones open on LawLens

Negotiable Instruments Act, 1881 Section 138

Code of Criminal Procedure, 1973 Section 82

04Reasoning

The Magistrate did not record the required satisfaction that the petitioner was absconding or concealing himself, particularly when process had been directed to an address where he was not residing.

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Further, the proclamation was executed on 2 December 2022 for appearance on 7 December 2022, and no fresh proclamation allowed the petitioner 30 clear days before he was declared a proclaimed person on 3 January 2023.

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Finally, the execution report showed affixation but did not establish that the proclamation had been publicly read, as Section 82(2)(i)(a) requires.

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These defects rendered the proclamation proceedings unlawful.

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05Holding

The petition was allowed, and the order dated 3 January 2023 declaring the petitioner a proclaimed person was set aside.

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The petitioner was directed to surrender before the Trial Court within 30 days; the Trial Court was directed to admit him to bail and proceed with the trial in accordance with law.

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LawLens.Punjab and Haryana High Court

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