Proclamation u/s 82 CrPC to be issued after due satisfaction of Court that person is deliberately avoiding proceedings: Allahabad High Court

Allahabad High Court

Allahabad High Court: In an Application filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), praying to quash the impugned summoning order as well as the non-bailable warrant issued and to stay the subsequent proceedings against the petitioner, Rajesh Singh Chauhan, J., disposed of the petition statingthat a summoning order shall only be issued after due satisfaction of the Court that the person concerned is deliberately avoiding the proceedings initiated against him/her. Any Order which does not satisfy such procedure prescribed will be null in the eyes of the law.

The petitioner was preferred with a legal notice on 06-01-2023 and a subsequent complaint under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’) on 10-02-2023. The petitioner claimed that after serving such legal notice and post expiry of thirty days period, the complainant will have to wait for fifteen days to get the payment.

The petitioner also mentioned that if such payment is not received within the aforesaid period, a complaint under Section 138 of NI Act may be filed. Another contention put forth by the petitioner is that neither the legal notice nor the complaint was preferred at the correct residing address of the petitioner, resulting in notice not being served upon the petitioner. It was due to this non-serving of notice that the petitioner could not participate in the proceedings and respond to the summons, bailable warrant and the non-bailable warrant issued against him.

The petitioner claimed that he came to know about the aforesaid proceedings and warrants against him only when a proclamation under Section 82 of the CrPC was issued against him. The petitioner claimed to be ready to participate in the proceedings to apprise the Court of his bona fide conduct but said that he was also at the same time, apprehensive of his liberty being curtailed.

The Bench observed that before issuing proclamation under Sections 82 read with Section83 of the CrPC by any Subordinate Court, satisfaction must be indicated in an order to the effect that despite the service of notice, summon, bailable warrant and non-bailable warrant, the person concerned has deliberately avoided the proceedings. That, further, if any order of proclamation under Sections 82 read with Section83 of the CrPC is to be issued, an affidavit claiming subjective satisfaction of the Court on the aforesaid aspect shall be mentioned in the order itself. If any order issuing proclamation under Sections 82 read with Section83 of the CrPC lacks the aforesaid procedure, such order would be nullity in the eyes of law.

The Court cited Inder Mohan Goswami v State of Uttaranchal (2007) 12 SCC 1, mentioning the mechanism as to how the liberty of the person may be curtailed as every citizen has got the fundamental right of his liberty under Article 21 of the Constitution. The Court also said that such right may be curtailed by the Court concerned, if the Court has got specific and cogent reason and that reason must be mentioned while issuing the Proclamation Order. The Court then went ahead to reproduce the relevant paras of the abovementioned case to ascertain the mechanism under which the liberty of person may be curtailed.

The Court addressed the issue of the legal notice and the summoning order being sent to the incorrect address leading to the complaint being filed in violation of Section 138 of the NI Act and opined that any complaint under Section 138 of the NI Act should have been filed strictly in accordance with the mechanism given under Section 138 of the NI Act. The Court added that it appears that the compulsory statutory period has not been taken care of by the complainant nor by the Subordinate Court.

Taking note of Section 143(3) of the NI Act, the Court said that every trial under this Act shall be conduced and concluded as expeditiously as possible and may be concluded within a maximum period of six months from the date of filing of such complaint.

The Bench did not find it proper to keep this petition pending any longer and gave liberty to the petitioner to appear before the Court concerned on a specific date. The Court also said that if the petitioner does surrender before the Court on the date fixed, the coercive steps including the impugned order and the proclamation order shall be kept in abeyance and liberty would be given to the petitioner to participate in the proceedings.

The Court also gave liberty to the petitioner to file appropriate application before the Court concerned and said that such proceedings shall be conducted and concluded with expedition. The Court further added that ample opportunity shall also be afforded not only to the petitioner but the complainant as well.

The Court clarified that if the petitioner does not appear before the Court concerned, the benefit of this Order would not be made available to him, and the Court shall take coercive steps permissible under law against the petitioner.

The Court then proceeded to dispose of the petition finally.

[Pradeep Agnihotri v. State of UP, 2024 SCC OnLine All 686, Order dated 07-03-2024]

Advocates who appeared in this case :

For the Petitioner: Advocate Shishir Pradhan

For the Respondent: Additional Government Advocate

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