Before Issuing Proclamation U/S 82, 83 CrPC Court Should Record Its Satisfaction That Person Is Deliberately Avoiding Proceedings: Allahabad HC

The Allahabad High Court has observed that before issuing a 'proclamation' under Sections 82/83 of CrPC, the Court concerned must record its satisfaction that despite the service of notice, summon, bailable warrant and non-bailable warrant, the person concerned has deliberately avoided the proceedings.

Emphasizing that if any order issuing a 'proclamation' under Sections 82/83 CrPC lacks the procedure described above, such an order would be a nullity in the eyes of the law, a bench of Justice Rajesh Singh Chauhan observed thus:  

"...any order of proclamation under Sections 82/83 Cr.P.C. must be passed on an application of a person concerned/ Investigating Officer etc. to the effect that after service of notice, summon, bailable warrant and non-bailable warrant upon the person concerned, he/ she is avoiding the proceedings so a proclamation may be issued and on such application, which must be supported with an affidavit, the court concerned may issue proclamation under Sections 82/ 83 Cr.P.C. indicating the subjective satisfaction on the aforesaid aspect in the order itself."

Importantly, the Court further noted that sometimes, the Investigating Agencies seek a proclamation order from the court concerned to "exert pressure" upon the person concerned and that the courts, without taking care of specific procedure, issue a proclamation under Sections 82/83 Cr.P.C. in a "cursory and mechanical" manner. 

These observations were made by the Single Judge while dealing with a petition moved by one Pradeep Agnihotri challenging the impugned summoning order and NBW order passed by the Court of Judicial Magistrate, Raebareli in a Complaint Case under Section 138 of Negotiable Instructions Act.

The case in brief

Essentially, the petitioner in the case is facing Section 138 NI Act proceedings initiated by the private opposite party on February 10, 2023, following a legal notice served on January 06, 2023. The petitioner argued that the notice had been sent to an incorrect address and that the complainant did not wait for the mandatory 15-day period for payment after serving the notice, despite it being sent to the wrong address. It was also contended that the 15-day period would have ended on February 21, 2023, yet the complaint was filed on February 10.

It was further argued that the notice had been sent to an address where the petitioner does not reside. As a result, the petitioner was not served the notice and could not participate in the proceedings. Subsequently, summons, bailable warrants, and non-bailable warrants were also issued against him. However, he became aware of these proceedings only when a proclamation under Section 82 CrPC was issued against him.

It was his further case that before issuing the proclamation under Section 82 CrPC the court concerned did not record its satisfaction about the fact as to whether the notice, summon, bailable warrant and non-bailable warrant were actually served upon the petitioner or not and as to whether he is deliberately avoiding those process.

In view of this, it was contended that the proclamation issued against him was issued in a casual and cursory manner and the same was per se illegal and against the settled proposition of law.

High Court's observations 

Having heard the counsel for the petitioner and having perused the material available on the record, at the very outset, the Court observed that before issuing a proclamation under Sections 82/83 CrPC, the Court concerned should at least record its satisfaction in the 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.

Regarding the ground taken by the petitioner to the effect that the present complaint had been filed in violation of Section 138 (c) of NI Act and the notice had been issued on the wrong address of the petitioner, the Court, while agreeing with the contention of the petitioner, opined thus:

"...any complaint under Section 138 of the N.I. Act should have been filed strictly in accordance with the mechanism so given under Section 138 of the N.I. Act. In the present case, it appears that the compulsory statutory period has not been taken care of by the complainant itself nor by the Court."

Against this backdrop, the Court granted the petitioner the liberty to appear before the court concerned on March 22, 2024. It directed that if the petitioner appears or surrenders before the court on the specified date, i.e., 22.03.2024, all coercive measures, including the summoning order dated 28.03.2023 and the proclamation order dated 15.02.2024, shall be kept in abeyance and liberty would be given to the petitioner to participate in the proceedings

"Thereafter, the petitioner may file appropriate application before the court concerned and such proceedings may be conducted and concluded with expedition by fixing short dates and without giving unnecessary adjournment to any of the parties concerned. It is needless to say that ample opportunity of hearing should be afforded not only the petitioner but the complainant also," the Court further directed as it disposed of the petition.

Also read: When Should Proclamation U/S 82, 83 CrPC Be Issued Against A Person To Compel His Appearance In Court?: Allahabad HC Explains

Case title - Pradeep Agnihotri vs. State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another 2024 LiveLaw (AB) 157

Case Citation: 2024 LiveLaw (AB) 157

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