Non-Recording of Satisfaction Before Declaring Person as Proclaimed Offender Is an Incurable Illegality: Punjab & Haryana High Court

“Coercive Measures Must Comply With Article 21 – Procedure Must Be Fair, Just and Non-Arbitrary” - In a significant ruling Punjab and Haryana High Court quashed an order declaring the petitioners as proclaimed persons under Section 82 of the Code of Criminal Procedure, 1973. Justice Harpreet Singh Brar emphasized that such orders must be passed with due judicial satisfaction, and any deviation from the mandatory procedure vitiates the proclamation itself. The Court held that the trial court’s action suffered from “incurable illegality” and was in violation of both statutory mandates and constitutional safeguards under Article 21.

The case arose from a criminal complaint filed under Section 138 of the Negotiable Instruments Act, 1881, concerning a dishonoured cheque of ₹3,00,000/-. The petitioners, named accused in the complaint, were declared proclaimed persons by the Judicial Magistrate, Malerkotla on 21.02.2024. They approached the High Court under Section 482 CrPC, asserting that the proclamation order was passed without issuance of proper summons or warrants and without recording satisfaction that the petitioners were absconding or concealing themselves.

Counsel for the petitioners argued that the trial court mechanically proceeded under Section 82 CrPC, despite clear information on record regarding the petitioners' residential address at Ranchi and without verifying service of summons.

Justice Brar critically examined the procedure adopted by the Magistrate and observed: “A perusal of the impugned order reveals that the trial Court issued proclamation without recording reasons of its belief that the petitioner has absconded or is concealing himself.”

Reaffirming the mandatory nature of compliance under Section 82(2) CrPC, the Court held: “Non-recording of the satisfaction itself makes such order suffering from incurable illegality.”

The Court cited its earlier judgment in Major Singh @ Major v. State of Punjab, 2023 (3) RCR (Criminal) 406, and also relied upon Sonu v. State of Haryana, 2021 (1) RCR (Crl.) 319, which held: “Conditions specified in Section 82(2) CrPC for publication of proclamation are mandatory and non-compliance renders the entire proceedings a nullity.”

Article 21 – The Constitutional Backbone

Emphasizing the importance of constitutional protection under Article 21, the Court observed: “While the scheme of criminal justice system necessitates curtailment of personal liberty to some extent, it is of the utmost importance that the same is done in line with the procedure established by law… Such procedure must be compatible with Article 21 of the Constitution of India i.e., it must be fair, just and not suffer from the vice of arbitrariness or unreasonableness.”

The Court noted that the petitioners had voluntarily approached the Court and undertaken to cooperate with the trial proceedings, making the coercive order both unjustified and unnecessary.

Observing that the object of coercive processes is to secure the presence of the accused, and not to penalize them mechanically, the Court concluded: “The petitioner in the present case has himself come forward and has undertaken to appear before the trial Court on each and every date.”

Accordingly, Justice Brar set aside the proclamation order dated 21.02.2024 and directed: “The petitioner is directed to appear before the trial Court within a period of 04 weeks from today and on his doing so, he shall be admitted to bail on his furnishing bail bonds and surety bonds to the satisfaction of the trial Court, along with costs of ₹5,000 to be deposited with the Poor Patient Welfare Fund, PGIMER, Chandigarh, for wasting precious time of the Court.”

The High Court also made it clear that if the petitioner failed to appear within the stipulated time, the protection granted would stand vacated.

This judgment fortifies the principle that procedural safeguards under criminal law are not empty formalities but essential bulwarks of personal liberty. The Punjab and Haryana High Court reiterated that the declaration of a person as a proclaimed offender cannot be undertaken casually or in mechanical fashion. Judicial satisfaction is not a matter of convenience but a legal necessity.

By upholding Article 21 as the guiding light for procedural fairness, the Court reminded lower courts that liberty must not be sacrificed at the altar of administrative convenience or procedural shortcuts.

Date of Decision: 06 May 2025