IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: April 10, 2013
State of Punjab and another…Respondents
CORAM: HON’BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Sanjay Gupta, Advocate, for the petitioner.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
NARESH KUMAR SANGHI, J.
1. Prayer in this petition filed under Section 482, Cr.P.C., is for quashing the order dated 4.1.2013 (Annexure P-3), passed by the learned Judicial Magistrate Ist Class, Hoshiarpur, whereby the petitioner was declared as a proclaimed person in a complaint case, titled as “Varinder Kumar vs. Puneet Sharma“, pending before the learned Judicial Magistrate Ist Class, Hoshiarpur.
2. The brief facts of the case are that respondent No. 2- complainant, Varinder Kumar, presented a complaint for prosecution of the petitioner, Puneet Sharma, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, ‘the Act’), before the learned Judicial Magistrate Ist Class, Hoshiarpur. Vide order dated 17.10.2009, the learned Judicial Magistrate Ist Class, Hohiarpur, summoned the petitioner to face trial for the offence punishable under Section 138 of the Act. The petitioner appeared before the learned Court below and was released on bail on 19.5.2010. For few dates the petitioner appeared before the learned Court below, but on 21.11.2011 when he failed to appear before the learned Judicial Magistrate Ist Class, his bail was cancelled and he was ordered to be summoned by way of non-bailable warrants. In spite of that, the presence of the petitioner could not be secured. Therefore, by resorting to the procedure laid down in Section 82, Cr.P.C., he (petitioner) was declared as a proclaimed offender vide order dated 4.1.2013, which is under challenge before this Court.
3. Learned counsel submitted that after grant of bail on 19.5.2010, the petitioner appeared before the learned Trial court on 14.8.2010, 18.10.2010, 1.3.2011 and 12.7.2011, but on 21.11.2011 he could not attend the Trial Court since he had to go to Bangalore due to personal reasons and before leaving for Bangalore, he had informed his counsel with regard to his absence on the said date; later on he came to know that his counsel did not move an application for exemption from personal appearance and, therefore, non-bailable warrants were issued for securing his presence; and thereafter the petitioner remained confined to bed for about 1½ months due to dengue fever. Learned counsel further submitted that the petitioner could not be declared as a proclaimed offender by virtue of Section 82, Cr.P.C.. In support of his contention, he has placed reliance on a judgment of this Court rendered in the case of Arpit v. State of Haryana (CRM-M-31141-2012, decided on 5.10.2012). He had also argued that the offence punishable under Section 138 of the Act, was a bailable offence, therefore, the learned Trial Court was not competent to issue non-bailable warrants for securing the presence of the petitioner. He has also placed reliance on the judgment of this Court in the case of Ramesh Kumar Saini v. State of Haryana and another (CRM-M-4387-2012, decided on 15.2.2012).
5. Since the offence under Section 138 of the Act was bailable one, therefore, on appearance of the petitioner before the learned Court below on 19.5.2010, he was granted bail. However, he failed to appear before the learned Court below on 21.11.2011 and thereafter remained absent for more than one year and two months, therefore, he was declared as a proclaimed offender on 4.1.2013.
6. The contention raised by the learned counsel that the petitioner could not be declared as a proclaimed offender, is not tenable. The case of Arpit (supra) is not applicable to the facts and circumstances of the present case. Even otherwise, in a latest judgment in the case of Deeksha Puri v. State of Haryana, 2013 (1) R.C.R. (Criminal) 159, this Court held that the order declaring a person as proclaimed offender, cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the sections mentioned in Section 82(4), Cr.P.C.
7. The other contention of the learned counsel that in a bailable offence, non-bailable warrants cannot be issued is also not tenable. Where, after grant of bail to the accused in a bailable offence, he fails to appear before the Court, in that eventuality, the bail granted to him can be cancelled and his presence can be ordered to be secured by way of non-bailable warrants because once a person violates the conditions of the bail bonds furnished in a bailable offence, then the bailable offence becomes non-bailable. Reference can be made to sub- section (2) of Section 436, Cr.P.C., which reads as under:-
“(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446.”
8. Reference can also be made to Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376, wherein it was held that a person, accused of bailable offence, has not an unqualified, absolute and an indefeasible right to be released on bail even though he is guilty of conduct entirely subversive of a fair trial in the Court. The judgment in Ramesh Kumar Saini’s case (supra) is also not applicable to the facts and circumstances of the case in hand.
9. Keeping in view the totality of the circumstances of the case, the impugned order, dated 4.1.2013 (Annexure P-3), passed by the learned Judicial Magistrate Ist Class, Hoshiarpur, cannot be said to be perverse or illegal. Therefore, the present petition sans merit and the same is hereby dismissed.
(NARESH KUMAR SANGHI)
April 10, 2013