Sumer Kumar v. State Of Haryana And Another

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of decision: 20.09.2023 Sumer Kumar ....Petitioner versus State of Haryana and another ....Respondent

CORAM:

HON'BLE MR. JUSTICE ARUN MONGA Present:- Mr. Daljit Singh Virk, Mr. C.S.Jattana, Advocates for petitioner.

Ms. Svaneel Jaswal, Additional A.G., Haryana. ***** ARUN MONGA, J. (ORAL) The instant petition has been filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for quashing of order dated 06.05.2023 (Annexure P-3) passed by learned Judicial Magistrate Ist Class, Sirsa, whereby petitioner was declared as a proclaimed person in complaint case No.NACT-1655-2021, dated 23.12.2021 under Section 138 of the Negotiable Instruments Act, 1881, concerned SHO was directed to lodge FIR, thereafter FIR bearing No.563 dated 12.07.2023 (Annexure P2), was registered under Section 174-A of the Indian Penal Code, 1860 (IPC), at Police Station, Civil Line Sirsa, District Sirsa and all subsequent proceedings emanating therefrom.

2.

Learned counsel for the petitioner contends that matter stands settled as entire cheque amount has been paid to the complainant/respondent no.2 by the petitioner and complaint case under Section 138 Negotiable Instrument Act, 1881 (for short 'the Act') has also been withdrawn vide order dated 31.08.2023 (Annexure P-5) by the complainant. He further contends that no useful purpose would be served by keeping the present proceedings under Section 174-A of IPC, pending. 3.

Learned State counsel opposes the prayer made petition and submits that order declaring petitioner as a proclaimed person has rightly been passed. She further submits that the offence under Section 174-A IPC is independent of the main case.

4.

Given the nature of order being passed, there is no necessity to issue notice to respondent no.2, as no serious prejudice would be caused to him. Notice to respondent No.2 is thus dispensed with.

5.

Arguments heard.

6.

The complaint against the petitioner was for an offence under Section 138 of the Act.

7.

Vide order dated 06.05.2023 (Annexure P-3) passed by learned Judicial Magistrate Ist Class, Sirsa, recorded its satisfaction that the accused-petitioner had absconded, declared him as a proclaimed person and vide order dated 01.07.2023 directed that intimation be sent to the concerned police station to initiate proceedings against him under Section 174-A of IPC. Aforesaid FIR was thus registered. In my opinion, the order for registering an FIR itself is not sustainable and fatal to the FIR for the reasons stated hereinafter.

8.

Reference may be had to judgment rendered by me in Pardeep Kumar versus State of Punjab and another1 passed in CRM-M-41656-2023 (O&M) decided on 23.08.2023 wherein I have, inter alia, opined that the offence under Section 174-A of IPC falls within the scope Section 195(1) (a)(i) of the Code ibid which provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Further, it was held that if after declaring an individual as a "proclaimed person" or "proclaimed offender," the Court decides to proceed against him for an offence under section 174-A of IPC, it has to institute a formal written complaint in the competent jurisdictional court and that the order passed for registering FIR and the FIR so registered in such case were not sustainable in law. 9.

In the present case, proceedings under Section 174-A of IPC were not initiated as per guidelines and ratio laid down in Pardeep Kumar judgment ibid. As an upshot, it is held that the judgment and order dated 06.05.2023 passed by the learned 1 2023 Live Law (PH) 181

Magistrate is not sustainable on that ground alone. Neither there is any compliance of the relevant statutory requirements in letter and spirit, for declaring the petitioner a proclaimed person/offender, nor is the impugned judgment of trial court in terms of the guidelines laid in Pardeep Kumar judgment. For the sake of brevity, the guidelines laid down in Pardeep Kumar judgment are not being reproduced and the same may be referred therefrom. The requisite application of mind by the Court while invoking criminal liability of the petitioner for offence under Section 174-A of IPC is also lacking herein. The said initial order dated 06.05.2023 itself which formed the basis of the registration of the FIR under Section 174-A of IPC against the petitioner and subsequent trial are bad in law.

10.

As submitted by the learned counsel for the petitioner, the entire cheque amount was paid to the complainant and the complaint under section 138 of the Act was withdrawn vide order dated 09.09.2023 Annexure P-5. On withdrawal of the complaint and termination of it's proceedings against the petitioner, the requirement for his appearance in Court also came to an end.

11.

Considering the aforesaid facts and circumstances, I am of the opinion that the impugned order, FIR and all subsequent proceedings emanating therefrom are liable to be quashed.

12.

Accordingly, the order dated 06.05.2023 (Annexure P-3) is hereby set aside and FIR bearing No.563 dated 12.07.2023 (Annexure P-2), registered under Section 174A IPC at Police Station, Civil Line Sirsa, District Sirsa along with all consequential proceedings arising therefrom against the petitioner, are quashed. 13.

Petition is allowed accordingly.

14.

Pending application(s), if any, shall also stand disposed of. (ARUN MONGA) JUDGE 20.09.2023 Vandana Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No