# Maqbool Hasan v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Application U/S 482. No. 7434 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maqbool-hasan-v-state-of-u-p-anr-50719
- **Pages:** 8

## Headnote

Civil Law - Negotiable Instruments Act,
1881 - Section 138 - Code of Criminal
Procedure, 1973 - Sections 82 & 482 -
Issuance
of
Non-Bailable
Warrant
and
Proclamation - Validity - Applicant challenged
non-bailable
warrant
(NBW)
orders
dated
31.01.2023,
20.02.2023,
28.03.2023,
28.04.2023, and joint NBW/Section 82 Cr.P.C.
order dated 04.07.2023, issued due to nonappearance in a complaint case for cheque
bounce
of
Rs.5,00,000/-.
Applicant
had
appeared regularly before 31.01.2023 but failed
to appear on that date due to unavoidable
circumstances. Trial court issued NBW and
proclamation under Section 82 Cr.P.C. without
recording
reasons
or
following
prescribed
procedures.
Applicant
argued
that
NBW
issuance was mechanical, violating Raghuvansh
Dewanchand Bhasin guidelines, and Section 82
proclamation lacked reasons, publication, and
mandatory 30-day notice period. Court held that
NBW issuance requires recorded satisfaction to
avoid arbitrary curtailment of liberty under
Article 21. Section 82 mandates reasons to
believe the accused is absconding, with proper
publication of proclamation, which was not
followed.
Orders
dated
31.01.2023
and
subsequent orders, including proclamation, were
set aside as unlawful. Matter remitted to trial
court with directions for applicant to cooperate
and appear regularly. (Paras 6, 8-9, 19-25)

Application allowed.

List of Cases Cited:

## Text

1032 INDIAN LAW REPORTS ALLAHABAD SERIES
Kallu Khan and others (supra) as well as
Smt. Kaniz Fatima (supra).

15. The writ petition is dismissed,
accordingly.
----------
(2023) 9 ILRA 1032
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 03.08.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 7434 of 2023

Maqbool Hasan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ashok Kumar Mishra

Counsel for the Opposite Parties:
G.A.

Civil Law - Negotiable Instruments Act,
1881 - Section 138 - Code of Criminal
Procedure, 1973 - Sections 82 & 482 -
Issuance
of
Non-Bailable
Warrant
and
Proclamation - Validity - Applicant challenged
non-bailable
warrant
(NBW)
orders
dated
31.01.2023,
20.02.2023,
28.03.2023,
28.04.2023, and joint NBW/Section 82 Cr.P.C.
order dated 04.07.2023, issued due to nonappearance in a complaint case for cheque
bounce
of
Rs.5,00,000/-.
Applicant
had
appeared regularly before 31.01.2023 but failed
to appear on that date due to unavoidable
circumstances. Trial court issued NBW and
proclamation under Section 82 Cr.P.C. without
recording
reasons
or
following
prescribed
procedures.
Applicant
argued
that
NBW
issuance was mechanical, violating Raghuvansh
Dewanchand Bhasin guidelines, and Section 82
proclamation lacked reasons, publication, and
mandatory 30-day notice period. Court held that
NBW issuance requires recorded satisfaction to
avoid arbitrary curtailment of liberty under
Article 21. Section 82 mandates reasons to
believe the accused is absconding, with proper
publication of proclamation, which was not
followed.
Orders
dated
31.01.2023
and
subsequent orders, including proclamation, were
set aside as unlawful. Matter remitted to trial
court with directions for applicant to cooperate
and appear regularly. (Paras 6, 8-9, 19-25)

Application allowed.

List of Cases Cited:

1. Raghuvansh Dewanchand Bhasin Vs St.of
Mah., Criminal Appeal No. 1758 of 2011

2. Sunil Tyagi Vs Govt of NCT of Delhi & anr.,
2021 CriLJ 3461

3. Devendra Singh Negi Vs St. of U.P., Citation
Not Provided

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Ashok Kumar Mishra,
learned counsel for the applicant, Sri Atrey
Tripathi, learned A.G.A. for the State.

2. By means of the present
application, prayer has been made for
setting aside the orders of Non-Bailable
Warrant dated 31-1-2023, 20-2-2023, 28-32023, 28-4-2023 and the joint order of
NBW/82 Cr.P.C., dated 4-7-2023 passed by
Presiding Officer, Additional court room
no. 5, Lucknow against the petitioner, in
complaint case no. 2479 of 2019 (Mohd.
Nasir Vs Moqbool Hasan), U/S 138 N.I.
Act, P.S. Aliganj District- Lucknow.

3. Notice to opposite party no. 2 is
hereby dispensed with, as the matter being
decided, at the admission stage.

4. Learned counsel appearing for the
applicant submits that on 15.10.2018, a
cheque is said to be issued by the present
9 All. Maqbool Hasan Vs. State of U.P. & Anr.
1033
applicant in favour of the complainant,
amounting Rs.5,00,000/- and thereafter, the
same is said to be bounced and the notice
was issued to the applicant, on 01.02.2019,
by the opposite party no. 2, through his
attorney but the same was never served
upon the applicant.

5 . He submits that on 23.03.2019, the
complainant filed a case under section 138
of
Negotiable
Instrument
Act,
1881
(hereinafter referred to as the Act, 1881),
before the Chief Judicial Magistrate,
Custom, Lucknow and thereafter the
several dates were, fixed wherein, on
31.01.2023,
due
to
unavoidable
circumstances, the present applicant could
not appear before the trial court, which has
been explained in paragraph 19 of this
application and for non-appearance, for a
day, before the trial court, the non-bailable
warrant was issued. He submits that after
the order dated 31.01.2023, the other dates
were fixed i.e. on 20.02.2023, 28.03.2023
and, ultimately, on 28.04.2023 and the
orderof non-bailable warrant as well as
proclamation under section 82 was also
issued against the applicant and the
applicant is aggrieved with both the orders,
passed by the trial court as the same is
without adhering to the mandate of
provision of section 82 of Cr.P.C.

6. Contention of learned counsel for
the applicant is that a complaint was
instituted
and
thereafter,
when
the
summons were issued, the applicant kept
on appearing on each and every date before
the trial court, prior to 31.01.2023 and there
was no deliberate deviation in appearance
before the same. He submits that the
manner in which the order of non-bailable
warrant was passed, is totally against the
procedure prescribed under the law.

7. Adding his arguments, he has
drawn attention towards the procedure
prescribed for issuance of proclamation
under section 82 of Cr.P.C. Section 82 of
Cr.P.C. are read as under:-

"82. Proclamation for person
absconding.

(1) If any Court has reason to
believe (whether after taking evidence or
not) that any person against whom a
warrant has been issued by it has
absconded or is concealing himself so that
such warrant cannot be executed, such
Court may publish a written proclamation
requiring him to appear at a specified
place and at a specified time not less than
thirty days from the date of publishing such
proclamation.

(2) The proclamation shall be
published as follows:-

(i) (a) it shall be publicly read in
some conspicuous place of the town or
village in which such person ordinarily
resides;

(b)it shall be affixed to some
conspicuous
part
of
the
house
or
homestead in which such person ordinarily
resides or to some conspicuous place of
such town or village;

(c) a copy thereof shall be affixed
to some conspicuous part of the Court-
house;

(ii) the Court may also, if it thinks
fit, direct a copy of the proclamation to be
published in a daily newspaper circulating
in the place in which such person
ordinarily resides.
1034 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) A statement in writing by the
Court issuing the proclamation to the effect
that the proclamation was duly published
on a specified day, in the manner specified
in clause (i) of sub- section (2), shall be
conclusive evidence that the requirements
of this section have been complied with,
and that the proclamation was published
on such day."

8. Referring the aforesaid, he submits
that the above-said provision prescribes
that in case of any warrant issued against a
person and he is absconding and concealing
himself from such warrant, the court may
publish a written proclamation with the
requirement for appearance at specified
place and time, not less than thirty days
from
the
date
of
publishing
such
proclamation. He contended that so far as
the present case is concerned, the learned
trial court did not record any reason, while
issuing the proclamation under section 82,
which is apparent on the face of the order
sheet of the trial court. Further, the
proclamation which is required to be
published, has never been published, which
is also one of the important lacuna in the
order of the trial court.

9. The second fold of the argument
of learned counsel for the applicant is that
so far as the order with respect to the
non-bailable warrant is concerned, the
Hon'ble Apex Court has held in case of
Raghuvansh Dewanchand Bhasin vs
State of Maharashtra in Criminal
appeal No. 1758 of 2011 (Arising out of
S.L.P. (Crl.) No. 5412 of 2008) that the
'execution of a non-bailable warrant
directly involves curtailment of liberty of
a person and thus, the same cannot be
issued in a mechanical manner, but only
after recording satisfaction that how it is
warranted.

Further in the same judgment, Hon'ble
the
Apex
Court
has
issued
certain
guidelines
in
paragraph
23,
to
the
subordinate courts, for issuance of nonbailable warrant. Paragraph 23 of the
judgment is quoted hereinunder:-

"23.However, before parting with
the judgment, we feel that in order to
prevent such a paradoxical situation, we
are faced with in the instant case, and to
check or obviate the possibility of misuse of
an arrest warrant, in addition to the
statutory and constitutional requirements
to which reference has been made above, it
would be appropriate to issue the following
guidelines to be adopted in all cases where
non-bailable warrants are issued by the
Courts:-

(a) All the High Court shall
ensure that the Subordinate Courts use
printed and machine numbered Form No.2
for issuing warrant of arrest and each such
form is duly accounted for;

(b) Before authenticating, the
court must ensure that complete particulars
of the case are mentioned on the warrant;

(c) The presiding Judge of the
court (or responsible officer specially
authorized for the purpose in case of High
Courts) issuing the warrant should put his
full and legible signatures on the process,
also ensuring that Court seal bearing
complete particulars of the Court is
prominently endorsed thereon;

(d) The Court must ensure that
warrant is directed to a particular police
officer (or authority) and, unless intended
to be open-ended, it must be returnable
whether executed or unexecuted, on or
before the date specified therein;
9 All. Maqbool Hasan Vs. State of U.P. & Anr.
1035

(e) Every Court must maintain a
register (in the format given below), in
which each warrant of arrest issued must
be entered chronologically and the serial
number of such entry reflected on the top
right hand of the process;

(f) No warrant of arrest shall be
issued without being entered in the register
mentioned above and the concerned court
shall periodically check/monitor the same
to confirm that every such process is
always returned to the court with due
report and placed on the record of the
concerned case;

(g) A register similar to the one
in clause (e) supra shall be maintained at
the concerned police station. The Station
House Officer of the concerned Police
Station shall ensure that each warrant of
arrest issued by the Court, when received is
duly entered in the said register and is
formally entrusted to a responsible officer
for execution;

(h) Ordinarily, the Courts should
not give a long time for return or execution
of warrants, as experience has shown that
warrants are prone to misuse if they remain
in control of executing agencies for long;

(i) On the date fixed for the
return of the warrant, the Court must insist
upon a compliance report on the action
taken thereon by the Station House Officer
of the concerned Police Station or the
Officer In-charge of the concerned agency;

(j) The report on such warrants
must be clear, cogent and legible and duly
forwarded by a superior police officer, so
as to facilitate fixing of responsibility in
case of misuse;

(k) In the event of warrant for
execution beyond jurisdiction of the Court
issuing it, procedure laid down in Sections
78 and 79 of the Code must be strictly and
scrupulously followed; and

(l) In the event of cancellation of
the arrest warrant by the Court, the order
cancelling warrant shall be recorded in the
case file and the register maintained. A
copy thereof shall be sent to the concerned
authority, requiring the process to be
returned unexecuted forthwith. The date of
receipt of the unexecuted warrant will be
entered in the aforesaid registers. A copy of
such order shall also be supplied to the
accused"

10. Referring the aforesaid judgment
he submits that a clear direction is issued
by the Apex Court, which is law of the
land, but the learned trial court has ignored
the same.

11. Further placing reliance on a
judgment reported in 2021 CrI.L. J.
3461:AIROnline 2021 Del 912 Sunil Tyagi
v. Govt of NCT of Delhi and another, he
has referred paragraphs 386, 387 and 388
thereof. Paragraphs 386, 387 and 388 are
quoted herein-under:-

"386.
The
procedure
for
declaration of a 'Proclaimed Person' and a
'Proclaimed Of- fender' as stipulated in the
Code of Criminal Procedure, comprises of
the following steps:

(i) Pre-requisites to issuing a
Proclama-
tion
under
Section
82(1)
Cr.P.C. - A procla- mation may only be
published directing that the 'Proclaimed
Person' appear at a speci- fied time and
place not less than 30 days from the date of
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
publication, once the Court is sat- isfied
that:

(a) A warrant of arrest has
already been issued and all possible
attempts to execute the warrant have been
made;

(b) Subsequent to a warrant
having
been
issued,
the
person
is
absconding or conceal- ing himself in a
manner to avoid execution of the warrant.

(ii)
Enquiry
to
ensure
that
warrant of ar- rest has been issued and all
efforts to ex- ecute the same have been
made by the Police Officer - Prior to issue
of proclamation, a warrant as per the
Second Schedule, Form No. 2 or Form No.
9 of the Code must have been issued.

387. Procedure for Publication of
the Proc- lamation Section 82(2) Cr.P.C. -
As per sec- tion 82(2) Cr.P.C., the
proclamation must be read in some
conspicuous place of the town or village in
which the person resides. It shall also be
affixed to some conspicuous part of the
house in which the person resides or to
some conspicuous place of the town or vil-
lage. Further, a copy of the same must also
be affixed to some conspicuous part of the
Court house. The Court may also direct a
copy of the proclamation to be published in
a daily newspaper circulating in the place
is which such person ordinarily resides.
The terms of Section 82 Cr.P.C. are
mandatory and a proc- lamation cannot be
issued without first issu- ing a warrant of
arrest.

388.
Where
a
proclamation
published is in respect of a person accused
of certain speci-fied heinous offences and
such person fails to appear at the specified
place
and
time
required
by
the
proclamation
may
pronounce
him
a
'Proclaimed Offender' and make a declaration to that effect under Section 82 Cr.P.C."

12. Placing reliance on the abovesaid
judgment, he submits that the Hon'ble High
Court has held that while passing the order
for issuance of proclamation under section
82, reasons must be recorded and if it is
not, the whole proceeding shall suffer
unlawfulness.

13. Again, he has referred the
judgment rendered in the case of Devendra
Singh Negi versus State of U.P. and has
placed reliance on the paragraphs 13 and 14
of the above-said judgment. Paragraphs 13
and 14 of the judgment are quoted hereinunder:-

"13. The object of the attachment
under Sec. 83 of the Code is not to punish
an accused but to procure his appearance.
My view is supported by a Division Bench
case of Dayanand v. State (1). The salutory
provisions of proclamation under Sec. 82
have been enacted to protest an unaware
person and to give notice to him that he is
wanted in the crime to enable him to
surrender to custody. Sec. 82 (2) lays down
riqirous conditions of the manner in which
the proclamation has to be publi-shed. The
publication
includes,
inter
alia,
the
affixation of the proclamation at some
conspicous place of the house and
homstead of the accused, as also at the
notice-board of the court house.

14. The words "has absconded or
is concealing himself so that such warrant
cannot be executed" in Sec. 82 of the Code
are significant. Every person who is not
immediately
available
cannot
be
characterised as an absconder. The court
9 All. Maqbool Hasan Vs. State of U.P. & Anr.
1037
has to record its satisfation that the
accused has absconded or is concealing in
order to avoid execution of the warrant.
The provisions of Sec. 82 are mandatory
and are to be construed strictly. Sec. 82
requires that the court must, in the first
instance, issue a warrant and it must put
down its reasons for believing that the
accused is absconding or concealing
himself. My view expressed above is
supported by a Division Bench case of Dip
Narain Singh v. State of Bihar (2). Thus, in
every case where the warrant is not
executed, resort cannot be had to Sec. 82
and it may be necessary to examine the
officer concerned who had gone to execute
the warrant and to the measures adopted
by him to serve the same. (See Kunwar
Singh v. State (3)."

14. Referring the aforesaid, he
submits that the case of the present
applicant is squarely covered with the ratio
of judgment, above-said.

15. Concluding his arguments, he
submits that since the present applicant was
appearing on each and every date, fixed by
the trial court, as such, there is bonafide
non-appearance of the present applicant,
on a day i.e. on 31.01.2023 and on the said
date, the trial court without recording any
reason and furtherwithout following the
guidelines prescribed by the Apex Court,
issued non-bailable warrant against the
present applicant, which curtails the right
of life and liberty of the applicant and goes
against the mandate of Article 21 of the
Constitution of India. He further submits
that the proclamation under section 82 of
Cr.P.C. has also been issued along with the
issuance of non-bailable warrant and that
too without assigning any reason and
without publication of the proclamation.
Thus, submission is that the whole criminal
proceedings before the trial court, vide
orders dated 31.01.2023 and 28.04.2023 are
not only vitiate in the eyes of law but those
are also against the settled proposition of
law.

16. On the other hand, learned
counsel appearing for the State has
vehemently
opposed
the
submissions
aforesaid and submits that a complaint was
properly instituted by the opposite party no.
2 and the learned trial court has rightly
proceeded while issuing the summons. He
added that prior to passing the order dated
31.01.2023, there is no erroneousness in the
proceedings of the trial court, though,
thereafter, the proceedings have been
challenged on the premises that the trial
court did not adhere to the provisions of
law, whereas, it is an admitted fact that the
applicant was absent on 31.01.2023 and
thereafter also, thus, the trial court had no
option, rather to issue non-bailable warrant
against the applicant for procuring his
presence.

17. He further contended that the
procedure with respect to issuance of nonbailable warrant as well as issuance of
proclamation under section 82 of Cr.P.C.,
are envisaged, for ascertaining the presence
of the accused, so that the trial can be
concluded timely and effectively, but so far
as the present applicant is concerned, the
applicant has no explanation that why he
did
not
appear
on
31.01.2023
and
thereafter, on 28.04.2023, i.e. date, when
the proclamation under section 82 of
Cr.P.C. was issued. Therefore, submission
of learned counsel for the State is that there
is no illegality or infirmity in the orders
impugned.

18. Considering the submission of
learned counsel for the parties and after
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of the material placed on record, it
transpires that some amount, which was
promised to be given, through cheque, was
later on became bounced and thereafter,
notice was given to the present applicant
and the complainant filed a case under
section 138 of Act, 1881.

19. It borne out from the factual
matrix of the case that prior to 31.01.2023,
the present applicant was kept on appearing
and on 31.01.2023, due to the reasons,
which has been explained in paragraph 19
of the application, the applicant could not
appear before the trial court and the trial
court has passed the following orders, on
31.01.2023.

"पत्रावली प्रस्तुत । पररवादी उपकस्र्त पी0डब्लू0
मो० नाकसर िा साक्ष्य शपर्- पत्र दाकखल हुआ। अकियुक्त
अनुपकस्र्त । अकियुक्त िे कवरूद्ध एन0बी0डब्लू0 जारी हो। वास्ते
हाकजरी कजरह पी0डब्लू0 20.02.23 िो पेश हो । "

20. From perusal of the aforesaid order,
this does not transpire that any reason has
been assigned for issuance of the nonbailable warrant against, the applicant
though, time and again, the Apex Court with
a view to check the possibility of misuse of
arrest of warrant, issued guidelines, wherein,
all the highcourts are instructed to ensure that
the subordinate courts should use the printed
and machine numbered form 2 and the
complete
particulars
of
the
case
are
mentioned on the warrant and further, the
presiding Judges of the courts should put full
legible signatures on the process, ensuring the
courts seal bearing complete particulars. It
has also been said to ensure that warrant be
directed to a particular police officer,
returnable, where executed or un-executed on
or before the date specified and every court
would maintain register in which each
warrant of arrest be entered serialy.

21. It is trite law that the 'non-bailable
warrant directly involves the curtailment of
liberty of a person' and therefore, this
should not be passed in a mechanical
manner and the trial court should always be
cautious,
while
issuing
non-bailable
warrant. So far as the present case is
concerned, the learned trial court while
passing the impugned order, has ignored
the settled proposition of law.

22. This Court is also of considered
opinion that the the provision of section 82
of Cr.P.C. is also very clear that a
Magistrate has to record reasons while
issuance of the proclamation and it is also
very overt form very first wording of the
provision of section 82 of Cr.P.C. that this
can be issued if there is 'reason to believe'
and meaning thereby, that the same must
overtly be mentioned in the order.

23. The provision of section 82
clearly mandates that once a court has
reason to believe that any accused person,
against whom, a warrant has been issued,
absconded or concealed himself, so that the
warrant cannot be executed, may publish
written
proclaimation
requiring
his
appearance at specified place and specified
time. This clearly indicates that the
proclamation of section 82 can be issued,
against such person, against whom, warrant
has already been executed.

24. When this Court examines the
order dated 28.03.2023, passed by the
learned trial court, it is lacking of the
compliance of the procedure prescribed
under section 82 of Cr.P.C. as the nonbailable warrant and proclamation under
section 82 of Cr.P.C. has been issued
simultaneously and further, the specified
date and time, is not mentioned in the
9 All. Ashu Jain Vs. State of U.P. & Ors.
1039
order, which is in contravention of the
provisions of section 82 of Cr.P.C.

25. This Court is of considered
opinion that, it cannot be said that every
person who is not present after the warrant
is issued, is an absconder, but the court,
who is issuing the proclamation under
section 82, has some reason to believe that
such person is absconding or concealing
him to avoid the execution of warrant. The
'reason to belive' is to be reduced in
writing, in nut and shell. The legislature in
its wisdom was cautious enough to
promulgate the provisions of proclamation,
which is an stringent provision and
therefore, the safeguards are also in-built,
in the provision itself. Thus, the paramount
importance of this provision must be
honoured and applied, so as to restrain any
sort of misuse of law, provided thereof.

26. In view of the above-noted
submissions and discussions, the orders
dated 31-1-2023 and the subsequent orders
passed by learned trial court in complaint
no. 2479 of 2019 (Mohd. Nasir Vs
Moqbool Hasan) U/S 138 N.I. Act P.S.
Aliganj District- Lucknow, are hereby set
aside.

27. The matter is remitted back to the
trial court concerned to proceed with the
trial, in accordance with the law adhering
the instruction, direction and guidelines
issued by the Apex Court and this Court,
time to time.

28. The applicant is directed that he
will cooperate with the trial proceedings
and he will remain present on each and
every date fixed before the trial court and
he will not seek any adjournment further,
unless
required
under unavoidable
circumstances.

29. It is clarified that if the applicant
further avoids the court proceedings, the
trial court is at liberty to take further course
of action, in accordance with law.

30. With the aforesaid observations
and directions, this application is hereby
allowed.
----------
(2023) 9 ILRA 1039
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Application U/S 482 No. 15078 of 2023

Ashu Jain ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Ms. Shruti Malviya

Counsel for the Opposite Parties:
G.A., Sri Amit Daga

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 397 & 482 -
Family Courts Act, 1984 - Section 19 -
Maintainability - Application under Section 482
Cr.P.C. challenging order of Family Court under
Section 125 Cr.P.C. - Statutory remedy of
revision under Section 19 of the Family Courts
Act read with Section 397 Cr.P.C. available -
Inherent jurisdiction of the High Court under
Section 482 Cr.P.C. is wide but to be exercised
sparingly and in exceptional circumstances such
as lack of jurisdiction or manifest injustice - Not
to be invoked where efficacious statutory
remedy exists - Since applicant had already
preferred revision against the same order,
present application under Section 482 Cr.P.C.
held not maintainable - Dismissed.

Application dismissed.