# Pradeep Agnihotri v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 934
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-07
- **Case number:** Application U/S 482. No. 2218 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-agnihotri-v-state-of-u-p-anr-51715
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973
-
Sections
82,
83
&
482
-
Constitution of India,1950 - Article- 21, -
Negotiable
Instruments
Act,
1881
-
Sections 138, 138(C), 142 & 143(3) -
Application U/s 482 Cr.P.C. - for quashing the
impugned summoning order and non-bailable
warrant orders - complaint case - offence of
dishonour of cheque - petitioner taken plea that
the complaint was prematurely filed before the
statutory waiting period expired - and the legal
notice was sent to an incorrect address,
resulting in non-service and subsequent coercive
actions including proclamation under Section 82
Cr.P.C. - Court finds that, that investigating
agency seeks order of proclamations from the
trial court to exert the pressure upon the person
concern and the court concerned without taking
3 All. Pradeep Agnihotri Vs. State of U.P. & Anr.
935
care of specific procedure issues proclamation
under section 82/83 Cr.P.C. in a cursory and
mechanical
manner
-
court
held
that,
compulsory statutory period has not been taken
care of by the complainant itself nor by the
court - complaint under the N.I. Act, should
have been filed strictly in accordance with the
mechanism so given under section 138 N.I. Act,
- consequently, Application stands disposed of
with direction to the petitioner to appear before
the court concerned and to participate in the
trial, which must proceed expeditiously till all
coercive measures shall remain stayed and if he
does not appear before the court concerned the
benefit of this order would not be made
available to him.
(Para - 9, 11, 12, 13)

Application Disposed of. (E-11)

List of referred Cases: -

## Text

934 INDIAN LAW REPORTS ALLAHABAD SERIES
अतनिायग है कक विचारण की कायगिाही की
िैिता को चुनौती देने पर कोई न्यायालय
विचारण न्यायालय की कायगिाही की िैिता
की समीक्षा कर सके। विचारण न्यायालय
द्िारा आदेश पत्र पर आदेश इस प्रकार
अिंककत करें कक उसको पढ़ा ही नहीिं जा सके
अर्थिा अपने आदेशों में पूरे शब्दों की जगह
सिंक्षेपाक्षर का प्रयोग करना उधचत नहीिं है,
क्योंकक इससे पक्षकारों तर्था उच्च न्यायालय
दोनों को ही आदेश को समझने में कहठनाई
होती है।

25. पूिग में िी विचारण न्यायालयों को
अपने आदेश स्पष्टतया अिंककत करने के
तनदेश जारी ककए गए हैं, ककिंतु प्रस्तुत
प्रकरण में विचारण न्यायालय के आदेश
पत्र की प्रमाखणत छायाप्रतत के अिलोकन से
स्पष्ट है कक विचारण न्यायालय अिी िी
आदेश अिंककत करने में उक्त तनदेशों का
ध्यान नहीिं रखते हैं।

26. अतः यह तनदेश हदया जाता है कक
समस्त विचारण न्यायालय तर्था अपीलीय
न्यायालय, पत्रािली के आदेश पत्र में अपने
आदेश स्पष्ट रूप से अिंककत करेंगे और
उसमें सिंक्षेपाक्षर का प्रयोग करने से िचेंगे।
यहद लिंिे आदेश में कोई िड़ा शब्द अर्थिा
शब्दों का समूह िार-िार प्रयोग हो रहा है
तो ऐसी पररजस्र्थतत में एक िार पूरा शब्द
अर्थिा शब्दों का समूह प्रयोग करके और
उसके सार्थ उसका सिंक्षेपाक्षर सलखकर
आदेश / तनणगय में अन्य स्र्थानों पर िार-
िार पूरा शब्द अर्थिा िाक्यािंश के स्र्थान पर
सिंक्षेपाक्षर का प्रयोग ककया जा सकता है।

27. यह आदेश जनपद स्तर के
समस्त न्यायालयों के सिंज्ञान में लाने के
सलए उधचत कायगिाही की जाए।
----------
(2024) 3 ILRA 934
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.03.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482. No. 2218 of 2024

Pradeep Agnihotri ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Shishir Pradhan

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973
-
Sections
82,
83
&
482
-
Constitution of India,1950 - Article- 21, -
Negotiable
Instruments
Act,
1881
-
Sections 138, 138(C), 142 & 143(3) -
Application U/s 482 Cr.P.C. - for quashing the
impugned summoning order and non-bailable
warrant orders - complaint case - offence of
dishonour of cheque - petitioner taken plea that
the complaint was prematurely filed before the
statutory waiting period expired - and the legal
notice was sent to an incorrect address,
resulting in non-service and subsequent coercive
actions including proclamation under Section 82
Cr.P.C. - Court finds that, that investigating
agency seeks order of proclamations from the
trial court to exert the pressure upon the person
concern and the court concerned without taking
3 All. Pradeep Agnihotri Vs. State of U.P. & Anr.
935
care of specific procedure issues proclamation
under section 82/83 Cr.P.C. in a cursory and
mechanical
manner
-
court
held
that,
compulsory statutory period has not been taken
care of by the complainant itself nor by the
court - complaint under the N.I. Act, should
have been filed strictly in accordance with the
mechanism so given under section 138 N.I. Act,
- consequently, Application stands disposed of
with direction to the petitioner to appear before
the court concerned and to participate in the
trial, which must proceed expeditiously till all
coercive measures shall remain stayed and if he
does not appear before the court concerned the
benefit of this order would not be made
available to him.
(Para - 9, 11, 12, 13)

Application Disposed of. (E-11)

List of referred Cases: -

1. Inder Mohan Goswami & anr.Vs St. of
Uttaranchal & ors.reported in (2007) 12 SCC 1 ,

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Shishir Pradhan, learned
counsel for the petitioner and Sri Bishwa
Nath
Nishad,
learned
Additional
Government Advocate for the State.

2. In view of the proposed order, the
notice to opposite party No.2 is hereby
dispensed with.

3. By means of this petition filed
under Section 482 Cr.P.C., the petitioner
has prayed for the following reliefs: -

(i)
Wherefore,
it
is
most
respectfully prayed that this Hon'ble Court
may kindly be pleased to allow this petition
under Section 482 Cr.P.C. and quash the
impugned
summoning
order
dated
28.03.2023
and
N.B.W.
order
dated
15.02.2024 passed by the court of learned
Third Additional Civil Judge (Junior
Division)/ Judicial Magistrate, Raebareli in
Complaint Case No.4645 of 2023 (Sarika
Shukla vs. Pradeep Agnihotri), under
Section 138 of Negotiable Instructions Act,
Police Station-Kotwali, District-Raebareli,
as contained in Annexure Nos.1 and 2
respectively to the affidavit.

(ii) Further, it is most humbly
prayed from this Hon'ble Court that to stay
the proceedings as pending against the
present applicant in the learned court of
Third Additional Civil Judge (Junior
Division)/ Judicial Magistrate, Raebareli,
during the pendency of present petition as
under Section 482 Cr.P.C."

4. Sri Pradhan has assailed the
aforesaid orders and the proceedings on the
ground that the complaint in question has
been filed in violation of Section 138 (c) of
Negotiable Instruments Act (in short "N.I.
Act") inasmuch as the private opposite
party has preferred a legal notice on
06.01.2023 but the complaint has been filed
on 10.02.2023, whereas after giving the
legal notice and expiry of thirty days period
the complainant will have to wait for
fifteen days to get the payment which has
been demanded by him and if such
payment is not received within the
aforesaid period, the complaint under
Section 138 of N.I. Act may be filed. The
aforesaid period would be expiring on
21.02.2023. Sri Pradhan has taken second
ground by submitting that the legal notice
has not been preferred on the correct
address of the petitioner as the petitioner is
a resident of Bhimganj, Police StationDalmau, District-Raebareli but on the
tracking report it has been mentioned that
the aforesaid legal notice has been
delivered at Banapar BO though the
petitioner is not residing at that place.

5. Sri Pradhan has therefore stated
that since the legal notice has not been
936 INDIAN LAW REPORTS ALLAHABAD SERIES
served upon the petitioner, hence, he could
not contact the complainant. Not only the
above, when the complainant has filed the
complaint before the court concerned.
Further, the notice must have been issued
to the petitioner on such address where he
is residing, however, the notice has been
issued at the address where the petitioner is
not residing, resultant thereof, the notice
could not be served upon the petitioner and
he could not participate in the proceedings
and the summons, bailable warrant and
non-bailable warrant have been issued
against
him.
However,
when
the
proclamation under Section 82 Cr.P.C. has
been issued against the petitioner, then the
petitioner came to know about the aforesaid
proceedings.

6. Sri Pradhan has also stated that
before issuing the proclamation under
Section 82 Cr.P.C. the court concerned
must ensure on the fact as to whether the
notice, summon, bailable warrant and nonbailable warrant are served upon the
petitioner and as to whether he is
deliberately
avoiding
those
process,
inasmuch as this is a trite law that the
proclamation under Sections 82/83 Cr.P.C.
should not be issued in a casual and cursory
manner. As per Sri Pradhan, the impugned
order dated 15.02.2024 does not reveal that
the aforesaid satisfaction has been indicated
in the impugned order itself. Therefore, as
per Sri Pradhan, the impugned order dated
15.02.2024 issued under Section 82 Cr.P.C.
is per se illegal and against the settled
proposition of law.

7. Sri Pradhan has further submitted
that the petitioner is ready to participate in
the proceedings so that he could apprise the
trial court about his bonafide but the
petitioner is having apprehension that if he
appears before the court concerned his
liberty may be curtailed.

8. On the other hand, learned
Additional Government Advocate has tired
to defend the impugned order dated
15.02.2024 but could not dispute the
aforesaid submission of learned counsel for
the petitioner.

9. Having heard learned counsel for
the petitioner and having perused the
material available on the record, at the very
outset, I must observe that before issuing
proclamation under Sections 82/83 Cr.P.C.
by any Subordinate Court, at least,
satisfaction must be indicated in an 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.
Further, 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. If any order
issuing proclamation under Sections 82/83
Cr.P.C. lacks the aforesaid procedure, the
such order would be nullity in the eyes of
law. Sometimes, it has been noted that the
Investigating Agency seeks proclamation
order from the court concerned so as to
exert the pressure upon the person
concerned and the court concerned without
taking care of specific procedure issues
3 All. Pradeep Agnihotri Vs. State of U.P. & Anr.
937
proclamation under Sections 82/83 Cr.P.C.
in a cursory and mechanical manner.

10. The Apex Court in the case in re:
Inder Mohan Goswami and another vs.
State of Uttaranchal and others reported
in (2007) 12 SCC 1 has observed the
mechanism as to how the liberty of any
person may be curtailed inasmuch as every
citizen has got fundamental right of his
liberty under Article 21 of the Constitution
of India. Such liberty may be curtailed by
the court concerned if the court has got
specific and cogent reason and that reason
must be mentioned while issuing the
proclamation order. The relevant paras-53,
54, 55, 56 & 57 of the aforesaid case are
being reproduced here under:-

"When non-bailable warrants
should be issued.

53. Non-bailable warrant should
be issued to bring a person to court when
summons of bailable warrants would be
unlikely to have the desired result. This
could be when:

*it is reasonable to believe that
the person will not voluntarily appear in
court; or

*the police authorities are unable
to find the person to serve him with a
summon; or

*it is considered that the person
could harm someone if not placed into
custody immediately.

54. As far as possible, if the court
is of the opinion that a summon will suffice
in getting the appearance of the accused in
the court, the summon or the bailable
warrants
should
be
preferred.
The
warrants either bailable or non-bailable
should never be issued without proper
scrutiny of facts and complete application
of mind, due to the extremely serious
consequences and ramifications which
ensue on issuance of warrants. The court
must very carefully examine whether the
Criminal Complaint or FIR has not been
filed with an oblique motive.

55. In complaint cases, at the first
instance, the court should direct serving of
the summons along with the copy of the
complaint. If the accused seem to be
avoiding the summons, the court, in the
second instance should issue bailable-
warrant. In the third instance, when the
court is fully satisfied that the accused is
avoiding
the
courts
proceeding
intentionally, the process of issuance of the
non-bailable warrant should be resorted to.
Personal liberty is paramount, therefore,
we caution courts at the first and second
instance to refrain from issuing nonbailable warrants.

56.
The
power
being
discretionary must be exercised judiciously
with extreme care and caution. The court
should properly balance both personal
liberty and societal interest before issuing
warrants. There cannot be any straightjacket formula for issuance of warrants but
as a general rule, unless an accused is
charged with the commission of an offence
of a heinous crime and it is feared that he
is likely to tamper or destroy the evidence
or is likely to evade the process of law,
issuance of non-bailable warrants should
be avoided.

57. The Court should try to
maintain
proper
balance
between
individual liberty and the interest of the
public and the State while issuing nonbailable warrant."

11. So far as the other grounds taken
by Sri Padhan to the effect that the present
complaint has been filed in violation of
Section 138 (c) of N.I. Act and the notice
has been issued on wrong address of the
petitioner is concerned, I am also of the
938 INDIAN LAW REPORTS ALLAHABAD SERIES
considered opinion that 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.

12. Notably, as per Section 143 (3) of
N.I. Act, every trial under this Act shall be
conduced and concluded expeditiously as
possible and may be concluded within a
maximum period of six months from the
date of filing of such complaint. Therefore,
I do not find it proper to keep this petition
pending any longer, giving liberty to the
petitioner
appear
before
the
court
concerned on the date fixed i.e. 22.03.2024
and if the petitioner appears/ surrenders
before the court concerned on the date
fixed i.e. 22.03.2024, all coercive steps
including the impugned 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.

13. It is made clear that if the
petitioner does not appear before the court
concerned on the date fixed in terms of this
order, the benefit of this order would not be
made available to him and the learned court
below may take appropriate coercive steps,
which are permissible under law, against
the petitioner.

14. In view of the aforesaid
observations and directions, the instant
petition is disposed of finally.
----------
(2024) 3 ILRA 938
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2257 of 2024

Shamsher Bahadur & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Alok Srivastava

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 190, 190(1)(b) &
482 - Indian Penal Code, 1860 - Section -
308, 323, 504 & 506 - Application under
Section 482 Cr.P.C. - for quashing of the charge
sheet, taking cognizance and the summoning
order - FIR - offence of assault by the accused
over a land boundary dispute - conflict - injuries
- medical examination - investigation - St.ment
u/s 161 Cr.P.C. - charge sheet - take cognizance
under Section 308 IPC, noting the use of a
sharp
object
and
inadequacies
in
the
investigation - court observed that the law
requires that a Magistrate may take cognizance
of any offence upon a police report of the facts
constituting an offence - although the police
report may not allege commission of any
specific offence, in case the Magistrate is
satisfied that the facts St.d in the report make
out commission of any offence - therefore,
court upheld the Magistrate's power under
Section 190 Cr.P.C. to take cognizance of
offences based on facts in the police report,