FIR for evading court notices only if jurisdictional magistrate complains: HC

A criminal case can be registered against a person evading court notices only on the complaint of a jurisdictional magistrate, the Punjab and Haryana high court has held.

The high court bench of justice HS Brar quashed a criminal case for non-appearance before court, and order of declaring a person proclaimed offender by a Hisar court as it found procedural lapses in his case.

“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 to maintain a healthy balance between personal liberty of the individual interests of the society in promoting law and order. 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 and unreasonableness,” the bench said asserting that if a certain thing is to be done in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden, it added.

In the case in hand one Vinay Kumar got embroiled in a cheque bounce case. However, subsequently, he struck a compromise with the opposite party. Somehow this fact did not come to the notice of the court hearing cheque bounce case. In March 2023, the court of judicial magistrate, Hisar declared him proclaimed offender and ordered the police to register a criminal case against him under section 174-A of IPC (offence of not appearing before the court).

He had challenged the order whereby he was declared proclaimed offender and the criminal case registered pursuant to that before the high court.

The high court found that the judicial magistrate, being a public servant, was required to follow the procedure, if he intended to initiate proceedings against the petitioner under Section 174-A. “The proper course of action would have been to file a written complaint before the competent jurisdictional court. However, instead of adhering to this legal requirement magistrate merely forwarded a copy of its order to the police to initiate proceedings under Section 174-A, which effectively led to the registration of impugned FIR,” it said adding that given the mandatory nature and scope of Section 195 of the CRPC (prosecution for contempt of lawful authority), such an approach was in clear violation of its provisions.

The court also found that the judicial magistrate had issued a proclamation straight away, without recording any reasons to indicate that the petitioner has absconded or is concealing himself from the process of law. Conspicuously, no summons or bailable warrants were issued prior to issuance of the proclamation, it further recorded.

“In the eventuality of his non- appearance, the presence of the accused first ought to have been secured by issuing summons or bailable warrants. The proclamation should not generally be issued at first instance. Since the proclamation was never served on the petitioner, all action taken post non-execution of proclamation stands vitiated,” the court said, quashing both PO order and criminal case.