The Allahabad High Court holds that the Courts should be careful and record their satisfaction before issuing proclamation under section 82, 83 Cr.PC.

The Allahabad High Court has allowed a quashing petition filed under section 482 of the Cr.PC and allowed the Petitioner / accused to participate in the proceedings before the trial court.
 
The facts leading to the present petition are that the complainant filed a criminal complaint under section 138 of the Negotiable Instruments Act and served 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 have expired on 21.02.2023. Hence the complaint as filed was premature.
 
The second ground taken by the counsel for the petitioner was that the legal notice has not been preferred on the correct address of the petitioner as the petitioner is a resident of Bhimganj, Police Station-Dalmau, 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.
 
The High Court observed thus:
 
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, then such order would be nullity in the eyes of law.
 
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 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.

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