The Punjab & Haryana High Court has set aside a proclamation order against a petitioner residing in Canada, reinforcing that procedural due process under the Code of Criminal Procedure cannot be bypassed merely because an accused is abroad. This judgment clarifies the limits of judicial power to declare someone a proclaimed offender without exhausting all reasonable avenues for personal service.
Background & Facts
The Dispute
The petitioner, Rohit Kumar @ Satnam Singh @ Babbu, was declared a proclaimed offender by the Judicial Magistrate First Class, Rupnagar, on 11.03.2015 in connection with FIR No. 06 dated 04.01.2014 registered at Police Station Chamkaur Sahib under Sections 420 IPC (now Section 318 IPC) and Section 12(1)(b) of the Passports Act, 1967. The petitioner contends he was not in India at the time of the FIR’s registration or the proclamation order, having left for Canada on 23.12.2012.
Key Facts
- The petitioner departed for Canada on 23.12.2012, as acknowledged in the FIR itself.
- FIR was registered on 04.01.2014, over a year after his departure.
- No attempt was made by the trial court to serve summons or notice at his foreign address in Canada.
- No publication of notice in a newspaper circulated in Canada or through the Indian Embassy/Consulate was undertaken.
- The petitioner was declared a proclaimed offender on 11.03.2015 without any evidence of personal or substituted service.
- The petitioner has since remained abroad and was unaware of the proceedings until the issuance of the proclamation order.
Procedural History
- 23.12.2012: Petitioner leaves India for Canada.
- 04.01.2014: FIR registered at Chamkaur Sahib Police Station.
- 11.03.2015: Judicial Magistrate declares petitioner a proclaimed offender under Section 82 CrPC without serving notice.
- 16.03.2026: Petitioner files present petition under Section 528 BNSS seeking quashing of the proclamation order.
- 23.03.2026: Hearing before the Punjab & Haryana High Court.
The Parties' Positions
For the Petitioner: Argued that the trial court violated Sections 41, 82, and 105 CrPC by failing to make any effort to serve summons or notice at his known foreign address. Relied on the Government of India’s 11.02.2009 Notification on Mutual Legal Assistance Treaties (MLATs), which includes Canada as a reciprocating country. Cited Narinder Singh v. State of Punjab, Jasbir Kaur v. State of Punjab, and Jaswant Singh v. State of Punjab as binding precedents.
For the Respondent: The Deputy Advocate General accepted notice and conceded that the petitioner had not appeared before the court, but offered no justification for the absence of service attempts abroad.
Relief Sought
The petitioner seeks quashing of the proclamation order dated 11.03.2015 and an opportunity to surrender before the trial court with a reasonable timeline and conditions.
The Legal Issue
Can a court declare an accused a proclaimed offender under Section 82 CrPC without making any effort to serve summons or notice at his known foreign residence, especially when India has a Mutual Legal Assistance Treaty with the country where he resides?
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that Section 82 CrPC requires the court to first attempt personal service or substituted service through publication in local newspapers or other means reasonably likely to reach the accused. The failure to utilize India’s MLAT with Canada - established under the 2009 Ministry of Home Affairs Notification - constitutes a violation of procedural fairness. Reliance was placed on Narinder Singh v. State of Punjab (2019), where the court quashed a similar proclamation because no effort was made to serve the accused at his residence or through diplomatic channels. The petitioner emphasized his willingness to surrender and participate in proceedings, demonstrating no intent to evade justice.
For the Respondent
The State did not contest the factual assertion that no service was attempted abroad. The Deputy Advocate General merely stated that the petitioner had not appeared before the court, without addressing the legal obligation under Section 82 CrPC or the existence of MLATs. No evidence was adduced to show that service was impossible or that alternative means were exhausted.
The Court's Analysis
The Court examined the statutory framework under Section 82 CrPC, which mandates that a proclamation may be issued only after the court is satisfied that the accused has absconded or concealed himself to avoid service. The Court emphasized that the purpose of summons and warrants is not punitive but to secure presence for trial, and that procedural compliance is non-negotiable.
"The very purpose of issuance of summons, warrants etc. is to compel and secure the presence of the accused to face trial and establish the rule of law so as to ensure finalization of the proceedings."
The Court relied on three prior judgments of the same High Court: Narinder Singh, Jasbir Kaur, and Jaswant Singh. In Jasbir Kaur, the court set aside a proclamation against a woman residing in Canada, holding that the trial court’s failure to use diplomatic channels rendered the order void. Similarly, in Jaswant Singh, the court quashed a proclamation where the accused was in Italy and no attempt was made to serve him through the Indian Embassy.
The Court noted that the Government of India’s 2009 Notification explicitly provides for reciprocal arrangements with 22 countries, including Canada, for service of judicial documents. The trial court’s complete inaction in this regard amounted to a failure to follow the procedure in letter and spirit.
The Court further held that the petitioner’s absence was not willful evasion but a consequence of lawful residence abroad. The absence of any effort to serve him rendered the proclamation order legally unsustainable.
The Verdict
The petition was allowed. The order dated 11.03.2015 declaring the petitioner a proclaimed offender is set aside. The petitioner is directed to surrender before the trial court on or before 15.05.2026, subject to the court’s satisfaction and upon payment of costs of Rs. 25,000 to be deposited with Sai Aasra Paraplegic Rehab Centre (Account No: 9612001641, IFSC: KKBK0004201) within 15 days. He is at liberty to apply for anticipatory or regular bail in the main case. If the petitioner fails to surrender by the stipulated date, the present petition shall stand dismissed without further reference to this Court.
What This Means For Similar Cases
Procedural Compliance Is Non-Negotiable
- Practitioners must now argue that Section 82 CrPC requires courts to exhaust all reasonable means of service - including diplomatic channels under MLATs - before declaring someone a proclaimed offender.
- Courts cannot rely on mere non-appearance; they must record reasons for why service was impossible.
- Failure to comply with the 2009 MHA Notification may render proclamation orders void ab initio.
Foreign Residence Does Not Equate to Evasion
- An accused residing lawfully abroad cannot be presumed to be absconding merely because they are not in India.
- The burden shifts to the prosecution to prove willful evasion, not just absence.
- Petitioners with valid foreign residency should immediately file petitions under Section 528 BNSS if proclaimed without service.
Strategic Surrender and Bail
- This judgment provides a clear pathway: surrender within the court’s deadline, pay costs, and then apply for bail.
- Practitioners should prepare bail applications in advance, citing this judgment to argue against custodial remand.
- Costs imposed are not punitive but procedural; they should be paid promptly to avoid dismissal of the petition.
