JUDGMENT : 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, 28-3-2023, 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 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 order of 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. 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. (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. 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 non-bailable warrant. Paragraph 23 of the judgment is quoted hereinunder:- "23. Further in the same judgment, Hon'ble the Apex Court has issued certain guidelines in paragraph 23, to the subordinate courts, for issuance of non-bailable 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; (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 : AIR Online 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. 11. Further placing reliance on a judgment reported in 2021 Cri.L.J. 3461 : AIR Online 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 Offender' as stipulated in the Code of Criminal Procedure, comprises of the following steps: (i) Pre-requisites to issuing a Proclamation under Section 82(1) Cr.P.C. -A proclamation may only be published directing that the 'Proclaimed Person' appear at a specified time and place not less than 30 days from the date of publication, once the Court is satisfied 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 concealing himself in a manner to avoid execution of the warrant. (ii) Enquiry to ensure that warrant of arrest has been issued and all efforts to execute 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 Proclamation Section 82(2) Cr.P.C. -As per section 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 village. 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 proclamation cannot be issued without first issuing a warrant of arrest. 388. Where a proclamation published is in respect of a person accused of certain specified 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. 388. Where a proclamation published is in respect of a person accused of certain specified 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 herein-under:- "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 published. The publication includes, inter alia, the affixation of the proclamation at some conspicous place of the house and homestead 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 has to record its satisfaction 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). 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 further without 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. 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 non-bailable 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 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. ^^i=koyh çLrqrA ifjoknh mifLFkr ihŒ MCywŒ eksŒ ukflj dk lk{; 'kiFk&i= nkf[ky gqvkA vfHk;qDr vuqifLFkrA vfHk;qDr ds fo:} ,uŒ chŒ MCywŒ tkjh gksA okLrs gkftjh ftjg ihŒ MCywŒ 20-02-23 dks is'k gksA** 20. ^^i=koyh çLrqrA ifjoknh mifLFkr ihŒ MCywŒ eksŒ ukflj dk lk{; 'kiFk&i= nkf[ky gqvkA vfHk;qDr vuqifLFkrA vfHk;qDr ds fo:} ,uŒ chŒ MCywŒ tkjh gksA okLrs gkftjh ftjg ihŒ MCywŒ 20-02-23 dks is'k gksA** 20. From perusal of the aforesaid order, this does not transpire that any reason has been assigned for issuance of the non-bailable 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 high courts 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. 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 non-bailable 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 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.