Final Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CR No. 104/2023
Manoj Kumar vs Anil Khurana
12.07.2023
Present: Mr. Abhishek Garg, Ld. Counsel for the petitioner.
None for the respondent.
Be awaited.
(VISHAL GOGNE)
ASJ02/East/KKD/Delhi/12.07.2023
Present: Mr. Abhishek Garg, Ld. Counsel for the petitioner.
None for the respondent.
Be awaited.
(VISHAL GOGNE)
ASJ02/East/KKD/Delhi/12.07.2023
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CR No. 104/2023
Manoj Kumar vs Anil Khurana
12.07.2023
4:00 pm.
Present: Mr. Abhishek Garg, Ld. Counsel for the petitioner.
None for the respondent.
Since none has appeared for the respondent on repeated
calls today and also on the previous date of hearing i.e. 04.07.2023
despite appearance having been entered by a counsel for the respondent
on 10.05.2023, it is to be reasonably concluded that the respondent does
not wish to advance any arguments in rebuttal of the present revision
petition.
The present petition under section 397 Cr.PC is directed
against the order dated 23.02.2003 passed by the Ld. MM wherein the
application of the present petitioner for cancellation of process under
section 82 and 83 Cr. PC issued against him was dismissed.
The ld MM recorded as under:
“23.02.2023
Matter taken up through VC on CISCO Webex.
File taken up on application on behalf of the accused for
cancellation of proceedings U/s 82 & 83 Cr.PC.
Present: Ld. counsel for the complainant.
None for the applicant/accused.
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Perusal of the file reveals that the accused has not
been appearing before the court since 19.07.2022 whereupon the
application was filed before the court and accused was directed to file
the bail bond and produce the surety before the court vide order dated
10.02.2023 which has not been complied yet by the accused.
At this stage, court is not inclined to allow this application.
As the accused has not complied the order of this court
application stands dismissed.
Put up for the date fixed i.e. 15.04.2023.
(DEEPALI SRIVASTAVA)
MM(NI Act) Digital Court
East/KKD Courts 23.02.2023”
The ld counsel for the petitioner has submitted that the
application was dismissed despite the petitioner having moved for
cancellation of the proceedings under section 82 and 83 Cr. PC on
13.12.2022 itself, when the said process had been issued. Also, that he
could not join the online proceedings on 23.02.2023 through VC as he
had gone to the hospital for the regular check up of his wife.
The court has perused the trial court record.
It is seen that vide order dated 19.07.2022, bailable warrants
issued on 22.02.2022, were recorded as having been received
unexecuted. The trial court thus issued NBWs against the accused on
19.07.2022. On the next date i.e. 13.12.2022, the Ld. Trial Court
recorded that the NBWs against the accused were received with the
report that he had gone out of station. Process under section 82 Cr. PC
was then issued by the ld. Trial Court against the accused.
This court has perused the report of the Process Server on the
NBWs issued for 13.12.2022. This report rather reveals that the present
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petitioner had vacated the premises bearing No. 9/2342, Gali No.11,
Kailash Nagar near Sabji Mandi, East Delhi110031 about one year
back. Infact the landlord of the petitioner stated a new address i.e. house
no. 2409, Gali No. 13, Kailash Nagar where the process server found the
wife of the petitioner who stated that he was out of station for work. The
statement of the landlord is appended to the report of the process server.
In this scenario, a fresh address of the present petitioner had
evidently come on record before the ld. Trial Court. The petitioner being
reportedly out of station cannot be equated with deliberate avoidance of
proceedings. There was no basis for concluding that the accused was
absconding or concealing himself in order to prevent the execution of the
warrants. In the absence of such satisfaction, the warrants of process
under section 82 Cr. PC was erroneous.
Moreover, the petitioner did, on 13.12.2022 itself, move an
application for cancellation of the process under section 82 and 83 Cr.
PC.
Consequently, it was improper for the Ld. Trial Court to have
dismissed the application for cancellation of the said process vide order
dated 23.02.2023. The objective of all process being to secure the
presence of the accused, the trial court ought to have noted that the
petitioner had submitted to the court proceedings by duly moving for
cancellation of the coercive process.
In view of the above noted error in the proceedings dated
23.02.2023 and in the interest of hearing and trial on merits, the present
revision petition is allowed.
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The order dated 23.02.2023 is set aside.
The process under section 82 and 83 Cr. PC against the accused is
cancelled.
The petitioner/accused is directed to appear before the ld. Trial
Court for furnishing of the bail bonds and surety bonds in terms of the
order of the Ld. Trial Court dated 10.02.2023.
Let a copy of this order be sent to the Ld. Trial Court and
the TCR be sent back.
Let the file in revision be consigned to Record Room.
Let a copy of this order be given dasti to Ld. Counsel for
the appellant.
(VISHAL GOGNE)
ASJ02/East/KKD/Delhi/12.07.2023
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