Final Order 2

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 1
Rajesh Goyal Vs. State of NCT of Delhi & Ors.
CR no.412/23
27.09.2023
Present: Sh. Ashok Chhaparia with Sh. Rajiv Tehlan and Sh.
Sarabjeet Singh, Advocates, for the petitioner.
Sh. Vineet Dahiya, Ld. Addl. Public Prosecutor for
the State/ R-1.
Complainants Ayush Bhateja and Rashmi Bhateja in
person with Sh. Gohil Relli, Ld. Counsel for the
complainant.
IO SI Vikas is present.
1. As per the facts of the case , the petitioner herein is
an accused in case FIR no.134/18 U/s420/406/120B/34 IPC PS
Subhash Palace. The version of investigating agency appears to
be that the petitioner herein was not joining the investigation and
was concealing himself to evade the process of law. Ld. Trial
Court accordingly proceeded to issue NBWs and thereafter,
process U/s 82 Cr.P.C. against him. The process U/s 82 Cr.P.C.
was executed on 31.07.2023 but the petitioner neither appeared
before the Court nor joined the investigation.
2. However, before the petitioner could be formally
declared as an absconder/ proclaimed offender, he approached
Ld. Trial Court with an application seeking cancellation of
proceedings U/s 82 Cr.P.C. The said application was taken up for
hearing by Ld. Trial Court on 20.09.2023. After hearing the
submissions from IO, both the accused including the petitioner
were declared absconder vide the order passed on even date. The
applications moved for cancellation of proceedings U/s 82
Cr.P.C. on behalf of the petitioner was also dismissed without any
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speaking order on the same. The said order is subject matter of
challenge in this revision petition.
3. During course of arguments on the revision petition,
Ld. counsel for the petitioner has submitted that before declaring
a person as an absconder or a proclaimed offender U/s 82
Cr.P.C., Magistrate has to satisfy himself that the person against
whom warrants have been issued is either absconded or is
concealing himself from process of law. Here, in this case, it was
the petitioner himself who had appeared before the Court with an
application for cancellation of proceedings U/s 82 Cr.P.C. His
appearance before the Court with the application itself implies
that the petitioner was not concealing himself or absconding from
the process of law.
4. Ld. Counsel has further submitted that one of the
per-requisite for declaring a person as an absconder or
proclaimed offender is that Magistrate has to 'satisfy' himself
that the accused is deliberately absconding or evading the
process. In this case, the application for cancellation of process
U/s 82 Cr.P.C. moved by the petitioner was dismissed without
any speaking order. Moreover, the Ld. Magistrate has not
elaborated in the impugned order that how he reached the
conclusion that applicant himself was evading the process of law
when applicant was appearing before him with his counsel
through VC.
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5. Ld. Counsel has further submitted that now the
matter has already been settled between the parties and the
petitioner is ready to make the payment of remaining amount to
the complainant.
6. On the other hand, Ld. Addl. PP for the State has
submitted that the process U/s 82 Cr.P.C. was executed on
31.07.2023. After execution of the said process, applicant was
supposed to appear on or before 30.08.2023. Since he failed to
appear within the stipulated period, the offence U/s 174A Cr.P.C.
as well as the conditions of declaring proclaimed offender/
proclaimed person U/s 82 Cr.P.C. were obtained. There is nothing
wrong in the impugned order.
7. Arguments heard. Record perused.
8. Under Section 82 Cr.P.C., any person against whom
a warrant has been issued by Court has absconded or concealed
himself to frustrate the execution of warrants can be declared as a
proclaimed offender/ proclaimed person. However, before any
such declaration of proclamation, the Court must record the
reasons for his belief that the person has absconded or has
concealed himself. It has to be established that he was available
at or about time of commission of alleged offence and ceased to
be available after commission of offence before he can be treated
as an absconder. Similarly, it has to be established that there is no
immediate prospect of arresting the accused.
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9. In case titled as Devender Singh Negi Vs. State of
UP 1994 Allahabad High Court, Hon'ble Court has held that the
words 'has absconded or concealing himself so that such warrants
cannot be executed' in Section 82 of the Code are significant.
Every person who is not immediately available cannot be
characterized as an absconder. The Court has to record its
satisfaction that the accused has absconded or is concealing in
order to avoid execution of warrants. The provisions U/s 82
Cr.P.C. are mandatory and are to be constued strictly. Section 82
Cr.P.C. requires that the Court must, in first instance, issue a
warrants and it must put down its reasons for believing that the
accused is absconding or concealing himself.
10. In case titled as Mohd. Haris Usmani Vs. State of
NCT of Delhi, Hon'ble Delhi High Court has placed reliance
on following observations made by Hon'ble Apex Court of India
In Dalmia Resorts International private Ltd. Vs. Deepak Gupta
and Another 2002 SC. Relevant observations are
Before proceeding to analyse the facts of the present
case, I deem it apposite to refer to the decision rendered by a
Co-ordinate Bench of this Court in Dalmia Resorts
International Pvt. Ltd v. Deepak Gupta and Anr. reported as
2002 SCC Signature Not Verified Digitally Signed
By:SANGEETA ANAND Signing Date:09.12.2021 12:01:52
OnLine Del 538 while dealing with a complaint case under
the N.I. Act, wherein it was opined that issuance of
proclamation and attachment orders are exceptional remedies.
While also taking note of the non-application of mind by the
concerned Magistrate to the Report of the process server, the
Court had quashed the proceedings initiated under Sections
82/83 Cr.P.C. against the accused therein in the following
terms:-
"3. ...This apart, proclamation for any person
absconding can be issued if the Court has the
reasons to believe that the person against whom
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a warrant has been issued by it has absconded or
is concealing himself and that warrant of arrest
cannot be executed only then the Court is
empowered to publish a written proclamation
requiring him to appear to a specified date and
time, within thirty days from the date of
publication of such proclamation. The term
'absconding' does not necessarily imply a
change of place. The petitioner being a private
limited company, the question of its absconding
does not arise. The process of proclamation and
attachment are exceptional remedies and should
not be issued as a matter of course whenever the
warrant is returned unexecuted. The non-
conformance of Section 82(1) and (2) would be
violation of the procedure established by law
within the meaning of Article 21 of the
Constitution of India. It appears that while
issuing process under Sections 82/83 Cr. P.C.,
the Court did not even notice the report on the
warrant. The impugned order issuing
proclamation against the petitioner, on the face
of it is not sustainable."
11. Thus, declaring a person as an absconder or a
proclaimed offender U/S 82 Cr.P.C has serious consequences.
Non appearance of a person after publication U/s 82 Cr.P.C. is a
punishable offence U/s 174 A IPC where punishment may go
upto 7 years. Therefore, before proceeding to issue the
proclamation or subsequently declaring a person as an absconder,
the Court first has to satisfy itself that the earlier process issued
in form of summons or warrants came into notice of the person
concerned. Not only this, court has to further satisfy itself that
person has deliberately absconded and warrants shall not be
executed against him. Only after the aforesaid satisfaction, court
can issue proclamation U/s 82 Cr.P.C. and thereafter, can declare
a person proclaimed offendor.
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12. Here in this case, as the impugned order itself
reflects that the process U/s 82 Cr.P.C. was executed on
31.07.2023. However, before the Court could issue a formal
declaration of proclaimed person/ proclaimed offender against
the petitioner, he moved an application seeking cancellation of
the same. The impugned order would show that Ld. Magistrate
has not mentioned even a single word regarding the averments
made by the petitioner in the said application. It has also not been
elaborated that what was the material placed before it on basis of
which the Court arrived at the conclusion that petitioner was
absconding or concealing himself to frustrate the process of law.
Moreover, on the date of impugned order, the petitioner himself
had appeared (through VC) before Ld. Magistrate. In case, Ld.
Magistrate was not satisfied with the virtual appearance of the
petitioner, he could have directed him for physical appearance.
However, Ld. Magistrate apparently proceeded to declare him a
proclaimed person U/s 82 Cr.P.C. without even considering his
application.
13. The impugned order shows that neither Ld.MM has
recorded any reason for believing that petitioner had absconded
to frustrate execution of warrants nor considered his appearance
through VC. No speaking order was passed regarding averments
made in the application for cancellation. The impugned order
shows that it has been passed without following the proper
procedure and mandate of law. The impugned order is
accordingly set aside. Directions are issued to Ld. CMM to pass a
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speaking order on the application for cancellation of proceeding
U/s 82 Cr.P.C. afresh after considering all the averments .
Ld.CMM, while deciding the application shall also keep in
mind that the offences under which the present case has been
registered are compoundable in nature and the complainant has
submitted before this court that he has settled the matter with the
accused.
14. It is clarified that this Court has not granted any
protection against the arrest to the petitioner. However, if his
arrest is deemed necessary, the IO shall follow the proper
procedure keeping in view the mandate of the judgment passed
by Hon'ble Apex Court of India in case titled Satender Kumar
Antil Vs. CBI, 2022, SC. and Arnesh Kumar Vs. State of Bihar.
15. The revision petition is disposed off with the
aforesaid directions. Matter be remanded back for 04.10.2023 for
hearing on his application for cancellation of process U/s 82
Cr.P.C..
Revision file be consigned to RR.
Copy of this order be sent to the Ld. Trial Court
alongwith TCR, if any.
BABRU BHAN
ADDL.SESSIONS JUDGE-03,
NORTH WEST DISTT,
ROHINI COURTS
DELHI/ 27.09.2023
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