Final Order 5

Order Details: COPY OF JUDGMENT
Pdf Text: DLSH010073022024
CR No.247/2024
M/s N Square Hospitality LLP Vs.State of
NCT of Delhi & Anr.
Page 1 of 7
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
Criminal Revision No. 247/2024
In the matter of :-
1. M/s N Square Hospitality LLP
Through it's Authorized Signatory
Mohammad Nadeem Khan
2. Mohammad Nadeem Khan
(Partner of M/s N Square Hospitality LLP
S/o Mohd. Saleem Khan
R/o 7-Mirchi Tola, Kali Nadi,
Old Tehsil Road, Bulandshahar,
U.P. 103001
Also at: C-9/8, F/F,
Yamuna Vihar, Delhi-110053
Also at: F-19, Third Floor,
Preet Vihar, Delhi.
3.Naveen Ali
(Partner of M/s N Square Hospitality LLP)
S/o Shri Zulfikar Ali
R/o N-39, Gali No. 2M, Bajranbali Mohalla,
Maujpur, Delhi-110053
Email Id: siddiquin360@gmail.com
Also at: C-9/8, F/F,
Yamuna Vihar, Delhi-110053
Also at: F-19, Third Floor,
Preet Vihar, Delhi.
….. Revisionists/
Accused
Versus
1. The State of (NCT) Delhi
………...Respondent No.1
2. Sh. Sunil Dhingra
S/o late Shri H.R. Dhingra
R/o D-111, Surajmal Vihar,
New Delhi-110092
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CR No.247/2024
M/s N Square Hospitality LLP Vs.State of
NCT of Delhi & Anr.
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….. Respondent No.2/
complainant
CRIMINAL REVISION UNDER SECTION 397 / 399 CR.P.C
Date of institution : 25.11.2024 (e filling)
Date when judgment reserved : 25.01.2025
Date of Judgment : 28.01.2025
J U D G M E N T : -
1. The present revision petition was filed on 25.11.2024 against order
dated 25.07.2024, by which the application of the revisionists / accused
persons for cancellation of Non Bailable Warrant (NBW) was disposed of
by staying the NBWs till the next date of hearing subject to cost of
Rs.2000/- upon each of the two accused persons / revisionist no.2 and 3.
2. The delay in filing the revision petition after limitation period of 90
days is condoned for the reasons stated in the application for condonation
of delay.
3. Perusal of the record reveals that the complaint case u/s.138
Negotiable Instrument Act (hereinafter referred to as N.I. Act) was first
taken up by Ld. Trial Court on 01.09.2022 and accused were summoned
vide order dated 09.05.2023. On 11.01.2024 the accused persons were
admitted to bail on furnishing personal bond in the sum of Rs.10,000/- with
one surety in like amount. The accused were directed to file the bail bonds
through e-portal and to physically produce the same on the next date i.e.
30.03.2024. However on 30.03.2024 none appeared on behalf of accused
persons, as a result, NBWs were issued against accused no.2 and 3 /
revisionist no.2 and 3 through concerned SHO returnable for 25.07.2024.
On 25.07.2024 both revisionist no.2 and 3 (accused no.2 and 3) along with
counsel appeared in person before the Ld. Trial Court and an application
was moved for cancellation of NBWs which were issued on 30.03.2024.
The Ld. Magistrate vide impugned order dated 25.07.2024 stayed the
NBWs till next date of hearing i.e. 25.11.2024 subject to cost of Rs.2000/-
per accused. The relevant portion of the said order is reproduced as under :
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DLSH010073022024
CR No.247/2024
M/s N Square Hospitality LLP Vs.State of
NCT of Delhi & Anr.
Page 3 of 7
-
25.07.2024
Matter taken up through VC on CISCO Webex from Court room no. 408,
New Building, KKD.
Present : Sh. Tarique Hanif Saifi, Ms. Heena Khan and Ms. Kritika Dixit,
Counsel for the complainant.
Sh. Prashant Yadav and Ms. Lubna, counsel for the accused no. 2
and 3 with accused no. 2 and 3.
Accused no. 1 is LLP through Mohd. Nadeem Khan.
Application for cancellation of NBW filed on behalf of the accused.
Perused. Let the same be taken on record. Ahlmad is directed to upload the
same on layers.
Upon questioning, accused persons have submitted that grand father of
Nadeem Khan had expired, however, they were unable to tell the date of
death. Further, upon questioning qua the 40th they stated that they were
busy in making arrangements for the same. However, upon further
questioning, they have stated that the 40th was on 29.03.2024 which is
actually one day prior to the last date of hearing. At this stage, they have
submitted that they had informed the previous counsel regarding their non-
appearance and given instructions to seek exemption. However, to the
contrary, a submission has been made in the application that accused
persons were not well, upon questioning the same, they have stated that
they have not aware of the last date of hearing.
From the discussion above, it is clear that accused persons are taking
varied and contrary stand which are not in line with each other to justify
their non-appearance.
However, keeping in view, the right to liberty, the NBWs issued against
both the accused persons are stayed till NDOH subject to cost of Rs.
2,000/- per accused to be deposited in DLSA.
Application is accordingly disposed off………………..
4. Perusal of the order reveals that on the same day, notice u/s.251
Cr.P.C was framed against the accused persons and admission / denial u/s
294 CrPC was also conducted. Both the notices u/s 251 CrPC and the
admission / denial of documents is signed by the revisionist no.2 and 3
namely Mohd Nadim Khan and Naveen Ali.
5. The aforementioned order has been assailed before this court on the
ground that the cost imposed upon the revisionists is beyond their capacity
and that the order was passed by Ld. Trial Court in a casual and mechanical
manner.
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NCT of Delhi & Anr.
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6. Notice of the revision petition was issued to respondent no.2 and
vakalatnama on behalf of respondent no.2 was filed on last date of hearing.
No reply was filed on behalf of respondent no.2.
7. As per record none appeared for the revisionist on 22.01.2025 i.e.
on the day on which ld. Counsel for respondent no.2 appeared for the first
time (through VC). Further none appeared for the revisionist despite
repeated calls even on the last date of hearing i.e. 25.01.2025. Submission
on the revision petition were made by Ld. Counsel for respondent no.2,
who submitted that the present revision petition has been filed deliberately
to delay the proceedings and that there are several cases against the accused
persons / revisionist no.2 and 3 u/s 138 NI Act. He also stated that there is
no basis to challenge order dated 25.07.2024, which was appropriately
passed by the Ld. Trial Court.
DISCUSSION:
8. Perusal of the Trial Court record reveals that NBWs were issued by
the Ld. Magistrate against revisionist no.2 and 3 by order dated 30.03.2024
for 25.07.2024 and the warrants were issued on 13.05.2024 which came
back unexecuted. While going through order dated 25.07.2024 the court
found that despite the presence of accused persons in the court and despite
the fact that notice u/s 251 CrPC and admission / denial of documents u/s
294 CrPC was conducted in the court upon which the signatures of the
accused persons were also taken, still the accused persons were not taken
into custody or admitted to bail, rather the NBWs were stayed against the
accused persons till next date of hearing i.e 25.11.2024.
9. The question that arises before this court is whether the NBWs
issued against the accused persons as per order dated 30.03.2024, could
be stayed on 25.07.2024 vide impugned order, when the accused persons
were physically present before the court?
10. In other words the issue is whether on appearance of the accused
before the court and upon moving application for cancellation of NBWs,
the only course available to the court is that:-
1. the accused may be taken into custody OR
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CR No.247/2024
M/s N Square Hospitality LLP Vs.State of
NCT of Delhi & Anr.
Page 5 of 7
2. the accused be admitted to bail OR
3. the warrants (NBWs) may be cancelled.
OR
besides the said three options, whether the court can also stay the NBWs.
11. In the present case when the accused persons (revisionist No. 2 and
3) appeared in person before the court on 25.07.2024 and prayed for
cancellation of NBWs, by moving an application in this regard, Ld. Trial
Court neither took them into custody or admitted them to bail, nor the
warrants (NBWs) were cancelled. Ld. Trial Court stayed the warrants till
the next date and disposed of the application.
12. To answer the said question, it would be apt to make reference to
section 70 Cr.P.C. As per section 70 Cr.P.C, warrants of arrest issued by the
court under CrPC shall be in writing, signed by Presiding Officer of the
said court and shall bear the seal of the said court. The warrants so issued
by the court remain in force until they are canceled by the court which
issued it or until they are executed.
13. The FORM in which the warrants are issued is available in the
Second Schedule to the Code as under:-
FORM No. 2
WARRANT OF ARREST
(See section 70)
To (name and designation of the person or persons who is or are to execute the
warrant).
WHEREAS (name of accused) of (address) stands charged with the
offence of (state the offence), you are hereby directed to arrest the said………..,
and to produce him before me. Herein fail not.
Dated, this day of ,19 .
(Seal of the Court) (Signature)
14. Section 70 Cr.P.C lies in Part B of Chapter VI of Cr.P.C i.e “Process
To Compel Appearance”. The very purpose of Chapter VI is to provide
mechanism to ensure the presence of a person before the court, when ever
so directed by the court. The contents of FORM 2, as reproduced above,
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M/s N Square Hospitality LLP Vs.State of
NCT of Delhi & Anr.
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further make it clear that the purpose of issuing a NBW under section 70(1)
Cr.P.C is to ensure the presence of accused before the court.
15. When the accused appears before the court in person, Chapter VI of
the Cr.P.C no longer applies. At this point, Chapter XXXIII, which deals
with "Provisions as to Bail and Bonds," becomes relevant.
16. Thus, in the opinion of this Court, the only course available to a
Magistrate when an accused against whom NBWs have been issued,
appears before the Magistrate is that:
1. the accused may be taken into custody OR
2. the accused be admitted to bail and released upon furnishing bonds OR
3. the warrants (NBWs) may be cancelled under s.70(2) Cr.P.C, if accused
is already on bail.
17. The Magistrate in such a situation cannot keep the NBWs alive, as
the purpose behind issuing NBWs no longer survive, as soon as the accused
appears or is produced before the Magistrate.
18. The NBWs may be stayed in a situation where the accused has
appeared through VC (Video Conferencing) to give the accused an
opportunity to appear before the court, but if the accused is physically
present before the court, then the very basis/grounds on which NBWs are
issued goes away.
19. Similarly, if an accused upon the execution of NBWs is arrested and
produced before the Magistrate by police official, the Magistrate cannot at
that stage stay the NBWs, as the purpose to issue NBWs come to an end as
soon as the accused is produced before the court.
20. In the present case, in the warrants issued by the Ld. Trial Court it is
mentioned that the accused (revisionist No.2 and 3) be arrested and be
produced before the court. Once the accused are physically present before
the court, the direction in NBWs that the accused be produced before the
court, stands satisfied.
21. Accordingly, it is held that the Ld. Magistrate committed an error,
when despite the physical presence of the accused persons (revisionist No.2
and 3) before the court, the Ld. Magistrate stayed the NBWs till the next
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CR No.247/2024
M/s N Square Hospitality LLP Vs.State of
NCT of Delhi & Anr.
Page 7 of 7
date of hearing. In the opinion of this court the Ld. Magistrate in such a
situation may have taken the accused into custody OR may have admitted
the accused persons to bail and release them upon furnishing bonds OR if
found proper, may have cancelled the NBWs under s.70(1) Cr.P.C, if
accused were already on bail.
Final Order:
22. In view of the aforesaid discussion, the present revision petition is
allowed and the impugned order dated 25.7.2024 is set aside only as far as
it relates to the disposal of application of the accused persons (revisionists
No.2 and 3) for cancellation of warrants. The Ld. Trial Court is directed to
decide the said application afresh as per law. Revisionists are directed to be
present in person before the Ld. Trial Court on the next date of hearing i.e.
29.03.2025. Till 29.03.2025, the warrants issued by the Ld. Trial Court shall
remain stayed.
23. It is made clear that in case revisionist No. 2 and 3 fail to appear
before the Ld. Trial Court on the next date, then it may proceed against
them under section 70 Cr.P.C.
24. Revision file be consigned to Record Room.
25. TCR be sent back alongwith copy of this judgment.
Announced in the open Court
on 28th January 2025
(Saurabh Partap Singh Laler)
Special Judge (NDPS Act)
Shahdara, Karkardooma Courts
Delhi/28.01.2025
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