Delhi District Court
Nakul Ahluwalia vs State on 5 January, 2021
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 342/2020
Nakul Ahluwalia,
w/o Sh. Ashwani Ahluwalia,
R/o D-25, Anand Niketan,
New Delhi-110021. ....Revisionist.
Versus
1. State,
Govt. of NCT of Delhi.
2. Sanjeev Solanki,
S/o Sh. Raj Kumar Solanki,
R/o Flat No. 410, Baroda House Apartment,
Sector-10, Dwarka,
New Delhi. .....Respondents.
Date of Institution : 11.11.2020.
Date of Arguments : 05.01.2021.
Date of Pronouncement : 05.01.2021.
ORDER
The present is a revision u/s 397/399 Cr.P.C filed CR No. 342/20 (Parveen Singh) Page No. 1 of 9 PRAVEEN Digitally signed by ASJ-03/NDD/PHC: 29.02.2020 PRAVEEN SINGH SINGH Date: 2021.01.05 18:24:09 +05'30' against orders dated 13.07.2020 and 15.07.2020 passed by the court of Ld. MM, PHC whereby the order dated 25.05.2020 passed by Duty MM was vacated and the revisionist was declared a proclaimed offender.
2. In the revision petition the factual background and the allegations against the accused/ revisionist are given which are not required to be discussed in this revision petition.
3. The facts giving rise to the present revision petition are, that an FIR no. 140/2019 was lodged by the respondent no. 2 against the revisionist for commission of offences u/s 420 and 34 IPC. After investigation, a charge sheet was filed against the revisionist. Thereafter, during the trial, a process u/s 82 Cr.P.C was issued against the revisionist. The revisionist moved an application for stay of process u/s 82 Cr.P.C. However, vide order dated 13.07.2020, the said application of the revisionist was dismissed and vide order dated 15.07.2020, the revisionist was declared a proclaimed offender. Hence, the present revision petition.
4. The impugned orders have been challenged on the grounds that the Ld. MM had passed the impugned orders without appreciating the material placed on record. Ld. MM failed to appreciate the provisions of Chapter 12, 14 and 15 of Cr.P.C and CR No. 342/20 PRAVEEN (Parveen Singh) Digitally signed by PRAVEEN SINGH Page No. 2 of 9 SINGH 29.02.2020 ASJ-03/NDD/PHC:
Date: 2021.01.05 18:27:30 +05'30' failed to consider the sections mentioned in those chapters. Ld. MM further failed to consider the notification passed by Hon'ble Supreme Court wherein it was observed, that no adverse order would be passed against any of accused. The main ground of challenging the impugned orders is that they are in violation of the provisions of section 82(4) Cr.P.C as the offences for which the petitioner is sought to be prosecuted and punished do not fall under the list of offences which are specified in section 82(4) Cr.P.C. Ld. MM failed to appreciate that the proceedings initiated by the Ld. MM u/s 82 Cr.P.C are not in accordance with statue. The process server was directed to affix summons on the last known address of the accused persons but the proceedings were carried out while affixing the summons at Anand Niketan Club and locked colony gate, which is far from the petitioner's house. It is further submitted that various orders have been passed by Hon'ble High Court of Delhi in which subordinate courts were directed not to entertain any of the regular matter except the matters of urgent nature such as bail, interim order etc. However, what kind of urgency was found by the Ld. MM that the impugned orders were passed in haste. It is further submitted that IO has not filed any urgent application requesting ld. MM to declare the petitioner a proclaimed offender. Ld. MM failed to CR No. 342/20 (Parveen Singh) PRAVEEN Digitally signed by PRAVEEN SINGH Page No. 3 of 9 ASJ-03/NDD/PHC: 29.02.2020 SINGH Date: 2021.01.05 18:27:09 +05'30' appreciate that on 13.07.2020, the revisionist and his counsel had appeared through VC. Despite appearance of the accused, Ld. MM had vacated the order dated 25.05.2020. It is further submitted that ld. MM has not recorded subjective satisfaction in the impugned order which is necessary for issuing the process u/s 82 Cr.P.C. In this regard, reliance has been placed on the judgment passed by Hon'ble High Court of Jharkhand in Mohd. Rustum Alam @ Rustam v. the State of Jharkhand. It is further submitted that as per ordersheet dated 11.03.2020, the alleged process has been issued and it was returnable for 30.04.2020. However, ld. MM failed to appreciate that since 25.03.2020 till 05.05.2020, lockdown was declared and in that case, revisionist was not in a position to move any kind of application before the ld. Trial court for cancellation or stay of the proceedings. Ld. MM further failed to appreciate that as and when the revisionist was summoned by the IO, he duly replied the summons and joined the investigation. It is further submitted that the non bailable warrants issued against the petitioner were never served. Even the IO had never visited the house of the petitioner for serving NBWs and he had filed a false report alleging that the petitioner was avoiding service of NBWs. Ld. MM failed to appreciate the medical documents placed on record in which the CR No. 342/20 PRAVEEN (Parveen Singh) Digitally signed by PRAVEEN SINGH Page No. 4 of 9 SINGH 29.02.2020 ASJ-03/NDD/PHC:
Date: 2021.01.05 18:26:48 +05'30' revisionist was found corona infected as well as suspected. It is further submitted that the impugned orders have been passed in mechanical manner and are not legally sustainable.
5. I have heard ld. counsel for revisionist as well as ld. Addl. PP for State and ld. Counsel for respondent no. 2 and perused the record very carefully.
6. It has been contended by ld. Counsel for revisionist that first of all, the process u/s 82 Cr.P.C was not properly executed and with malafide intention, it was pasted not at the house of the revisionist but at the club of the society. He has further contended that when the revisionist was present before the court on 13.07.2020, the court could not have declared him to be a proclaimed offender and dismissed his application. He has further contended that as per the process u/s 82 Cr.P.C, the revisionist was to appear before the trial court on 30.04.2020. From 25.03.2020, a lockdown had ensued and therefore, the courts were not functioning and the revisionist could not have complied with the proclamation u/s 82 Cr.P.C and on the basis of that proclamation, the revisionist could not have been declared a proclaimed offender.
7. Per contra, ld. Counsel for respondent no. 2 has contended that the process u/s 82 Cr.P.C was rightly executed and CR No. 342/20 (Parveen Singh) Page No. 5 of 9 ASJ-03/NDD/PHC: 29.02.2020 PRAVEEN Digitally signed by PRAVEEN SINGH SINGH Date: 2021.01.05 18:26:24 +05'30' the revisionist, who had been avoiding the process of law, was rightly declared a proclaimed offender. He has further contended that the anticipatory bail application of the revisionist was dismissed by the Sessions Court, Patiala House and it was also dismissed by Hon'ble High Court of Delhi. Despite that, the revisionist had not surrendered before the trial court or before the IO which clearly shows that he was deliberately absconding and thus, was declared a proclaimed offender. He has further contended that in the garb of the present revision petition, the revisionist is not only seeking setting aside of the order dated 15.07.2020 but also seeking a bail / protection from arrest which is not permissible under the present revision petition.
8. Countering it, ld. Counsel for revisionist has submitted that he wants to place it on record that the revisionist had joined the investigation with the IO many times and therefore, he cannot be said to be absconding.
9. I have considered the rival submissions and perused the record very carefully.
10. Whatever the merits of the case, are not be considered by me in the present revision petition. The question before me is, whether, on the basis of a process u/s 82 Cr.P.C issued on CR No. 342/20 (Parveen Singh) Page No. 6 of 9 PRAVEEN Digitally signed by ASJ-03/NDD/PHC: 29.02.2020 PRAVEEN SINGH SINGH Date: 2021.01.05 18:26:07 +05'30' 11.03.2020 allegedly executed on 17.03.2020 and by virtue of which the revisionist was to appear before the trial court on 30.04.2020, the trial court could have declared the accused/ revisionist to be a proclaimed offender by finding that the accused had failed to comply with the proclamation?
11. The undisputed fact is, that as per the process u/s 82 Cr.P.C, on the basis of which the revisionist was declared a proclaimed offender vide order dated 15.07.2020, the revisionist was to appear before the trial court on 30.04.2020. It is further not disputed that on 25.03.2020, a nationwide lockdown was declared due to COVID-19 pandemic and on the appointed date i.e. 30.04.2020, the courts were not functioning. Therefore, even if the revisionist had wanted to comply with the process u/s 82 Cr.P.C, he could not have done so for the reasons beyond his control. It was firstly because of the fact, that there was a prohibition for him from stepping out of his house and secondly, even if he had managed to go out of his house and reach the court complex, he could not have marked his presence before the court as the courts were not functioning. Therefore, as the court was not holding any regular hearing on 30.04.2020, the process u/s 82 Cr.P.C could not have been complied by the revisionist by appearing before the court. That CR No. 342/20 (Parveen Singh) Page No. 7 of 9 PRAVEEN Digitally signed by ASJ-03/NDD/PHC: 29.02.2020 PRAVEEN SINGH SINGH Date: 2021.01.05 18:25:46 +05'30' being the case, on the basis of the execution of the said process, the be a proclaimed offender and it could not have found, that despite a proper execution of the process, the revisionist was deliberately concealing himself. Furthermore, when the normal functioning of the courts started, the revisionist had moved an application for stay of process u/s 82 Cr.P.C and even on 13.07.2020, when the said application was dismissed, the revisionist was present before the trial court through VC. If that be the case, the trial court could not have held that the revisionist was deliberately concealing himself or absconding because he was present before the trial court by the mode by which the court was being held. Therefore, I find that the order dated 15.07.2020 whereby the revisionist was declared a proclaimed offender cannot be sustained and the same is accordingly set aside.
12. However as regards the second prayer of revisionist, there is no ground before this court to issue any directions to the trial court to grant regular bail to the revisionist/ petitioner after duly considering the bail application, which according to the counsel for revisionist, he is likely to move. I say so because the revisionist shall always be at liberty to move a bail application and the trial court in its own discretion shall take a call on the said application CR No. 342/20 (Parveen Singh) Page No. 8 of 9 PRAVEEN Digitally signed by PRAVEEN SINGH ASJ-03/NDD/PHC: 29.02.2020 SINGH Date: 2021.01.05 18:25:29 +05'30' and the directions from this court for hearing the said bail application or deciding it either ways are not called for.
13. With the above observations, the revision petition is disposed of. File be consigned to record room. Copy of order be sent to the ld. Trial court with TCR.
PRAVEEN Digitally signed by PRAVEEN
SINGH
SINGH Date: 2021.01.05 18:25:09
+05'30'
Announced in open court (Parveen Singh)
today on 05.01.2021 ASJ-03, New Delhi Distt.,
(This order contains 09 pages Patiala House Court, Delhi.
and each page bears my signatures.)
CR No. 342/20 (Parveen Singh)
Page No. 9 of 9 ASJ-03/NDD/PHC: 29.02.2020