Rajasthan High Court - Jaipur
Rishabh Sethi vs State Of Raj And Anr on 8 March, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misccellaneous (Petition) No. 5767/2017
Rishabh Sethi S/o Shri Sushil Kumar Sethi, R/o M-231, Greater
Kailash Part Ii, New Delhi 110020.
----Petitioner
Versus
1. State Of Rajasthan Through PP.
2. Director General, Police Station Anti Corruption Bureau,
Jaipur, Raj.
---- Respondents
For Petitioner(s) : Mr. S.S. Hora.
Mr. Pradeep Gupta
For Respondent(s) : Mr. V.S. Godara, PP
Mr. Rajendra Prasad, AAG assisted by
Mr. M.S. Sharma.
Mr. Aashish Sharma.
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
Judgment reserved on : 26.02.2018
Judgment pronounced on :08/03/2018
BY THE COURT :
Heard learned counsel for the accused-petitioner as also learned Additional Advocate General appearing for the State.
This criminal misc. petition has been preferred on behalf of the accused-petitioner with the prayer to quash and set-aside the order dated 23.03.2017 passed by learned Special Judge (Sessions Court), Anti Corruption Act No.1, Jaipur, whereby accused-petitioner Rishabh Sethi was declared as proclaimed offender and the standing warrant of arrest was ordered to be issued against him in connection with FIR No.217/2016, registered at PS Anti Corruption Bureau, Jaipur for the offences under (2 of 15) [CRLMP-5767/2017] Sections 7, 12, 13(1)(d), 13(2) & 14 of the Prevention of Corruption Act, 1988 and Section 120-B IPC.
Further prayer was made to quash all the Proclamation proceedings including the order dated 31.01.2017, Standing Order of arrest, order declaring the petitioner as proclaimed offender and to quash and set-aside FIR No.159/2017, registered at PS Bani Park, Jaipur for the offence under Section 174A IPC.
Briefly stated, the arguments advanced by learned counsel for the petitioner are that as per provisions of Section 17 of the Prevention of Corruption Act, 1988 ('the Act') no police officer below the rank of Deputy Superintendent of Police or its equivalent rank should have investigated the offence punishable under this Act, whereas Circle Inspector Mr. Bharat Singh has conducted the investigation in the matter. On the basis of the statement recorded by said Bharat Singh, proclamation proceeding under Section 82 Cr.P.C. has been initiated against the petitioner, which is impermissible under the law. His further contention is that the petitioner should not have been declared as proclaimed offender by the learned court below as none of the offences alleged against him in FIR No.217/2016 have been mentioned in sub-section (4) of Section 82 Cr.P.C. It has also been contended that proclamation against the petitioner has not been published as per the mandatory requirements of Section 82(2)(i)
(c) Cr.P.C.
Learned counsel for the petitioner has placed reliance upon the following judgments to support his arguments :-
(3 of 15) [CRLMP-5767/2017]
(I)- Rahul Dutta Vs. State of Haryana, reported in
2011 SCC OnLine P&H 16868.
(II)- Satinder Singh Vs. The State of U.T., Chandigarh,
reported in 2010 SCC OnLine P&H 6551.
(III)- Sanjay Sarin Vs. State (Union Territory,
Chandigarh), reported in 2012 SCC OnLine P&H 22817.
(IV)- Indra Mani Pandey Vs. State of U.P., reported in 2012 SCC OnLine All 2857.
(V)- Rohit Kumar @ Raju Vs. State of NCT Delhi & Ors., reported in 2007(98) DRJ 714.
(VI)- Chokha alias Pukhraj Vs. State of Rajasthan, reported in 2005 SCC OnLine Raj 345.
(VII)- State Inspector of Police Vs. Surya Sankaram Karri, reported in (2006) 7 SCC 172.
(VIII)- H.N. Rishbud and Inder Singh Vs. State of Delhi, reported in (1955) 1 SCR 1150.
(IX)- H.S. Gotla Vs. State, reported in ILR 2001 KAR 2843.
(X)- Jeewan Kumar Raut & Anr. Vs. CBI, reported in (2009) 7 SCC 526.
Per contra, learned State counsel has vehemently opposed the prayer stating that the accused was involved in institutional systematic corruption activities. After conducting search and raid by Anti Corruption Bureau team, the accused-petitioner has left (4 of 15) [CRLMP-5767/2017] the country and has not returned back as per the reports received from Intelligence Bureau, Ministry of Home Affairs, Government of India. Look out circular has also been issued against him, duration of which has been extended upto 13.11.2018. Learned State counsel submits that the proceedings initiated against the accused-petitioner declaring him proclaimed offender and lodging the FIR against him for the offence under Section 174A IPC cannot be quashed and set-aside unless the accused records his presence before the court concerned. He has further stated that as per Notification dated 10.02.1978 issued by Home (Gr.V) Department, Government of Rajasthan, the State Government has authorised all the police inspectors posted in ACB to investigate and arrest the accused-persons without warrant. Hence, the contention raised by counsel for the accused-petitioner in this regard is not tenable. A copy of the said Notification dated 10.02.1978 has been placed for perusal.
Reliance has also been placed by State counsel upon judgment passed by the Hon'ble Supreme Court in State of Punjab vs. Harnek Singh - Appeal (Crl.) No.801/1999 decided on 15.02.2002.
Learned State counsel has also drawn attention of this Court in this regard to first proviso to Section 17 of the Act. It has also been contended by him that since the warrant could not be executed, the objection raised by the opposite side in this regard is of no relevance.
It has also been contended by learned State counsel that all the mandatory requirements contained in Section 82 Cr.P.C. were (5 of 15) [CRLMP-5767/2017] complied with while declaring the accused-petitioner as proclaimed offender. The proclamation was also published in the daily news-paper circulating in the area for wide publicity. The accused-petitioner has been made aware of the proceedings which have been initiated against him, thus, the object of publication of proclamation has been sufficiently achieved. So the accused- petitioner is not justifiable in raising the technical pleas in this regard.
Per contra, learned counsel for the petitioner has stated that the accused is not out of the country. This fact is well established by the Vakalatnama notarized in India itself. Various applications filed on behalf of the accused-petitioner at different point of time also show his presence in the country.
I have given thoughtful consideration to the arguments advanced by the rival sides.
True it is that as per sub-section (c) of Section 17 of the Act, a Deputy Superintendent of Police or an officer of equivalent rank only is authorised to investigate any offence punishable under the said Act, but this condition applies in the case of effecting arrest of the accused without a warrant being issued against him. In the case in hand, there is no dispute about the fact that the warrant under Section 37 Cr.P.C. has been issued against the accused- petitioner, thus, the objection raised by learned counsel for the accused-petitioner regarding incompetence of police inspector Mr. Bharat Singh for effecting arrest of the accused-petitioner does not appear to be tenable. This inference is further fortified by Notification dated 10.02.1978, whereby the Home (Gr.V) (6 of 15) [CRLMP-5767/2017] Department, Government of Rajasthan has authorised the police inspectors posted in ACB to effect arrest of the accused for the offences under the said Act even without warrant. Though this notification was issued under the old Prevention of Corruption Act, 1947, but it still holds good in view of Section 30 of the Act, whereby "Repeal and saving" clause have been enacted. The plea raised by learned State counsel that the objection raised by learned counsel for the accused-petitioner is of no relevance in view of the fact that in fact, arrest could not have been effected, also sounds logical.
In view of above, this limb of arguments raised by learned counsel for the accused-petitioner is not found of any assistance to the accused-petitioner.
In so far as the arguments raised by learned counsel for the petitioner that since the offences under the Prevention of Corruption Act have not been enumerated in sub-section (4) of Section 82 Cr.P.C., therefore, petitioner could not have been declared a proclaimed offender under the aforesaid section, learned State counsel could not successfully meet this argument.
It will be proper to reproduce Section 82 Cr.P.C., which is as below :-
"Section 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 specific 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 (7 of 15) [CRLMP-5767/2017] 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. [(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
[(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub- section (1)]."
On perusal, it is obvious that no reference has been made to the offences under the Prevention of Corruption Act in sub-section (4) of Section 82 Cr.P.C., and also of the offence under Section 120-B IPC. Unless a person is charged with the offences as mentioned in sub-section (4) of Section 82 Cr.P.C. and he fails to appear at specified place and time required by the proclamation issued against him, the Court may not pronounce him as a proclaimed offender and make a declaration to that effect.
In Rahul Dutta Vs. State of Haryana (supra), relied upon by learned counsel for the petitioner, Punjab and Haryana High Court has observed as under :-
"17. The offences mentioned in Section 82(4) Cr.P.C. are of recurring nature. All the persons, who are absconding or concealing themselves to evade execution of warrants of (8 of 15) [CRLMP-5767/2017] arrest, could be proclaimed persons but they could be declared a "proclaimed offender" only under the provisions of the IPC which are mentioned in Section 82(4) Cr.P.C. There is stark distinction between a proclaimed person and a proclaimed offender and for that reason, there is a difference of punishment provided under Section 174-A IPC as it provides imprisonment which may extend upto three years or with fine or with both regarding a person who has been proclaimed in terms of Section 82(1) Cr.P.C. and the imprisonment which may extend upto seven years and also with fine in respect of a person who is declared a "proclaimed offender" under Section 82(4) Cr.P.C.
It has been further held that :-
"20. Thus, in view of the aforesaid discussion, I am of the considered opinion that the terms "proclaimed person" and "proclaimed offender" have different connotations. A person who is evading the execution of warrants of arrest issued under the particular Sections of the IPC which are mentioned in Section 82(4) Cr.P.C., can only be declared to be a proclaimed offender and the persons under the other provisions of the IPC and the laws, can be declared to be a proclaimed person in terms of Section 82(1) Cr.P.C."
In Satinder Singh Vs. The State of U.T., Chandigarh (supra), Punjab & Haryana High Court has also observed as under :-
"4. The only contention raised by learned counsel for the petitioner is that the Magistrate could not have declared the petitioner as proclaimed offender as he is not accused of any of offences specified under sub section 4 of Section 82 Cr.P.C. and as such he could be declared proclaimed offender. So far as the order declaring the petitioner otherwise as proclaimed offender is concerned, the same is in contravention to sub section 4 Section 82 Cr.P.C and thus liable to be quashed."
Again in Sanjay Sarin Vs. State (Union Territory, Chandigarh) (supra), Punjab & Haryana High Court has observed as under :-
"10. A simultaneous reading of section 82 Cr.P.C. and 174A IPC would clearly point to the situation where the persons against whom proclamation is issued under section 82(1) Cr.P.C. would be divided into two categories. The first category would be of the persons who are accused of an offence other than the one mentioned in section 82(4) Cr.P.C. and the second category of the persons accused of an offence mentioned in section 82(4) Cr.P.C. For these two categories of persons, punishment is differently provided by section 174A IPC.
11. The enquiry, about which learned counsel for the complainant has submitted, is not an enquiry to be made in (9 of 15) [CRLMP-5767/2017] case of a person accused of an offence punishable under the sections of Indian Penal Code mentioned in sub section (4) of section 82 Cr.P.C. after declaring him a proclaimed offender. This enquiry is to be made in respect of the persons accused of those offences before declaring them proclaimed offenders. This is an enquiry which precedes the declaration of a person accused of an offence under the afoersaid sections a proclaimed offender. A fine distinction has been made in Rahul Dutta's case (supra) between the aforesaid two categories by giving them the names "proclaimed persons" and "proclaimed offenders". In these circumstances, although the impugned order declaring the petitioner a proclaimed offender cannot be sustained, however, he is a proclaimed person against whom proclamation stands published and he is liable to be proceeded under section 83 Cr.P.c. by way of attachment of his property as also under section 174A IPC. The petition is allowed in the above terms."
In view of above, this Court is of the considered opinion that as no offence enumerated under sub-section (4) of Section 82 Cr.P.C. was alleged against the accused-petitioner and FIR No.217/2016 was not lodged against him for any of such offences, the proceeding for declaring the accused-petitioner as proclaimed offender could not have been initiated. The order passed by the learned court below to this effect cannot be sustained in the eye of law.
However, since the offence of Section 120-B IPC as also the offences under Sections 7, 12, 13(1)(d), 13(2) & 14 of the Prevention of Corruption Act, 1988 have been alleged against the accused-petitioner in FIR no.217/2016, he can at the most be termed as proclaimed person, and not a proclaimed offender.
But it is pertinent to note that for this purpose also the mandatory requirements of proper publication of proclamation declaring the accused-petitioner absconder needs to be followed. Sub-section (2) of Section 82 Cr.P.C. is relevant in this regard, which is as follows :-
"Section 82. Proclamation for person absconding.-
(10 of 15) [CRLMP-5767/2017] (1) ...................................................................................................... (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.
............................................................................................................" On perusal of the above provision, it appears that the mode of publishing the copy of proclamation in daily news-paper circulating in the place in which such person ordinarily resides is only additional and may be adopted at the option of the Court concerned. But so far as the modes mentioned in sub-clause (i) of sub-section (2) of Section 82 Cr.P.C. are concerned, they appear to be mandatory. There is no dispute on this point that no copy of proclamation was affixed to some conspicuous part of the court house as required under sub-clause (c) of Section 82(2)(i) Cr.P.C.
The order impugned dated 23.03.2017 of learned court below also does not speak about the fact that any such notice of proclamation was ever affixed on conspicuous part of the court house. Adopting the additional mode of publication of the proclamation in daily news-paper cannot be considered to be a compliance of the mandatory provision of affixing the copy of proclamation in conspicuous part of the court house.
In Indra Mani Pandey Vs. State of U.P. (supra), it has been observed as under :-
(11 of 15) [CRLMP-5767/2017] "The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself. Warrant of attachment will be preceded by an order of proclamation. The expression "reason to believe" occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself or is avoiding the process of the court. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had "absconded" or "concealed himself." The three clauses (a), (b), and (c) of sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of sub-section (2) is optional; it is not an alternative to clause (1). The latter clause is mandatory." In Rohit Kumar @ Raju Vs. State of NCT Delhi (supra), it has been observed as follows :-
"18. The expression 'reason to believe' occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term "absconded"
is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had "absconded" or "concealed himself."
18. The three clauses (a), (b), and (c) of sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory."
Relying upon the various judgments, Co-ordinate Bench of this Court in Chokha alias Pukhraj Vs. State of Rajasthan (supra) has observed as under :-
"11. The salutary provisions of proclamation under Section 82 of the new Code have been enacted to protect an unaware person and to give notice to him that he is wanted in the crime to enable him to surrender to custody. Section 82 of the new Code lays down conditions and the manner in which the proclamation has to be published, which includes, inter alia, affixation of proclamation at some conspicuous place of the house and homestead of accused, publicly reading the same at some conspicuous place of the town or village, as also at the notice-board of the court-house."
(12 of 15) [CRLMP-5767/2017] In Devendra Singh Negi alias Debu Vs. State of U.P., reported in 1994 Cri LJ 1783, the Allahabad High Court has observed as under :-
"The words "has absconded or is concealing himself so that such warrant cannot be executed" in Section 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 Section 82 are mandatory and are to be construed strictly. Section 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."
In view of above legal propositions, it is crystallized that sub-clause (i) of sub-section (2) of Section 82 Cr.P.C. are to be mandatorily followed, which are conjuctive and not disjunctive.
Since no report was made in the matter in hand about affixation of copy of proclamation in conspicuous part of the court house, sub-clause (c) of Section 82 (2)(i) Cr.P.C. has not been complied with. Even the court below has not observed in its order dated 23.03.2017 that such affixation of the copy of proclamation has been made. In view of it, the statement which is required to be made in writing under sub-section (3) of Section 82 Cr.P.C. by the concerned court issuing the proclamation cannot be considered as the conclusive evidence that the requirements of this section have been complied with and that the proclamation was published. It appears that the impugned order dated 23.03.2017 has been passed in cursory manner.
As the mandatory provision of Section 82(2)(i)(c) Cr.P.C. has not been complied with in the case in hand, the accused- petitioner cannot be termed as even the proclaimed person in (13 of 15) [CRLMP-5767/2017] absence of compliance of mandatory provisions.
Learned State counsel has argued that without appearing before the concerned court, the accused-petitioner cannot assail the order impugned dated 23.03.2017. In this regard, he has placed reliance upon the judgment passed in Ramkrishan @ Kishan Lal Vs. State of Rajasthan - S.B. Criminal Misc. Petition No.2964/2013, decided on 28.11.2013.
Per contra, learned counsel for the accused-petitioner has contended that in all the aforementioned judgments, the petition filed under Section 482 Cr.P.C. was allowed without requiring the presence of the accused in view of the fact that the mandatory provisions of Section 82(2)(i) were not complied with.
On perusal of judgment in Ramkrishan @ Kishan Lal vs. State of Rajasthan (supra), it appears that the issue has neither been specifically argued nor considered by the Co-ordinate Bench of this Court on the lines that the compliance of Section 82(2)(i) Cr.P.C. has been made or not. On the contrary, in the case in hand, this point has been specifically argued by both the sides and it is found that the mandatory provisions have not been complied with. In this situation, the judgment passed in Ramkrishan's case is of no assistance to the State.
Learned counsel for the State has argued that the instant petition filed under Section 482 Cr.P.C. cannot be allowed on mere non-compliance of the technicalities, this can be done only to secure the ends of justice. This aspect is completely missing in the matter in hand.
(14 of 15) [CRLMP-5767/2017] I am not convincing with the arguments advanced by learned counsel for the State. The inherent powers of the Court can also be exercised to prevent the abuse of process of any Court besides the object to secure the ends of justice. If the petitioner is declared as proclaimed offender despite the absence of mandatory provisions of law as discussed above, it will certainly be an abuse of process of Court. In such circumstance, the inherent power under Section 482 Cr.P.C. needs to be exercised.
Learned counsel for the petitioner has vehemently argued that FIR No.159/2017 came to be registered against the accused- petitioner for the offence under Section 174A IPC on the ground that despite publication of proclamation under Section 82 Cr.P.C. the accused has not appeared at the specified place and time. Counsel submits that since the very basis of this FIR falls flat on the ground on account of non-compliance of mandatory provision of Section 82(2)(i) Cr.P.C., the aforesaid FIR is essentially required to be quashed and set-aside.
I am in agreement with the arguments advanced by learned counsel for the petitioner. Very basis of lodging FIR No.159/2017 for the offence under Section 174A IPC is non-appearance of the accused-petitioner in response to the proclamation under Section 82 Cr.P.C. But the aforesaid proclamation under Section 82 Cr.P.C. is not found to be published as per the legal requirements. Therefore, no ground exists against the accused-petitioner to lodge the FIR for the offence under Section 174A IPC.
In view of above, the misc. petition is partly allowed to the extent that the order dated 23.03.2017 passed by the learned (15 of 15) [CRLMP-5767/2017] Special Judge (Sessions Court), Anti Corruption Act No.1, Jaipur in connection with FIR No.217/2016, registered at PS Anti Corruption Bureau, Jaipur is quashed and set-aside. Consequently, the order declaring the accused-petitioner as proclaimed offender and FIR No.159/2017, registered at PS Bani Park, Jaipur for the offence under Section 174A IPC are quashed and set-aside.
(DEEPAK MAHESHWARI)J. Rm/-