Delhi District Court
Rajeev Nag vs The State on 21 October, 2021
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IN THE COURT OF MS. NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-EAST DISTRCT: SAKET COURTS: NEW DELHI
C.R. No.64/2021
Rajeev Nag
S/o Sh. J.N. Nag
R/o Near SSB Camp
Near Bindraban
Tehsil Palampur, District Kangra
Himachal Pradesh
..... Revisionist/Accused
Versus
The State
Govt. of N.C.T. Of Delhi
..... Respondent
Criminal Revision Petition U/S.397 Cr.P.C. Against
The Order Dated 01.07.2017
Date of Institution: 04.03.2021
Date of Decision: 21.10.2021
ORDER
1. Revision petition under Section 397 Cr.PC has been filed against order dated 01.07.2017 vide which the revisionist has been declared as a Proclaimed Offender.
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2. Facts in brief are that FIR No.400/2014 under Sections 420/467/471/ 120B/468 IPC PS Lajpat Nagar was registered against the revisionist on the complaint of Late Sh. Deep Chand. The revisionist claimed that he had been wrongly implicated in this case. However, he joined the investigations and also approached the Investigation Officer (IO) for the purpose. The Agreement to Sell which was in question in the FIR was submitted and there was nothing in his possession to be recovered by the IO.
3. During the investigations, SI Amit Dutt, IO moved an application that the revisionist was required in the case FIR but he was absconding and a request was made for initiating proclaimed proceedings under Section 82 Cr.P.C. against him. Accordingly, process under Section 82 Cr.PC was directed to be issued vide order dated 07.02.2017, which was duly executed. However, before the statement of process Server could be recorded and formal order of proclamation be made, learned counsel on behalf of the applicant/accused moved an application for stay of the proceedings under Section 82 Cr.PC as noted in the ordersheet dated 29.06.2016. However, the revisionist failed to appear as being not available. IO along with HC Amzad Ali was accordingly summoned for 07.07.2016.
4. The revisionist failed to appear on 06.06.2016, 29.06.2016, 09.07.2016 and 16.07.2016 and his application for stay was dismissed vide order dated 20.07.2016.
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5. On 17.11.2016, IO SI Amit Dutt filed reply to the application of applicant/accused for dropping the proceedings under Section 82 Cr.PC.
Learned counsel for the applicant/accused submitted that applicant/accused is ready to join the investigation and the proceedings under Section 82 Cr.PC may be disposed off. Learned Trial Court directed the applicant/accused to join the investigation on 18.11.2016 and held: "Hence, purpose of issuance of proceedings under Section 82 Cr.PC is served and accordingly proceedings under Section 82 Cr.PC stand disposed off." In the meanwhile, anticipatory bail application of the revisionist was dismissed by the Hon'ble High Court of Delhi vide Order dated 19.10.2016.
6. The Revisionist again failed to join the investigations and on 21.03.2017 IO moved a fresh application for issuance of fresh process under Section 82 Cr.PC. The process under Section 82 Cr.PC was duly executed and publication in the Newspaper was also carried out. Thereafter, an application dated 01.06.2017 for cancellation of NBWs and the proceedings under Section 82 Cr.PC was filed by the revisionist. The matter was listed for 07.06.2017 wherein Ms. Jyoti learned counsel for the revisionist appeared. Learned MM observed that anticipatory bail application of the revisionist has already been dismissed by the Hon'ble High Court of Delhi on 19.10.2016 and till date the revisionist has failed to join the investigation and is still absconding. In view of the above, the application for cancellation of NBWs and for dropping of the proceedings under Section 82 Cr.PC, was dismissed.
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7. On 01.07.2017, an application was moved by IO for declaring the revisionist/accused as proclaimed offender. Statement of ASI Jai Prakash, Process Server was recorded on 01.07.2017, who deposed that he had executed that process under Section 82 Cr.PC at the address of the revisionist near SSB Camp, Kangra, Himachal Pradesh and proved his statement recorded by the IO as Ex.CW1/A. DD entry regarding his visit to Kangra is proved as Ex.CW1/B. IO SI Amit Dutt deposed about having pasted the summons outside the court premises and publication of process in the newspaper namely "The Times of India", Chandigarh dated 12.04.2017 and "Dainik Jagran", Dharamshala dated 12.04.2017 against the revisionist and proved his report Ex.CW2/A. Ld. MM after considering the statements, declared the revisionist as Proclaimed Offender vide order dated 01.07.2017.
8. The revisionist has submitted in his revision petition that Ld. MM vide order dated 17.11.2016 disposed off the process under Section 82 Cr.PC. No fresh warrants have ever been issued against the revisionist. IO also never issued any Notice upon the revisionist for joining the investigations. A letter dated 20.01.2016 was given by the revisionist to the IO to give information and to call him as and when required to join the investigation. However, no Notice whatsoever was given to the revisionist upto 17.11.2016 to join the investigations in consonance of Section 41(a) of Cr.PC. In fact, the IO never moved any application for issuance of summons and NBW or any process to be served upon the revisionist to appear and to join the investigation.
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9. Hon'ble Supreme Court in Dawood Ibrahim Kaskar (2000) 10 SCC 438, AIR 1997 SC 2494 noted that the IO has to specifically mention every fact thereof to make the Hon'ble Court aware to entertain his request in the application for issuance of NBW. No such application has been filed by the IO giving complete name and address of the accused. Moreover, in the proceedings, it is nowhere mentioned that the statement of the neighbours were recorded nor any proper inquiry was conducted against him. Also, there is nothing to suggest the person against whom recourse to such process was intended to be taken was actually concealing himself so that such warrant cannot be executed.
10. The revisionist has also referred G. Sagar Suit Vs. State 2003 Law Suit (Del) 571, wherein it was observed that before publishing the written proclamation requiring the accused to appear under the provisions of Section 82 Cr.PC, there must be record of the reason thereof that the person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed. Similar were the observations of Hon'ble High Court in Rohit @ Raju Vs. State of NCT of Delhi 2007 Law Suit (Del) 1070.
11. It is submitted on behalf of the Revisionist that after dropping the Proclamation proceedings under Section 82 Cr.PC on 17.11.2016, there was no request for issuance of warrants and there was no reasons given for CR No.64/2021 Rajeev Nag Vs. The State Page 5 of 9 :: 6 ::
execution of the process. Furthermore, under Section 82(4) of Cr.PC a person can be declared as a Proclaimed Offender only in respect of the offences mentioned therein. Section 420 does not fall in the said category. The impugned order declaring the revisionist as a Proclaimed Offender be therefore, set aside.
12. The revision is supported by an application for Condonation of Delay wherein it is submitted that in the first week of January 2021 some persons came searching for the accused/revisionist claiming that he is the Proclaimed Offender. He immediately approached and came to know that he has been declared proclaimed offender. He consequently moved an application against the impugned order but withdrew his application on 23.02.2021 since it was without jurisdiction. It is claimed that the absence of revisionist/accused was not intentional or deliberate but for bonafide reasons. Hence, it is submitted that delay in filing the present revision may be allowed.
13. I have heard the arguments on behalf of the revisionist and have perused the record. My observations are as under:
14. Before considering the revision on merits, it may be mentioned to consider if the revisionist has been able to disclose sufficient reasons for condonation of delay. The impugned order which is challenged vide this revision is dated 01.07.2017, while the revision has been filed on 27.02.2021 i.e. after about 3½ years. The application for condonation of delay does not CR No.64/2021 Rajeev Nag Vs. The State Page 6 of 9 :: 7 ::
give any reason for not moving the revision within the period of limitation or thereafter.
15. The record shows that the revisionist had failed to join investigations despite directions of the Court and process under Section 82 was duly executed in May, 2016 but the Revisionist appeared in the Court and agreed to join the proceedings. Consequently, the process under Section 82 was dropped vide order dated 18.11.2016. However, the Revisionist again failed to join investigations and process under Section 82 was again executed for the second time and Proclamation was also issued in the Newspaper. At this stage the Revisionist moved an application dated 01.06.2017 for dropping the proceedings under Section 82 Cr.PC but he again absented himself from appearing in the court. However, he pursued his application for cancellation of NBWs and dropping of the proceedings under Section 82 Cr.PC through counsel who appeared on 01.06.2017 and 07.06.2017. It was specifically noted by the Ld. MM in his order-sheet dated 07.06.2017 that as per the report of the IO, anticipatory bail application of the revisionist had been dismissed by the Hon'ble High court of Delhi on 19.10.2016 and till date the accused had not joined investigation and was not found at his address and was absconding. The application of accused was accordingly dismissed and thereafter, statement of Process Server was recorded and revisionist was declared a Proclaimed Offender.
16. The process had already been executed in May 2017 at Kangra and CR No.64/2021 Rajeev Nag Vs. The State Page 7 of 9 :: 8 ::
Publication had also been effected in the Newspapers on 12.04.2017. The revisionist had moved an application for cancellation of NBWs and dropping of proceedings thereafter and had appeared in the court through counsel on 07.06.2017. His claim that he was not aware about the proceedings is not substantiated by the record which reflects that he was not only aware about the proceedings before the Ld MM but was pursuing his remedy for cancellation of process under Section 82 which was initiated not once but twice. There is no explanation whatsoever given by the Revisionist for having stopped his appearance and not joining the investigations. Rather, what may be gathered is that his Anticipatory Bail application got dismissed by the High Court and he thereafter became hesitant to join investigations before the I.O.
The conduct of the Revisionist has been contumacious in not joining the investigations and to avoid the proceedings despite being aware about it.
17. The revisionist in his application for condonation of delay also does not explain his absence since 2017 till 2021 when the revision has been filed. It is only merely mentioned that he became aware in 2021 when some persons claiming themselves to be police officials came to his house in search of him. From the submissions of the revisionist himself it is clear that he was not only aware of registration of FIR but also had knowledge of NBWs and execution of process under Section 82 Cr.PC twice against him. The revisionist has failed to disclose any reason whatsoever for condonation of delay of about 3½ years in filing of the present revision petition. There is no ground for condoning the delay. Hence, the application for condonation of delay is CR No.64/2021 Rajeev Nag Vs. The State Page 8 of 9 :: 9 ::
dismissed. Accordingly, the revision petition is also stands dismissed.
18. A copy of the order along with trial court record be sent to the learned trial court.
19. Revision file be consigned to Record Room.
Digitally signed by NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2021.10.21
KRISHNA 13:21:41 +0530
Announced in the open court (Neena Bansal Krishna)
today i.e. 21.10.2021 Principal District & Sessions Judge
South-East District,
Saket Courts, New Delhi.
CR No.64/2021
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