Delhi District Court
Bijay Madan vs State on 11 August, 2016
IN THE COURT OF MS. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) : SAKET: NEW
DELHI
CISCr. Rev.80342016
CNRDLST010001222016
Criminal Revision No. 38/16
ID No.: 02406R0070102016
Bijay Madan
S/o Shri K.K. Madan,
R/o H. No. 1018, Sector17 B,
Gurgaon122001.
Presently at: UAE
Through his wife and attorney
Ms. Sonal Madan ........ Petitioner
Versus
State .......Respondent
Instituted on: 20.02.2016 Judgment reserved on: 11.08.2016 Judgment pronounced on: 11.08.2016 J U D G M E N T At the outset, it is considered essential to dispose of the prayer made by the petitioner seeking condonation of delay in institution of the petition. Taking into account the fact that the liberty of an individual is involved, it is considered appropriate to dispose of the petition on merits, and not on technicalities, and, thus, the delay in Criminal Revision No. 38/16 Page 1 of 17 the institution of the petition is condoned.
This judgment shall also dispose of a petition instituted on 20.02.2016 by the petitioner Bijay Madan assailing the impugned order dated 29.06.2015 of the Ld. MM in FIR No. 717/13 dated 29.06.2015 whereby it was observed to the effect :
"FIR No. 717/13PS Malviya Nagar 29.06.2015 Present: Ld. APP for State.
IO Inspector Lokender Singh is present.
An application for request of declaring the accused Bijay Madan as Proclaimed Offender has been filed by IO.
IO submits that the investigation of the present matter was handed over to him in September, 2014 and since then despite NBW being obtained and other coercive processes being issued qua accused, he has not joined the investigation since September, 2014. The FIR was regisrtered in the year 2013. Statement of IO has been recorded separately.
It is clear from the contents of the application that the accused is absconding and evading his arrest. Hence he is declared Proclaimed Offender in the present matter.
Application stands accordingly disposed of . Copy of this order be given dasti to the IO." and as a consequence thereof, the petitioner was declared a proclaimed offender.
Vide the petition, the petitioner had initially made a prayer for setting aside the order dated 29.06.2015 in CC No. 63/1/13 also in which the counsel for the accused on 29.06.2015 had moved an application for appropriate directions which was dismissed as being Criminal Revision No. 38/16 Page 2 of 17 not maintainable, it having been observed to the effect that the complaint had been filed by the complainant (i.e. Shri R.P. Saluja) and the accused (Shri Bijay Madan i.e. the present petitioner) was absconding.
The said complaint was filed by the complainant Shri R.P. Saluja u/s. 200 of the Cr.P.C seeking registration of the FIR for the offences allegedly committed by the petitioner herein as accused thereof u/s. 420/506 of the IPC, 1860. The proceedings dated 29.07.2016 in the complaint case indicate that the proceedings of the complaint have been stayed u/s. 210 of the Cr.P.C in view of registration of FIR No. 717/13 PS Malviya Nagar u/s. 406/420 of the IPC, 1860. On the date 20.02.2016 itself, a statement was made by the Ld. Counsel for the petitioner seeking to withdraw the prayer made for setting aside of the order dated 29.06.2015 in CC No. 63/1/13 pending before the Ld. MM02 (South) and, furthermore, vide order dated 20.02.2016 in Crl. Revision No. 38/16, the said prayer was dismissed as withdrawn and Shri R.P. Saluja i.e. the complainant in CC No. 63/1/13 who was arrayed as respondent no. 2 in Crl. Revision No. 38/16 was directed to be deleted from the array of parties.
The requisitioned record in relation to the proceedings u/s. 82 and 83 of the Cr.P.C which was requisitioned vide order dated 10.08.2016 i.e. • the records received from the Ld. Court of the MM02 (South) in relation to FIR No. 717/13 PS Malviya Nagar; and • the order dated 29.06.2015 as detailed already hereinabove;
Criminal Revision No. 38/16 Page 3 of 17• statement dated 29.06.2015 of inspector Lokender Singh, the Investigating Officer of the case to the effect:
"I am IO in the present case. Several notices were issued against accused Mr. Bijay Madan S/o Shri K.K. Madan R/o H. No. 1018, Sector 17B, Gurgaon, Haryana. However, he failed to join the investigation and continuously and knowingly concealed his presence. Thereafter, NBW's were issued against him and proceedings u/s. 82 Cr.P.C were also initiated. One copy of proclamation was pasted outside the court room another copy of the proclaimation was got pasted outside the house of accused Mr. Bijay Madan one more copy of proclamation was got pasted in the colony of the accused. Thereafter, proceedings u/s. 83 Cr.P.C was got carried out.", • an application dated 29.06.2015 of the Investigating Officer to the Court of Ld. MM in FIR No. 717/13 PS Malviya Nagar u/s. 406/420/120 B of the IPC, 1860 submitting that the accused Bijay Madan had been continuously and knowingly concealing his presence and that he be declared a proclaimed offender in as much as notices were issued to him and, thereafter, non bailable warrants were taken but that the accused was continuously and knowingly concealing his presence and proceedings u/s. 82 and 83 of the Cr.P.C were initiated against him and the copy of the declaration u/s. 82 of the Cr.P.C was Criminal Revision No. 38/16 Page 4 of 17 pasted outside the house of Mr. Bijay Madan and another copy was pasted outside the court room and, thereafter, proceedings were also initiated against him as per law;
• statement of the father of the petitioner i.e. Shri K.K. Madan to the effect that the relations between him and his son Bijay Madan were strained and that Bijay Madan did not have any movable or immovable property in his name at the address House No. 1018, Sector17 B, Gurgaon, Haryana and that the said house and the articles within the same belong to Shri K.K. Madan, father of Bijay Madan.
• the application dated 30.04.2015 of the Investigating Officer in FIR No. 717/13 PS Malviya Nagar u/s. 406/420/120 B of the IPC, 1860 which is a request for proceedings u/s. 82 and 83 of the Cr.P.C to be initiated against Mr. Bijay Madan submitting that he has knowingly been concealing his presence and that he is not found at his given address and local enquiries were carried out and an LOC has also been opened against him. Vide order dated 30.04.2015 of the Link MM, it has been observed to the effect :
"Pre: IO in person along with case file.
Issued 82/83 Cr.P.C against the accused person for 22.06.2015."
The proceedings dated 25.03.2015 have also been received which indicate that on an application for issuance of NBWs received against Bijay Madan NBWs were ordered to be issued against him through the Investigating Officer along with DD entry of Criminal Revision No. 38/16 Page 5 of 17 arrival and departure to be filed and it was further directed that statements of two independent witnesses be also recorded. A report dated 25.03.2015 of Inspector Lokender Singh is also on the record and so is another request dated 24.03.2015 of the Investigating Officer seeking issuance of NBWs against the accused submitting to the effect that he had not cooperated in the investigation and was deliberately not joining the investigation.
Vide the application dated 24.03.2015, it was, inter alia, submitted to the effect that in order to verify the claim of the complainant Shri R.P. Saluja that Mr. Bijay Madan claiming himself to be empowered to sell the property bearing No. S185, Panchsheel Park, New Delhi measuring 500 sq. ys., had approached the complainant for selling the property in the month of March, 2011 at their former office at B23, Shivalik, Malviya Nagar, New Delhi and had made the complainant believe that he, Shri Bijay Madan, had all authority from the actual owners Smt. M.M. Marfatia, Mrs. Roshan Chakravorty, Mrs. Yoteen Camron and Mr. Noshirwan Marfatia and that he would hand over the vacant and physical possession of the said property to the complainant by getting the same vacated from the tenants as he had taken their consent and that the accused Bijay Madan had represented that he would get the property converted into freehold and would also obtain the NOC from the Archeological Survey of India and part of the property would be handed over to him after signing the execution and registration of sale deed by the owners in favour of the complainant's company or any nominee and that Mr. Criminal Revision No. 38/16 Page 6 of 17 Bijay Madan had also represented that the said property was free from all kinds of encumbrances and that the complainant had consequentially made a payment of Rs. 3,50,000,00/ to the accused Bijay Madan believing what he had stated but learnt that the owners had a dispute with the accused and they had issued a public notice dated 04.03.2011 which had skipped the complainant's attention at the relevant time stating that the owners had not authorised anyone to negotiate the sale and enter into any agreement to sell the property or any portion thereof in relation to which there were civil litigations also with Mrs. Yoteen Cameron and others that had been filed which had not been disclosed by Mr. Bijay Madan and it has thus been submitted by the complainant that the accused had knowingly misrepresented and had cheated him and his son who are directors of M/s. Pansheela Constructions Pvt. Ltd. as per the report dated 25.03.2015 of the Investigating Officer. During the course of investigation, the details of the bank accounts along with account opening form, specimen signatures, card and bank statements were collected and certified copies of court documents with the civil litigations between Bijay Madan and Mrs. Yoteen Cameroon and others were also sought from Mr. Bijay Madan and original receipts bearing signatures of Bijay Madan dated 15.04.11 for a sum of Rs. 2.50 crores were also seized from the complainant Shri R.P. Saluja and the complainant claimed that this receipt bore the signatures of Mr. Bijay Madan and he has received the said amount in cash and that to verify the claim of the complainant, notice was sent to Bijay Madan to appear in person for Criminal Revision No. 38/16 Page 7 of 17 submission of his specimen signatures and examination in Court but that Mr. Bijay Madan had not cooperated in the investigation and had deliberately not joined the investigation despite being informed to join the investigation personally several times and had also been requested to appear in person in Court for submission of his specimen signatures several times but Mr. Bijay Madan who knowingly concealed his presence and had not appeared despite several opportunities given on phone as well as through notices which were duly received by his wife.
It has been submitted on behalf of the petitioner that the impugned order dated 29.06.2015 of the Ld. Trial Court in FIR No. 717/13 PS Malviya Nagar declaring him a proclaimed offender was invalid and illegal and had not taken into account the factum that on the very same date i.e. 29.06.2015 the accused i.e. the present petitioner was being declared a proclaimed offender in FIR No. 717/13 PS Malviya Nagar by the same Ld. Court in CC No. 63/1/13. The very same Ld. Trial Court had declined an application filed on behalf of this very accused as the accused therein vide which the accused had sought appropriate directions and that that application was signed by Mrs. Sonal Madan, wife of Shri Bijay Madan who through Ms. Sanjeev Kumar Arora and Shri L.N. Rao, Advocates through which it was sought to be submitted on behalf of the accused as was already submitted vide an email of the accused to his wife to be submitted to the Ld. Trial Court to the effect that he was not in the country and was on a contractual assignment in the United Arab Criminal Revision No. 38/16 Page 8 of 17 Emirates and as per the terms of the contract can leave only once the assignment was completed and that the completion date of the assignment was 20.12.2015 and that he, thus, requested the Court to grant time till then and he also submitted vide the said mail to his wife to be put up the same before the Court which was also so put up before the Ld. Trial Court and that as per the prevalent system in that country, his travel documents were held by the contracting company and would be returned after the last date of the assignment and the accused also submitted that he would be available on the first available opportunity and had nothing to hide and that he was a law abiding citizen of the country. It was submitted further on behalf of the petitioner that vide the application that had been filed by the petitioner seeking appropriate directions which was declined vide the order dated 29.06.2015 in CC No. 63/1/13 the proceedings of which have since been stayed u/s. 210 of the Cr.P.C. Vide order dated 29.07.2016, the accused i.e. the present petitioner had specifically averred that he had also participated at the police station Malviya Nagar in the proceedings and had given his written statement during the inquiry of the complaint made by the complainant prior to the registration of the FIR and that he had also informed that he would be travelling abroad and it would be difficult for him to be present in person and the accused also gave his email ID to the Investigating Officer who had stated that he would contact the accused via mail, if needed and that the earning from the contractual obligations was the main source of livelihood of the applicant and his family and that it Criminal Revision No. 38/16 Page 9 of 17 was not feasible for him to be present at that moment on the date 26.06.2015 before the Ld. Court but would put in appearance before the court immediately after 20.12.2015 and thus sought directions from the court the SHO / IO to fix another date for his appearance being a date after 20.12.2015 in the interest of justice.
It was thus submitted that the application that was filed on behalf of the petitioner on the date 29.06.2015 in CC No.63/1/13 PS Malviya Nagar in relation to the allegations on which the complaint already an FIR No.717/13 stood registered on 30.12.2013 suffice to show that the petitioner was not concealing himself and thus had barely sought time to put in appearance before the Ld. Trial Court on the date after 20.12.2015 and that the accused could thus not have been declared a proclaimed offender vide the impugned order dated 29.06.2015 in FIR No. 717/13 PS Malviya Nagar.
Reliance was placed on behalf of the petitioner on the verdict of the Hon'ble High Court in the case 'Rohit Kumar @ Raju V/s State of NCT of Delhi Anr.' 2007 [4] JCC 2924 to submit that the declaration issued U/s 82 and 83 of the Cr.P.C vide the same order dated 30.04.2015 of the Ld. Link MM was erroneous in law and was in contravention of the provisions of Section 83 (1) of Cr.P.C which mandate the issuance of the proclamation U/s 83 (1) of Cr.P.C for ordering the attachment of any property movable or immovable of the proclaimed person only after the issue of the proclamation of Section 82 (1) of Cr.P.C 1973 and after the court was satisified that the person in relation to whom the proclamation was to be issued was about to Criminal Revision No. 38/16 Page 10 of 17 dispose of whole or any part of his property from the local jurisdiction of the court and it was submitted on behalf of the petitioner that the only circumstances in which there can be a simultaneous issuance of the declaration U/s 82 and 83 of Cr.P.C, where the accused was about to dispose of whole or any part of his property or was about to remove whole or part of his property from the local jurisdiction of the court and it was thus submitted on behalf of the petitioner that the directions dated 29.06.2015 be set aside.
The said submissions has been vehemently opposed on behalf of the state and on behalf of the complainant submitting to the effect that the facts and circumstances of the case 'Rohit Kumar @ Raju V/s State of NCT of Delhi Anr.' 2007 [4] JCC 2924 were not in pari materia with the facts and circumstances of the instance case in as much the proclamation U/s 82 of the Cr.P.C in that case was not published 30 days before the date on which appearance of the accused in that case was called for by the court concerned and, thus, it was held that where the proclamation U/s 82 of the Cr.P.C by the trial court was against a mandatory provision of law and was invalid, consequential proclamation issued U/s 83 of the Cr.P.C was also void.
Undoubtedly, in the instance of the present case where the proclamation U/s 82 and 83 of the Cr.P.C have both been issued in terms of single order dated 30.04.2015, without there being any averments in the application dated 30.04.2015 made by the Investigating Officer to the effect that the accused was about to dispose of whole or any part of his property or was about to remove Criminal Revision No. 38/16 Page 11 of 17 whole or any part of this property from the local jurisdiction of this court, the requirements of the proviso to Section 83 (1) of the Cr.P.C were not fulfilled and thus the directions vide order dated 30.04.2015 of issuance of the proclamation U/s 83 of the Cr.P.C 1973 without proceedings adopted U/s 82 of the Cr.P.C declaring the accused as a proclaimed person, could not have been initiated and, thus, it is apparent that the order dated 30.04.2015 of the Ld. Link MM in FIR No.717/13 directing the issuance of proclamation U/s 83 of the Cr.P.C 1973 is invalid and is thus set aside.
As regards the application for issuance of the proclamation U/s 83 of the Cr.P.C, which indicates that the same was issued in terms of order dated 30.04.2015 of the Ld. Link MM had been issued on the date 22.06.2015 and thus the requisite time gap of a period of 30 days from the date of publication of the proclamation till the date of appearance had been adhered to. The issuance of the proclamation U/s 82 of the Cr.P.C vide in terms of order dated 30.04.2015 of the Ld. Link MM cannot however be faulted. The report of the Process Server on the said proclamation dated 10.05.2015 is to the effect that the proclamation had been affixed outside the house of the accused and the copy was affixed on the court notice board and persons nearby had also been informed by the proceedings and the statement of the father of the accused Sh. K.K. Madan had also been recorded dated 10.05.2015 to the effect that his son Bijay Madan used to stay out of India and that he, K.K. Madan would inform his son of the proceedings U/s 82 of the Cr.P.C Criminal Revision No. 38/16 Page 12 of 17 whenever he received a phone call from him.
A submission was made on behalf of the petitioner that whilst placing reliance on the provisions of Section 82 (4) of the Cr.P.C which reads to the effect that : "where a proclamation published under subsection (1) is in respect of the 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, pronounced him a proclaimed offender and make a declaration to that effect." to submit that as the offences punishable U/s 420 and 406 of the IPC were not specified in Section 82 (4) of the Cr.P.C, the accused could not be declared a proclaimed offender. It was submitted on behalf of the complainant and the State while placing reliance on the verdict of the Hon'ble High Court of Punjab and Haryana in the case of Smt. Deeksha Puri vs State of Haryana in CRM M359 of 2012, that the said submissions were misconceived and that it cannot be contended that if an offence is not specified U/s 82 (4) of the Cr.P.C as amended the same ceases to be an offence and that it cannot also be contended that the requisite proclamation for persons who are absconding in relation to offences other than those prescribed U/s 82 of the Cr.P.C cannot be issued in terms of Section 82 (1) of the Cr.P.C. The verdict of the Hon'ble High Court of Punjab and Haryana in the case of Smt. Deeksha Puri vs State of Haryana in CRM M359 of 2012 brings forth Criminal Revision No. 38/16 Page 13 of 17 categorically that if a person is alleged to be an offender under any other Section of the IPC of any other law i.e. other than those prescribed U/s 82 (4) of the Cr.P.C, he is liable to a punishment U/s 174 (A) Part I of the IPC which is a lesser punishment than that prescribed for the offence specified U/s 82 (4) of the Cr.P.C for which the offence is punishable in terms of Section 174 (A) Part II of the IPC and that Section 82 (4) of the Cr.P.C cannot be construed to hold that absconders not falling U/s 82 (4) of the Cr.P.C cannot be declared proclaimed offender and that they are not subjected to the penalties and liabilities enshrined in law and that the absconders not falling u/s 82 of the Cr.P.C are liable U/s 174 A Part 1 of the IPC and absconders U/s 82 (4) of the Cr.P.C are liable U/s 174 A Part II of the IPC after publication of proclamation and that it has been held by the said verdict of the Hon'ble High Court of Punjab & Haryana that the issuance of proclamation U/s 82 of the Cr.P.C incorporated by the amendment of Act No.25 of 2005 do not lay down that the persons accused of having committed offences mentioned U/s 82 (4) of the Cr.P.C can only be declared a proclaimed offender and that any person who has been declared a proclaimed person u/s 82 (1) of the Cr.P.C or u/s 82 (4) of the Cr.P.C will be at par for the purposes of all the liabilities and consequences attached to a person declared proclaimed offender.
In view of the verdict of the Hon'ble High Court of Punjab & Haryana referred to herein above in view of the provisions U/s 174 A of the IPC which provide for a separate sentence for non Criminal Revision No. 38/16 Page 14 of 17 appearance pursuant to a proclamation u/s 82 (1) of the Cr.P.C and the separate sentence for non compliance of directions u/s 82 (4) of the Cr.P.C itself, negate the submission that has been made on behalf of the petitioner that benefit of Section 406/420 of the IPC not falling within the ambit of Section 82 (4) of the Cr.P.C. No proceedings declaring the accused as a proclaimed offender could be initiated as a proclaimed person or proclaimed offender cannot be accepted in as much as in terms of Section 82 (4) of the Cr.P.C such an accused can be declared a proclaimed person.
It is, thus, essential to observe that the contention raised on behalf of the petitioner on the date 29.06.2015 that when the impugned order was pronounced, the petitioner/accused was represented and had in fact even sent an email to his wife to be put up before the Ld. Court of the MM02, South, Saket to submit that he would put in appearance after the date 20.12.2015 and was unable to put in appearance before due to contractual obligations, cannot be brushed aside, in as much as, though the accused did not put in appearance on the date 22.06.2015, the date of appearance required in terms of the proclamation U/s 82 of the Cr.P.C before the Ld. Court concerned, he was nevertheless represented by a counsel in CC No.63/1/13 through his wife on the very same date i.e. 29.06.2015 and had sought time to put in appearance till the same date after 20.12.2015. The very purpose of Section 82 of the Cr.P.C is to ensure the presence of a person against whom the criminal law has been invoked and the submission of the application on behalf of the Criminal Revision No. 38/16 Page 15 of 17 accused in CC No.63/1/13, the proceedings of which have also been stayed on 29.07.2016 and which could have been stayed even much earlier on registration of the FIR No.717/13, PS Malviya Nagar which was registered on 30.12.2013, bring forth the bona fides of the petitioner to put in appearance before the court. In these circumstances, where proceedings of CC No.63/1/13 in FIR No.717/13, PS Malviya Nagar both pending before the same trial court of the Ld. MM02, South on 29.06.2015 and the petitioner had sought time for appearance till a date after 20.12.2015, the declaration of the accused as a proclaimed offender in FIR No.717/13, PS Malviya Nagar was wholly unwarranted in as much as the provisions of Section 82 (4) of the Cr.P.C 1973 are not applicable in the instant case and was wholly unwarranted even if it is held that the declaration vide order dated 29.06.2015 to declare the petitioner as a proclaimed offender in terms of Section 82 (1) of the Cr.P.C was equally unwarranted.
In view thereof, the impugned order dated 29.06.2015 in FIR No.717/13, PS Malviya Nagar is set aside and the operation of any look out circular, if any, in relation to FIR No.717/13, PS Malviya Nagar U/s 420 / 406 IPC against the petitioner is also set aside.
The Criminal Revision Petition No. 38/2016 is, thus, allowed accordingly and the records thereof be consigned to the Record Room.
Copy of this order be send to the Ld. Trial Court to be placed on the records of FIR No.717/13, PS Malviya Nagar, the Criminal Revision No. 38/16 Page 16 of 17 records of which are tagged with the records of CC No. 63/1/13 in terms of order dated 29.07.2016 of the Ld. MM02 (South).
Announced in open Court today (ANU MALHOTRA)
on this 11th day of District & Sessions Judge (South)
August, 2016 Saket/New Delhi.
Criminal Revision No. 38/16 Page 17 of 17