Delhi District Court
Sushil Kumar Sehgal vs State on 5 August, 2023
Sushil Kumar Sehgal vs. State & Anr.
CNR No.: DLCT01-007407-2023
Crl. Revision No. 319/2023
05.08.2023
Present : Mr. Pritish Sabharwal, Advocate for the petitioner.
Mr. Ashok Kumar Bahl, Advocate for the
respondent No. 2.
ORDER
1. The petitioner challenged legality, propriety and correctness of the order dated 30.01.2023 whereby the Jurisdictional Magistrate declared the petitioner as 'proclaimed person'.
2. Facts preceding to the institution of the criminal revision petition are that on 12.06.2013, State Bank of India, Kashmere Gate Branch, Delhi (Hereinafter 'the bank') disbursed car loan of Rs. 11,90,000/- to the petitioner and on 20.06.2013, the bank disbursed another car loan of Rs. 13,00,000/- to the petitioner. However, the petitioner failed to clear the installments and shifted from his address without furnishing his latest address to the bank. The bank made a complaint to EOW, Mandir Marg on 10.04.2015. As instructed, the bank lodged complaints with PS Kashmere Gate on 11.04.2015 and 23.12.2015. As the jurisdictional police failed to take any action, the bank filed an application under Section 156 (3) Cr.P.C. before the Jurisdictional Magistrate. Pursuant to order dated 16.09.2019, FIR No. 324/2019 under Section 420 IPC was registered at PS Kashmere Gate.
3. On 10.09.2020, a notice under Section 41A Cr.P.C. was sought to be served upon the petitioner at his address i.e. C-105, Farmer Apartment, Sector- 13 Extn., Rohini, Delhi. However, Ms. Manjeet Kaur stated that the petitioner had sold the said flat to her husband in the year 2015 and she alongwith her family is residing there. She stated that she had no knowledge of latest address or mobile number of the petitioner.
4. On 14.10.2020, another notice under Section 41A Cr.P.C. was sought to be served upon the petitioner at his address i.e. 410, 3 rd Floor, Starlite Apartment, Sector-14 Extn., Rohini, Delhi. However, Mr. Sumit Jain, owner of the said house stated that no such person i.e. the petitioner is residing at the said address.
5. On 15.10.2020, IO SI Sandeep Yadav filed an application for issuance of non-bailable warrant (NBW) against the petitioner. The Jurisdictional Magistrate, vide order dated 15.10.2020, issued NBW against the petitioner. Despite attempts made on 20.07.2022, 21.07.2022 and 30.07.2022, NBW could not be executed against the petitioner.
6. On 06.11.2020, IO SI Sandeep Yadav filed an application for issuance of process under Section 82 Cr.P.C. However, the Jurisdictional Magistrate, after considering the report, issued direction to re-initiate proceedings under Section 82 Cr.P.C., vide order dated 06.01.2021.
7. On 17.08.2022, IO SI Ranvijay again filed an application for issuance of NBW against the petitioner.
8. The Jurisdictional Magistrate, vide order dated 17.08.2022, issued NBW against the petitioner, as under:
"An application for issuance of NBWs against the accused Sushil Sehgal has been moved by the IO.
It is stated in the application that the accused has not joined the investigation till date and is evading from the process of law. It is stated in the application that the present case was registered on the direction under Section 420 IPC and the accused is not joining the investigation and remained absconded from his house. Various DD entries have been placed on record to show the visits of the IO at the provided / known address of the accused. IO has also filed affidavit in compliance of 'Sunil Tyagi vs. NCT of Delhi'.
From the perusal of the record, it appears that the accused is deliberately not joining the investigation of the case. Various opportunities were given to him to join the proceedings, however, he remained absent / absconded.
In such circumstances, let NBWs be issued against the accused through IO / SHO concerned returnable on 25.09.2022.
Copy of this order be given dasti to IO."
9. Despite attempts made on 03.09.2022 and 24.09.2022, NBW could not be executed against the petitioner.
10. On 28.09.2022, IO SI Ranvijay filed an application for issuance of process under Section 82 Cr.P.C. against the petitioner.
11. The Jurisdictional Magistrate, vide order dated 28.09.2022, issue process under Section 82 Cr.P.C. against the petitioner, as under:
"IO has moved an application for initiation of proceedings u/s 82 Cr.P.C. against accused Sushil Sehgal S/o Sh. Krishan Sehgal.
It is stated in the application that the NBWs against the abovesaid accused remained unexecuted. IO has placed on record the DD entries reflecting the visit at the provided address of the abovesaid accused. Affidavit in this regard is also placed with the application in compliance with the judgment of Sunil Tyagi vs. State, Crl. M.C. 5328/2013. The complete record is perused.
In view of above, I deem it appropriate to direct issuance of process U/s 82 Cr.P.C. against the accused.
Accordingly, issue process U/s 82 Cr.P.C. against the accused Sushil Sehgal S/o Sh. Krishan Sehgal. Process be returnable on NDOH. Said process be executed:
1. By publicly reading the proclamation in conspicuous place of town or village in which the accused ordinarily resides.
2. By way of affixation in conspicuous part of the house or homestead in which the accused ordinarily resides or to some conspicuous place of such town or village.
3. By way of affixation in some conspicuous part of the Court."
12. On 27.10.2022, ASI Sudhakar affixed a copy of process under Section 82 Cr.P.C. at C-105, Farmer Apartment, Sector-13 Extn., Rohini, Delhi and 410, 3rd Floor, Starlite Apartment, Sector-14 Extn., Rohini, Delhi. He announced proclamation in the locality by beat of drums.
13. ASI Sudhakar affixed a copy of process under Section 82 Cr.P.C. on notice board of the Court. Process under Section 82 Cr.P.C. was also published in the newspapers 'Punjab Kesari' and 'The Indian Express' on 02.12.2022.
14. The petitioner did not appear before the Jurisdictional Magistrate on or before 30.01.2023.
15. The Jurisdictional Magistrate, vide order dated 30.01.2023, declared the petitioner as 'proclaimed person', as under:
"Statement of the process server is recorded separately.
In view of the statement recorded, accused persons namely Sushil Sehgal is hereby declared as proclaimed person.
File be consigned to record room after due compliance with liberty to the prosecution to revive the same as and when the accused persons are arrested. Copy be given dasti to concerned IO."
16. Ld. Counsel for the petitioner contended that the petitioner had no knowledge of the proceedings under Section 82 Cr.P.C. before the Jurisdictional Magistrate. He contended that the petitioner did not receive any notice under Section 41A Cr.P.C. He contended that the petitioner was not served with process under Section 82 Cr.P.C. He contended that process under Section 82 Cr.P.C. was issued during the period of pandemic on 10.11.2021. He contended that the proclamation was not published in terms of Section 82 Cr.P.C. He contended that Investigating Officer contacted the petitioner on his phone and WhatsApp in the month of 2022.
17. Ld. Counsel for the petitioner contended that Investigating Officer concealed that the petitioner joined the investigation through video conferencing. He contended that the petitioner constituted an attorney for one time settlement and sale of hypothecated vehicles. He contended that the petitioner's attorney made a representation to the bank on 17.12.2022. He contended that process under Section 82 Cr.P.C. was not published in terms of statutory and precedential guidelines. In that regard, he relied on judgments in Sanjay Bhandari vs. State (NCT of Delhi), 2018 SCC OnLine Del 10203, Arun Kumar Perihar vs. State (Govt. of NCTD), Crl. M.C. 863/2021, Manoj Tandon vs. State, Crl. M.C. 1961/2020 and Inder Mohan Goswami and Ors. vs. State of Uttaranchal and Ors., Crl. Appeal No. 1392/2007.
18. Mr. Ashok Kumar Bahl, Advocate for the bank contended that the petitioner changed his address after availing loan. He contended that the petitioner neither paid the loan installments nor furnished his latest address. He contended that the petitioner did not join investigation. He contended that Jurisdictional Magistrate rightly issued NBW against him and he absconded and was concealing so as to evade the execution of NBW against him, Jurisdictional Magistrate rightly issued process under Section 82 Cr.P.C. against him. He contended that requisite formalities prescribed under Section 82 Cr.P.C. were complied. He contended that there is no infirmity in the impugned order.
19. The prime contention of Ld. Counsel for the petitioner is founded on judgment in the case of Mohd. Haris Usmani vs. State (N.C.T. of Delhi), 2021 SCC OnLine Del 5335, as under:
"10. The expression 'reason to believe' appearing in sub-section (1) of Section 82 Cr.P.C. means sufficient cause to believe. Section 26 IPC also explicates that a person is said to have 'reason to believe' a thing if he has sufficient cause to believe that thing but not otherwise. Thus, 'reason to believe' that a person against whom warrant is issued is either absconding or concealing himself should be reflected by the material placed on record before the Court. The use of expression 'so that such warrant cannot be executed' further implies that the person must be attributed with the knowledge that such warrant has been issued against him and his abscondence or concealment is intentional.
14. Adverting to the present case, it is noted that vide order dated 10.02.2020, the learned Metropolitan Magistrate issued process against the petitioner under Section 82 Cr.P.C. in a cryptic manner. The order reads as under:
"Heard.
File perused.
82 Cr.P.C. issued against Accused Haris Usmani for 24/03/2020."
17. On a perusal of Section 82(4) Cr.P.C., it is observed that the use of the expression 'after making such inquiry as it thinks fit' implies that at the time of pronouncing a person as 'proclaimed person' or 'proclaimed offender', the concerned Court has to satisfy itself that the steps indicted in Section 82(1) Cr.P.C. are scrupulously followed. The Court is required to record reasons either after taking evidence or without evidence that the person against whom warrant was issued has absconded or concealed himself so that such warrants cannot be executed.
18. It is worthwhile also to note that the issuance of process under Section 82 Cr.P.C. and pronouncing a person as 'proclaimed person' or 'proclaimed offender' entail serious consequences, including not only deprivation of personal liberty of a person, but also attachment of properties and initiation of proceedings under Section 174A IPC against such person. Therefore, any order to that effect must reflect satisfaction of the Court that the person concerned has absconded or is concealing himself to avoid the process of law. Even otherwise, reasons form the heart and soul of any judicial pronouncement. No judicial order is complete without reasons and it is expected that every Court, which passes an order, should give reasons for the same [Refer : Sebastiani Lakra v. National Insurance Company Limited reported as (2019) 17 SCC 465]."
20. Before proceeding further, it would be appropriate to have a glance to Section 82 Cr.P.C., as under:
"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 specified place and 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 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 the 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).]"
21. As noted above, the Jurisdictional Magistrate issued process under Section 82 Cr.P.C., vide order dated 28.09.2022 against the petitioner.
22. A perusal thereof would show that the Jurisdictional Magistrate taken note of NBWs issued against the petitioner and DD entries pertaining to visit at the addresses of the petitioner, however, the Jurisdictional Magistrate did not record its satisfaction that the petitioner had absconded or was concealing himself so that such warrant could not be executed. Abscondence and non-execution of warrant is one thing and satisfaction of the Court that the petitioner had absconded or was concealing so as to evade execution of warrant issued against him is another thing. Recording of reasons is not empty formality. It is a solemn duty of the Court.
23. Though the proclamation was affixed at last known addresses of the petitioner and it was publicly announced in the locality of the petitioner by beat of drums and also affixed on the outer door of the Court as well as published in the newspapers. As regards the prerequisites for proclamation under Section 82 (4) Cr.P.C., there is sufficient material that all the prerequisites were duly complied. However, the Jurisdictional Magistrate, vide order dated 30.01.2023, did not record statement that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2) or that the requirements of this section were duly complied with.
24. The Jurisdictional Magistrate recorded statement of process server and in view of his statement, he declared the petitioner as a 'proclaimed person'. Therefore, the Jurisdictional Magistrate exercised his jurisdiction in a mechanical manner without application of judicial mind with material illegality. The Jurisdictional Magistrate did not record reason that the petitioner had absconded or concealed himself to evade the process of law.
25. Therefore, order dated 28.09.2022 issuing process under Section 82 Cr.P.C. and order dated 30.01.2023 declaring the petitioner as a 'proclaimed person' suffer from non-application of mind and should be set-aside.
26. Accordingly, the criminal revision petition filed by the petitioner is allowed.
27. Consequently, order dated 30.01.2023 declaring the petitioner as a 'proclaimed person' in FIR No. 324/2019 under Section 420 IPC registered at PS Kashmere Gate is set-aside. A copy of order alongwith trial Court record be sent to the Jurisdictional Magistrate. The criminal revision file be consigned to record room. Digitally signed by SANJAY SHARMA SANJAY Date:
SHARMA 2023.08.05
15:35:03
+0530
Sanjay Sharma-II
ASJ-03, Central District
Tis Hazari Courts, Delhi
NK 05.08.2023