Delhi District Court
Through Power Of Attorney vs State Of Nct Delhi on 6 September, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS)
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CR No. 385 of 2019
Samrat Singh
S/o Sh. Bijendra Pratap Singh
R/o 14 Moore Street
Canberra ACT 2601
Australia
Through Power of Attorney
Sh. Bijendra Pratap Singh
R/o B43, Katwaria Sarai
PhaseI, LIG Flats, New Delhi16 ..........Revisionist
Vs.
1. State of NCT Delhi
2 Sargam Tandon
D/o SH. L R Tondon
R/o M31, Kalkaji
New Delhi ..........Respondents
Instituted on : 04.07.2019
Argued on : 26.08.2019
Decided on : 06.09.2019
Samrat Singh Vs. State & Ors. CR No. 385 of 2019 1/14
ORDER
1 The revisionist has impugned the order dated 7.5.2018 passed by Ld. Trial Court vide which revisionist has been declared Proclaimed Offender.
2 The revision has been filed on the grounds that order of proclamation or attachment of property cannot be passed if a person has left India before issuance of warrants of arrest. The revisionist and respondent no. 2 have subjected themselves to the jurisdiction of Courts in Australia. The procedure u/s 82 & 83 CrPC have not been complied with. The revisionist cannot be declared as proclaimed offender as offence u/s 498A IPC does not fall within section 82 (4) CrPC. Respondent No. 2 has not informed the revisionist of his requirement before the Ld. Trial Court. The existing procedure of service through Ministry of External Affairs has not been complied with. There is nonexecution of the summons and warrants at the known address of the revisionist at Australia. Hence, this revision. 3 The revisionist has also filed an application for condonation of delay in filing the revision on the grounds that there is delay of 393 days in Samrat Singh Vs. State & Ors. CR No. 385 of 2019 2/14 filing the revision. The revisionist is permanent residents of Australia. He has been residing there since 2007. He has lastly visited India much prior to the registration of present FIR. The service of notice of the proceedings u/s 82 & 83 CrPC was never effected upon him in accordance with the procedure. The valid procedure to effect the service of the process upon a person residing abroad is through Ministry of External Affairs. The service was not effected through Ministry of External Affairs even then he was declared proclaimed offender.
4 He has remained unserved. He has severed his relations with his family. He has only travelled once in India in September, 2013. On 12.5.2017 the decree of dissolution of marriage was passed by Competent Court in Australia. The present proceedings were going on. The respondent No. 2 has challenged the decree of divorce before Appellate Court but did not divulge about the present proceedings which shows that she was acting with malafide intention to harass him. In September, 2018 copy of charge sheet and other documents were supplied to his parents when they have realized that orders regarding proclaimed offender and LOC have been passed against him. On 28.11.2018 the respondent No. 2 has informed the Federal Circuit Court of Samrat Singh Vs. State & Ors. CR No. 385 of 2019 3/14 Australia of her consent to file a divorce petition by mutual consent but she did not bring the factum of impugned order in his notice. 5 In February, 2019 he was updated about the status of the present proceedings. He contacted his lawyer and came to know that respondent No. 2 has filed a petition for dissolution of marriage before Family Court, District Court, Saket, New Delhi. Some time was taken to procure the documents of this case and thereafter filed the petition. The delay neither intentional nor deliberate but due to above stated reasons.
6 Notice of the revision and application u/s 5 of Limitation Act is given to the respondents.
7 On 7.5.2018 Ld. Trial Court has declared the revisionist as Proclaimed Offender 8 Ld. Counsel for the revisionist submitted that revisionist has been residing in Australia since 2007. She further submitted that revisionist was residing in Australia at the time when FIR of this case was registered against him. She further submitted that revisionist has not left the country after registration of case. She further submitted that procedure contemplated u/s 105 CrPC has not been followed while executing the process u/s 82 CrPC. Samrat Singh Vs. State & Ors. CR No. 385 of 2019 4/14 She further submitted that judicial process for execution to a foreign country should be submitted to Ministry of Home Affairs, GOI as there is mutual legal assistance agreement with various countries including Australia. She further submitted that due procedure has not been followed for execution of judicial process u/s82 CrPC and mere sending an email of process u/s 82 CrPC to the revisionist does not amount to publication. She further submitted that there was no occasion to issue Look Out Notice against the revisionist. She further submitted that revisionist was not aware about the present proceedings and this fact was also not disclosed by respondent no. 2 to the revisionist in a proceeding for divorce before Competent Court at Australia. She further submitted that revisionist was not aware of the proceedings in question and the revision has been filed as soon as he came to know about the same so there is no malafide intention on his part for delay in filing the revision. She has placed reliance on Mehar Singh & Anr v. State of Punjab 2009 SCC Online, P&H 5811, Crl. Revision Petition 223/18 titled as "Sanjay Bhandari v. State" decided on 31.7.2018 by Hon'ble Mr. Justice Sanjeev Sachdeva of our own Hon'ble High Court, Swiss Timings Ltd v. CBI & Anr, ILR (2012) IV Delhi 234 and The Mutual Legal Assistance Agreement on Samrat Singh Vs. State & Ors. CR No. 385 of 2019 5/14 criminal matters entered into with 39 countries by Ministry of Home Affairs to effect service of summons issued by Indian Courts on a person living abroad.
9 Ld. Counsel for respondent no. 2 submitted that parents of the revisionist are also the accused who were aware of the proceedings in question. He further submitted that revisionist knew about the proceedings in question and he has deliberately avoided to appear in the court. He further submitted that due procedure was followed while declaring the revisionist as Proclaimed Offender. He further submitted that revision filed by the revisionist is not maintainable and it should be dismissed. 10 Ld. Addl. PP for the State submitted that due procedure was followed while executing the judicial process u/s 82 CrPC against the revisionist. He further submitted that revisionist was declared Proclaimed Offender after complying with the requirement of sections 82 & 83 CrPC. 11 Heard and perused the record.
12 The perusal of the record shows that revisionist is an accused in case FIR No. 332/15 u/s 498A/406/34 IPC, PS, Kalkaji, New Delhi. On 30.11.2017 SI Rahul Kumar moved an application for recording his statement Samrat Singh Vs. State & Ors. CR No. 385 of 2019 6/14 regarding the execution of process u/s 82 CrPC. His statement was recorded. His application to issue the process u/s 82 CrPC was allowed. The process u/s 82 CrPC was also issued at the Australian address of the revisionist through Ministry of External Affairs for 12.1.2018. On 15.1.2018 the fresh process at the Australian address was issued for 7.5.2018. On 7.5.2018 the process u/s 82 CrPC was received back unexecuted as the time was short to execute the process. The fresh process was not issued. Process u/s 83 CrPC was received back executed. The revisionist was declared Proclaimed Offender. 13 The perusal of trial court record shows that revisionist is the resident of Australia. He has been residing abroad even prior to marriage. On 31.8.2013 his marriage with respondent No. 2 has been solemnized in India. A complainant dated 6.2.2015 was given Sh. L R Tondon, father of respondent No. 2 against the revisionist and his family members. On11.4.2015 FIR 332/15, u/s 498A/406/34 IPC, PS, Kalkaji has been registered against the revisionist and others. The revisionist did not join the investigation as a result he was declared Proclaimed Offender vide order dated 7.5.2018.
14 Section 105 CrPC says about the reciprocal arrangements for Samrat Singh Vs. State & Ors. CR No. 385 of 2019 7/14 assistance in certain matters and procedure for attachment and forfeiture of property.
15 Section 105B CrPC says that where a Court in India, in relation to criminal matter, desires that a warrant of arrest of any person to attempt or to produce document or other things issued by it shall be executed in any place in a contracting state, it shall sent such warrant in duplicate in such form to such Court, Judge, Magistrate through such authority as a Central Government by notification may specify in this behalf and that Court, Judge, Magistrate, as the case may be, shall call the same to be executed. 16 The contracting state means--any country or place outside India in respect of which arrangements have been made by Central Government with the government of such country through a treaty or otherwise. 17 The Ministry of Homes Affairs, GOI has entered into a Mutual Legal Assistance Treaties/Agreement on criminal matters with 39 countries including Australia for service of summons/warrants/judicial process/documents.
18 A person can be declared Proclaimed Offender for the offences which finds reflection in section 82 (4) CrPC after following the due Samrat Singh Vs. State & Ors. CR No. 385 of 2019 8/14 procedure of law.
19 In the instant case, there is delay in filing the revision. The grounds for delay are that he has been residing in Australia. He was residing in Australia even prior to registration of FIR in question. He has severed his relations with his family due to allege on going litigation. He has got a decree of dissolution of marriage from Competent Court of Jurisdiction in Australia on 12.5.2017. The respondent No. 2 has filed an appeal against the said decree wherein she has not disclosed about the pendency of the present proceedings qua him or declaring him Proclaimed Offender. He has contracted his family in February, 2019 and come to know about the present proceedings and thereafter executed the attorney in favour of his father. The lawyer was contracted. The details were gathered and thereafter revision was filed.
20 There is nothing on record that revisionist was aware of present proceedings or respondent no. 2 has ever brought to his notice about the present proceedings though she has challenged the decree of divorce passed against her by the Court of Competent Jurisdiction in Australia. 21 The rules of Limitation are meant to advance the justice. The Samrat Singh Vs. State & Ors. CR No. 385 of 2019 9/14 rights of the parties should not be curtailed on the point of limitation. The technicalities should not come in the way of advancement of justice. The approach should be justice oriented. There is nothing on the record to show that delay smacks of any malafide. There is nothing on record to show that there is deliberate attempt on the part of revision to delay the proceedings. The delay does not seem to be intentional but due to the reasons put forth by the revisionist. There is sufficient cause for delay in filing the revision and same is condoned.
22 It is clear from the trial court record itself that revisionist has been residing in Australia even prior to his marriage with respondent No. 2. He has left for Australia after the marriage. He has been residing in Australia. The father of respondent No.2 has given a complaint to National Commission for Women upon which notice was issued to the revisionist on 11.4.2014 which shows that he is resident of Australia with his local address of Delhi. 23 The FIR has been registered on 11.4.2015. The revisionist did not allegedly join the investigation. NBW was issued on application of the IO. The NBW was issued at the local address of his parents. 24 On 22.12.2016 IO has moved an application to issue process u/s Samrat Singh Vs. State & Ors. CR No. 385 of 2019 10/14 82 CrPC as NBW remained unexecuted and Look Out Corner (LOC) has already been opened against at his Australian address. The process u/s 82 CrPC was issued at his local address. The process u/s 82 CrPC at local address was executed and process was also sent through email to the revisionist.
25 On 30.11.2017 statement of SI Ram Kumar was recorded regarding the execution of process u/s 82 CrPC. The fresh process u/s 82 CrPC was issued at the address of Australia through Ministry of External Affairs for 12.1.2018.
26 On 4.12.2017 IO has written a letter to PHQ to approach the concerned authority for execution of process. On 8.12.2017 a letter was written by ACP, Legal Cell to DCP/SE that three months time is required to execute the process.
27 On 15.1.2018 fresh process u/s 82 CrPC has been issued against the revisionist at his Australian address which was sent through the Ministry of Home Affairs. The process was received back unserved due to short time. 28 The process u/s 83 CrPC was received back. No fresh process was issued. On 7.5.2018 revisionist was declared Proclaimed Offender (PO). Samrat Singh Vs. State & Ors. CR No. 385 of 2019 11/14 29 The revisionist has been residing in Australia. The procedure incorporated u/s 105 CrPC has not been followed. The guidelines shown in the Mutual Legal Assistance Treaty/Agreement for service of summons/judicial process on a person residing abroad have not been followed while executing the process i.e. NBW as well as process u/s 82 CrPC.
30 There is nothing on record that revisionist has left the country after the registration of FIR.
31 The fresh process u/s 82 CrPC was not issued at the Australian address of the revisionist though the earlier one was received back unexecuted due to short time. The revisionist was declared PO on the basis of the execution of process u/s 82 & 83 CrPC at the address of his parents. 32 The service of the process u/s 82 CrPC through email is no publication.
33 The fresh process at the Australian address should have been issued when it was within the knowledge of the Court that revisionist has been residing in Australia. The proclamation u/s 82 CrPC can be issued if the Court has reasons to believe that the person against whom proclamation has Samrat Singh Vs. State & Ors. CR No. 385 of 2019 12/14 been issued has absconded or concealing his presence. The process was never served upon the revisionist at his Australian address. There is no question of concealing the presence or absconding from the due process of law in order to avoid the execution of warrant.
34 The revisionist could not have been declared even Proclaimed Offender (PO) as the offence u/s 498A/406 IPC does not fall within the ambit of Section 82 (4) CrPC.
35 I have drawn support from the case law referred to by Ld. Counsel for the revisionist.
36 The Look Out Circular was opened on the application dated 21.5.2016 of the IO as revisionist has not joined the investigation. The IO should not have taken such a step unless the process to him was issued at his Australian address through the concerned authorities. There is nothing on record that revisionist is avoiding the execution of warrant. 37 The revisionist has been declared proclaimed offender without complying with the provisions of section 82 CrPC and LOC was issued without anything on record that he is avoiding the service of judicial process. 38 I find an infirmity in the order dated 7.5.2018 passed by Ld. Trial Samrat Singh Vs. State & Ors. CR No. 385 of 2019 13/14 Court. The order dated 7.5.2018 is set aside. The Look Out Circular opened against the revisionist also set aside.
39 The prosecution shall take the steps afresh for issuance of NBW against the revisionist at his Australian as per law. 40 TCR alongwith copy of this order be sent back to the Ld. Trial Court.
41 Revision file be consigned to record room.
announced in the open court on 6th September, 2019 (SURESH KUMAR GUPTA) Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Samrat Singh Vs. State & Ors. CR No. 385 of 2019 14/14