Delhi District Court
Neeraj Sharma vs State And Anr (Gnctd) on 1 December, 2023
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI.
CNR No. DLCT01-002673-
2022
CR No. 86/2022
Neeraj Sharma
S/o. Sh. Mahesh Chand Sharma
R/o. H. No. 1, Dandalakhond,
Near IT Park, Sahastradhara Road,
Dehradun, U.K. 248001.
...... Revisionist
Vs.
1. State
(Govt. of NCT of Delhi)
2. Manish Gupta
S/o. Sh. Mangal Sain
R/o. UA-49, Block UA,
Jawahar Nagar, Delhi.
......
Respondents
Date of institution of Revision : 10.02.2022
Date on which order reserved : 01.11.2023
Date on which order pronounced : 01.12.2023
ORDER
1. The present revision petition has been filed by the revisionist Neeraj Sharma u/s. 397/399 Cr. P.C. CR No. 86/2022 Neeraj Sharma Vs. State Page No. 1 of 14 challenging the impugned order dated 01.11.2021 passed by the ld. Trial Court of Ms. Prigya Gupta, Ld. MM-08, Central, THC, Delhi in CIS No. 530685/2016, whereby the revisionist was declared as proclaimed offender.
2. The brief facts of the case necessary to decide the present revision petition are that in the criminal complaint case, the revisionist alongwith others, was summoned for the offences u/s. 420/34 IPC vide summoning order dated 18.07.2018 of the ld. Trial Court. The summons to the revisionist received back served upon the manager Sunil Rawat of the company, after having consultations on the phone. Consequently, vide order dated 11.09.2018, the ld. Trial Court issued bailable warrants against the revisionist and other accused persons and upon them being received unexecuted, NBWs were issued against the accused persons including the revisionist vide order dated 31.10.2018. The order-sheet dated 15.12.2018 reveals that memo of appearance was filed on behalf of the revisionist and his brother by their Counsel Sh. Basant Verma, Advocate. NBWs were again issued against the revisionist vide order dated 15.12.2018, 01.02.2019, 26.02.2019, 22.03.2019 and consequently, the ld. Trial Court observed that the revisionist is deliberately avoiding the service of the process or is concealing himself and accordingly, issued process u/s. 82 Cr. P.C. against the revisionist vide order dated 17.05.2019. The process u/s. 82 Cr. P.C. was duly executed and after recording the statement of the Process Server regarding execution of process u/s. 82 Cr.
CR No. 86/2022 Neeraj Sharma Vs. State Page No. 2 of 14P.C., the ld. Trial Court declared the revisionist Neeraj Sharma as proclaimed offender vide impugned order dated 01.11.2021. Aggrieved by such order, the revisionist had preferred the present revision petition for setting aside the impugned order.
3. It is contended by the ld. Counsel for revisionist that the revisionist is an ordinary resident of Dehradun, Uttrakhand and he was never served at his residential address and therefore, he was not aware about the proceedings of the ld. Trial Court. It is further contended that the reports on the NBWs would reveal that the revisionist was not residing at the addresses mentioned in the NBWs. It is further contended that the revisionist was no longer functioning as the director of the accused company as earlier also, he was working only as sleeping director. It is further contended that the process issued against him was not issued at his correct address of Dehradun where he has been residing since last 10-12 years. It is further contended that the process u/s. 82 Cr. P.C. has been issued without application of mind and without appreciating the facts of the case. It is further contended that the revisionist came to know about the impugned order through his Counsel, who on 20.01.2021 was searching for the Court orders that the revisionist was declared as Proclaimed Offender and hence, the revisionist engaged his Counsel and filed the present petition. It is further contended that the revisionist has not been charged with any of the 19 offences mentioned in Section 82 (4) Cr. P.C. and therefore, he CR No. 86/2022 Neeraj Sharma Vs. State Page No. 3 of 14 cannot be declared as Proclaimed offender and as such, the impugned order is liable to be set aside. It is prayed that the present revision petition may be allowed and the impugned order may kindly be set aside. In support of the revision petition, the ld. Counsel for revisionist has relied upon the following judgments :-
(a) Union of India and Ors. vs. Dinesh Prasad, Civil Appeal No. 1961/2010, decided on 30.10.2012.
(b) Kalaram @ Kamlesh vs. State, Crl. M.C. 60/22 and Crl. M.A. 241/22, decided on 02.12.2022.
(c) Ishwarlal Kuldeep vs. State of Rajasthan in SB Crl. Misc. Petition No. 6800/2017, decided on 17.02.2018.
(d) Akriti Man vs. State and Anr., Crl. Rev. No. 16/2017.
(e) Manmohan Singh vs. M/s. Wonder Polymers (P) Ltd., Crl. Rev. No. 219/13 and
(f) Mohd. Haris Usmani vs. The State (NCT of Delhi), Crl. M.C. No. 1871/21 & Crl. M.A. 12846/21, Crl. M.A. 12847/21, decided on 08.12.2021.
4. To the contrary, the Ld. Addl. PP for State submitted that the ld. Trial Court has rightly passed the impugned order and there is no error or illegality in the said order.
5. The ld. Counsel for R-2 contended that the impugned order is interlocutory in nature and the present revision petition is not maintainable. It is further argued that in the affidavit supporting the present revision petition, the revisionist has mentioned his new address to be house no. 1, Dandalakhond, near IT Park, Shahastradhara road, Dehradun, U.K. which is contradictory to the address CR No. 86/2022 Neeraj Sharma Vs. State Page No. 4 of 14 mentioned in the Aadhar card and passbook of the revisionist i.e. house no. C-2, Kenal Road, Jakhan road, Dehradun, Uttrakhand. It is further argued that the supporting affidavit filed with the present revision petition is defective as the signatures of the revisionist are identified by Sh. Dharamvir Singh, Advocate, Dehradun and not by the Counsel for revisionist and also the affidavit and vakalatnama was signed by the revisionist on 20.01.2022 while the revision and the accompanying application were drafted and signed on 08.02.2022 by the revisionist. It is further argued that the revisionist is a habitual criminal involved in numerous criminal cases which are as follows:-
(a) FIR No. 0982/2018, PS Noida, Sector 20, U/s.
420/406/409/506/120 IPC.
(b) FIR No. 0168 dated 25.05.2018, PS Pandav Nagar, U/s. 420/120B/34 IPC.
(c) FIR No. 0172 dated 28.05.2018, PS Pandav Nagar, U/s. 420/120B/34 IPC.
(d) FIR No. 0173 dated 28.05.2018, PS Pandav Nagar, U/s. 420/120B/34 IPC.
(e) FIR No. 732/15 dated 10.10.2015, PS Pandav Nagar, U/s. 420/120B/34 IPC.
(f) FIR No. 0153/15 dated 09.10.2015, PS Crime Branch, U/s. 409/420/120B IPC.
(g) CS No. 3472/2016, Dharamvir Malik vs. IFI Realty Pvt. Ltd. & Ors., date of decision-
05.05.2018, decree of recovery passed against IFI Realty.
(h) CS No. 851/2017, Kushal Kumar Jain vs. IFI Realty Pvt. Ltd. & Ors., date of decision- 28.01.2019, decree of recovery passed against IFI Realty.
(i) Newspapers reports obtained from internet.
CR No. 86/2022 Neeraj Sharma Vs. State Page No. 5 of 146. It is further argued that the revisionist was having office at Delhi and he was the director of the accused company M/S. IFI Realty Pvt. Ltd. having registered office and branch office at New Delhi and Noida. It is further argued that the summons were issued at all the addresses of the revisionist and the same were duly received by the employee of the company and even the Counsel for revisionist had appeared before the ld. MM on 15.12.2018 and therefore, the revisionist was aware about the proceedings since then he deliberately did not appear before the Court and avoided the Court process intentionally. It is further argued that if the address of the revisionist was at Dehradun then the correct address would have been apprised by his Counsel who has appeared before the Court on his behalf. It is further argued that the revisionist was keeping silent eye on the case and had approached the Court when he had been declared P.O. by the ld. Trial Court.
7. This Court has heard the rival submissions on behalf of the parties and perused the judicial record.
8. First of all, the Counsel for R-2 has raised an objection as to the maintainability of the present revision petition on the ground that the impugned order is interlocutory in nature. In this regard, it is important to mention that the impugned order declaring the revisionist as proclaimed offender substantially affects that rights and liabilities of the parties and as such, the impugned order cannot be termed as interlocutory. This Court is fortified by the observations of CR No. 86/2022 Neeraj Sharma Vs. State Page No. 6 of 14 the Hon'ble High Court of Delhi in Kalaram @ Kamlesh vs. State, Crl. M.C. 60/22 and Crl. M.A. 241/22, decided on 02.12.2022, wherein it was held that the accused has alternate remedy u/s. 397 r/w 401 Cr. P.C. against the impugned order declaring him as Proclaimed offender. The Hon'ble High Court of Rajasthan in Ishwarlal Kuldeep vs. State of Rajasthan in SB Crl. Misc. Petition No. 6800/2017, decided on 17.02.2018, held that the order declaring the accused as Proclaimed offender is revisable. Further, the Hon'ble High Court of Punjab and Haryana in case Ashish vs. State of Punjab and Anr., in Cr. M.-M 18003/2022, decided on 29.04.2022 held that the impugned order declaring accused as Proclaimed offender is not an interlocutory order and would be revisable.
9. Now, coming to the merits of the case, this Court has to ponder upon whether the impugned order passed by the ld. Trial Court suffers from any illegality, irregularity or infirmity or whether the same exceeds the jurisdiction or exercises jurisdiction for which the Trial Court is not so empowered or whether there is any miscarriage of justice.
10. To decide the present case, it is important to refer Section 82 Cr. P.C. which reads as follows :-
82. Proclamation for person offending.-(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 at a specified time not less than 30 days from the date of publishing such proclamation.CR No. 86/2022 Neeraj Sharma Vs. State Page No. 7 of 14
(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 time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him as 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).
11. A bare glance at the provisions of Section 82 Cr. P.C., would reveal that if the Court has reason to believe that if any person against whom warrants have been issued by it, has absconded or is concealing himself to avoid execution CR No. 86/2022 Neeraj Sharma Vs. State Page No. 8 of 14 of such warrants, the Court may publish a written publication requiring him to appear in not less than 30 days before it from the date of publication of the proclamation.
12. Section 82 (2) Cr. P.C. further stipulates that manner and procedure of such proclamation. Section 82 (3) Cr. P.C. provides that statement in writing by the Court issuing the proclamation to the fact that the proclamation was duly published in the prescribed manner, shall be conclusive evidence that the requirements of this Section have been complied with and that the proclamation was published on such date.
13. Section 82 (4) Cr. P.C. was inserted by the amendment in the year 2005 with effect from 23.06.2006 which provides the specific 19 offences for which the accused can be declared a Proclaimed offender. For the cases involving one or more Sections of the specific 19 offences, the accused can be declared a "Proclaimed offender", otherwise he may be declared as a "Proclaimed person".
14. In the present case, the offences involved are Section 420/34 IPC which is not one of the enumerated Sections provided in Section 82 (4) Cr. P.C. and therefore, the revisionist could not have been declared as "Proclaimed offender". To that extent, the impugned order passed by the ld. Trial Court is found to be erroneous but the same would not affect the status of the revisionist as a "Proclaimed person".
CR No. 86/2022 Neeraj Sharma Vs. State Page No. 9 of 1415. Similar situation arose before the Hon'ble High Court of Delhi in Sanjay Bhandari vs. State of NCT of Delhi, Crl. Rev. P. 223/2018, decided on 31.07.2018, whereby the Hon'ble High Court of Delhi quashed the impugned order to the extent of declaring the petitioner as Proclaimed offender and further observed that this would not affect the status of the petitioner as a Proclaimed person.
16. Thus, the revisionist may be treated as "Proclaimed person" instead of "Proclaimed offender" as declared by the ld. Trial Court in the impugned order.
17. Now, coming to the contention raised by the Counsel for revisionist that the revisionist was resident of Dehradun and that he was not aware about the Trial Court proceedings. In this regard, it is important to note that the revisionist alongwith the accused company and other directors are made accused for cheating u/s. 420/34 IPC. The company master data of IFI Realty Pvt. Ltd. shows the registered address of the company as shop no. T-2, Sachdeva Complex, Pkt-B, Mayur Vihar-II, Mayur Vihar East Delhi, Delhi-100091 and the revisionist is mentioned as director since 28.06.2010 and there is no date mentioned in the column "end date", which means that the revisionist has always remained as the director of the aforesaid company. The summons were issued to the revisionist at the aforesaid address which received back served upon the manager of the company namely Sunil Rawat who had received the summons after having consultation over the phone. Record also reveals that after issuance of NBWs CR No. 86/2022 Neeraj Sharma Vs. State Page No. 10 of 14 against the revisionist, his Counsel Sh. Basant Verma, Advocate has appeared on his behalf before the ld. Trial Court on 15.12.2018 and has filed memo of appearance on his behalf but he did not file the address of the revisionist in the memo of appearance. The record further reveals that the NBWs issued to the revisionist returnable for 15.12.2018, received back unexecuted with the report that the office was found locked and the address of the revisionist was known to be A-26, Pkt-B, Mayur Vihar, Phase-II, wherein sister in law (bhabhi) namely Anjali Sharma wife of Dheeraj Sharma met who gave her statement that her husband and the revisionist had gone to Dehradun for some business purpose, but she did not furnish the address of the revisionist at Dehradun, neither she stated that the revisionist is a resident of Dehradun. It is also pertinent to mention here that the summons to the accused company through its directors also received back unexecuted with the statement of security guard namely Anirudh Yadav that the revisionist and his brother are his employers and the revisionist had gone to some unknown place at Dehradun and he will made them aware about the order of the Court.
18. The other NBWs against the revisionist returnable for 01.02.2019 received back unexecuted with report that on inquiry, the phone number 8191905070 of Smt. Asha Sharma wife of Neeraj Sharma was found and she was contacted over phone, who told that her husband Neeraj CR No. 86/2022 Neeraj Sharma Vs. State Page No. 11 of 14 Sharma is in Dehradun but despite asking several times, she did not provide the address of Dehradun.
19. The next NBWs returnable for 22.03.2019 returned back with report that the mobile number 9310143000 of the revisionist and the mobile number 9191905070 of his wife were found switched off.
20. The next NBWs against the revisionist returnable for 26.02.2019 received back unexecuted with report that the office was on rent and the revisionist had left the given address.
21. The next NBWs against the revisionist returnable for 17.05.2019 received back with the report "premises locked" and on inquiry, his address was found to be Pkt-B, Flat No. 26, Mayur Vihar, Phase II, Delhi where Ashu Sharma wife of Neeraj Sharma met who gave her statement that her husband is residing at Dehradun and she will produce her husband on 17.05.2019 before the Court. Here also, the wife of the revisionist did not provide Dehradun address of the revisionist.
22. It is also important to note that in the criminal complaint case, the complainants had filed one application u/s. 156 (3) Cr. P.C. for registration of FIR against the revisionist and others but the same was dismissed by the order dated 15.02.2017 by the ld. Trial Court. Against the said order, the complainants had filed one revision petition before the Court of ld. ASJ, which was dismissed vide order dated 25.09.2017. In the said revision petition, the present CR No. 86/2022 Neeraj Sharma Vs. State Page No. 12 of 14 revisionist Neeraj Sharma was respondent no.3 and he had duly opposed the said revision petition through his Counsel Sh. Ashok Chhapri. Thus, with no stretch of imagination, it could be accepted that the revisionist was not aware about the ld. Trial Court proceedings.
23. The revisionist has contended that he was resident of Dehradun and the processes were not served or executed at his Dehradun address but nowhere in his revision petition, the revisionist has furnished his residential address where he was residing at the relevant time. He has filed copy of his Aadhar card and Axis Bank passbook which shows his residential address to be C-2, Kenal Road, Jakhan, Dehradun, Uttrakhand, but it is interesting to note that in the present revision petition, the revisionist has filed his supporting affidavit wherein his residential address is shown to be house no. 1, Dandalakhond, near IT Park, Sahashtradhara road, Dehradun. The revisionist is found to be involved in numerous criminal cases as delineated by R-2 in his reply.
24. From the facts and circumstances, it infers that the revisionist was very well aware about the Court proceedings and he deliberately and intentionally avoided the Court processes and concealed himself. The order- sheets of the ld. Trial Court and the reports on the processes issued by the Court reveal since efforts by the Court to secure the presence of the revisionist which was deliberately avoided by the revisionist. No illegality, irregularity or infirmity is found in the impugned order CR No. 86/2022 Neeraj Sharma Vs. State Page No. 13 of 14 passed by the ld. Trial Court, except that the words "Proclaimed person" would have been used in place of "Proclaimed offender". The same is accordingly corrected by this order.
25. For the foregoing reasons, the revision petition is hereby dismissed.
26. Copy of this order alongwith TCR be sent to the ld. Trial Court for information and necessary action.
27. Revision file be consigned to Record Room after due compliance.
SUSHIL Digitally signed by SUSHIL ANUJ ANUJ TYAGI Date: 2023.12.01 Announced in the open TYAGI 15:08:15 +0530 Court on 01st December, 2023 (SUSHIL ANUJ TYAGI) ASJ-04/CENTRAL/DELHI 01.12.2023(VR) CR No. 86/2022 Neeraj Sharma Vs. State Page No. 14 of 14