Himachal Pradesh High Court
Som Nath & Others vs Kapil Shankar on 1 July, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 238 of 2019 Reserved on: 30.6.2020 .
Date of decision: 1.7.2020
Som Nath & others. ...Petitioners.
Versus
Kapil Shankar. ...Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners: Mr. Manohar Lal Sharma, Advocate.
For the Respondent: r Mr.Anil Shankar, Advocate.
Vivek Singh Thakur, Judge
Present petition has been preferred by the petitioners, under Section 482 of Cr.P.C. for quashing of order dated 15.3.2019 passed by learned Additional Sessions Judge-1, Solan, District Solan, H.P., in Criminal Revision No. 17-S-10/2018, titled as Kapil Shankar Vs. Som Nath & others, whereby learned Additional Sessions Judge-1, Solan, has issued non- bailable warrants against the petitioners in order to ensure their service, to provide them opportunity of being heard, in Criminal Revision preferred by respondent.
2. It is contended on behalf of the petitioners that learned Additional Sessions Judge-I, Solan, has issued notice and non-bailable warrants in a routine manner without going through facts of the case. Even, prima face, no notice and criminal action is warranted against the petitioners for securing their presence in a revision petition filed against dismissal of complaint by the trial Magistrate before issuance of notice and taking cognizance against them and further that order of issuing notice to petitioners passed by learned Additional Sessions Judge, is undated which establishes casual approach adopted by learned Additional Sessions Judge. Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 2 Cr.MMO No. 238 of 2019 It is also contended on behalf of petitioners that power of ensuring presence of a party, by issuing non-bailable warrants, should be exercised sparingly and with application of judicial mind, after giving due regard to the nature of .
offence, position of the accused persons and circumstances of the case, as issuance of warrant involves interference with personal liberty of a person. According to him, for deciding the revision petition, pending before learned Additional Sessions Judge Solan, presence of petitioners, respondents therein, is not warranted as revision is against the order whereby the complaint filed by the respondent-complainant has been dismissed by the trial Court at the stage of pre-cognizance.
3. On behalf of petitioners, learned counsel representing them, to substantiate their stand, has placed reliance upon a judgment of the High Court of Delhi, in Criminal Revision Petition No. 16 of 2008, decided on 12.2.2009, titled as Tata Motors Limited Vs. State, by referring following paras:-
"20. The legal position that emerges from the above decisions of the Supreme Court as this Court is as under:-
(1) There is a distinction to be drawn between the criminal complaint cases which are at the pre-cognizance stage and those at the post-cognizance stage. There I a further distinction to be drawn between the cases at the post-
cognizance but pre-summoning stage and those at the post- summoning stage.
(2) It is only at the pot-summoning stage that the respondents in a criminal complaint would answer the description of an 'accused'. Till then they are like any other member of the public. Therefore, at the pre-summoning stage the question of their right to be heard in a revision petition by the complainant in their capacity as "accused" in terms of Section 401(2) Cr.P.C. does not arise.
(3) At the post-cognizance but pre-summoning stage, a person against whom the complaint is filed might have a right to be heard under the rubric of 'other person' under Section 401(2) Cr.P.C. If the learned MM has not taken the cognizance of the ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 3 Cr.MMO No. 238 of 2019 offence then no right whatsoever accrues to such "other person" to be heard in a revision petition.
(4) Further, it is not that in every revision petition filed by the complainant under Section 401(2) Cr.P.C., a right of hearing .
has to given to such "other person" or the accused against whom the criminal complaint has been filed. The right accrues only if the order to be passed in the revision petition is prejudicial to such person or the accused. An order giving a specific direction to the learned MM to either proceed with the case either at the post-cognizance or post-summoning stage or a direction to register an FIR with a direction to the learned MM to proceed thereafter might be orders prejudicial to the respondents in a criminal complaint which would therefore, require them to be heard prior to the passing of such order.
21. As far as the present case is concerned, the learned MM did not summon any of the applicants against whom the criminal complaint was filed. The learned MM did not even taken cognizance of the offences. The complaint was dismissed in limine. Therefore, clearly there is no question of the applicants being heard at this stage in the revision petition."
4. Referring aforesaid pronouncement, it is contended on behalf of the petitioners that their presence is not warranted at all before the learned Additional Sessions Judge.
5. Referring the pronouncement of the Apex Court in case titled as Inder Mohan Goswami & Another Vs. State of Uttaranchal & others, reported in (2007) 12 SCC 1, learned counsel for the petitioners has stated that issuance of non-bailable warrants against petitioners is an excess of jurisdiction as the circumstances to issue non-bailable warrants against petitioners do not exist at all. Referring following paras 53 to 56 of this judgment, it is contended that non-bailable warrants are liable to be quashed:-
"53. Non-bailable warrants should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:
It is reasonable to believe that the person will not voluntarily appear in court; or ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 4 Cr.MMO No. 238 of 2019 the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.
.
54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint.
lf the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non- bailable warrants.
56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused charged with the commission of an offence of a heinous Crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants Should be avoided."
6. Learned counsel for the respondent has submitted that after issuance of notice to the petitioners, they were avoiding their service deliberately and issuance of summons to them in the Criminal Revision was very much in their knowledge and despite that they were evading their presence in the Court by managing to return the summons without service and the fact that they were knowing not only about the process issued ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 5 Cr.MMO No. 238 of 2019 against them but also the next date of hearing, i.e. 31.10.2018, is proved on record from the letter sent by petitioner No. 1, which has been placed on record as Annexure P5, as in this letter, addressed to learned Additional .
Sessions Judge, it is stated that old age of 79 years of petitioner and his precarious health must be considered by the Court and if Court still wanted Mr. Som Nath to be present for the enquiry, then complainant Kapil Shankar could deposit his (Som Nath's) air fares and expenses, in the Court, which would be incurred by the petitioner to attend the Court. Learned counsel for the respondent has further submitted that notice was issued by the learned Additional Sessions Judge after taking into consideration the material placed on record and it is wrong to suggest that the notice has been issued to the petitioners in a routine manner and further that respondent has filed the Revision Petition, order sought to be passed wherein is an order which would be definitely against the interest of the petitioners and, therefore, learned Additional Sessions Judge has rightly issued notice to petitioners, to give them opportunity of being heard before passing any adverse order against them.
7. Record received from learned Additional Sessions Judge reveals that after dismissal of his complaint, by learned Judicial Magistrate 1st Class, Court No.-II, Solan preferred by respondent under Section 156(3) of Cr.P.C., respondent has filed Revision Petition, assailing the said order, in the Session's Court and it was presented by his counsel Mr. Anil Shankar, Advocate on 30.7.2018 and was taken up by learned Sessions Judge on the same day and assigned to learned Additional Sessions Judge-1, Solan for disposal with further direction to send the file to the concerned Court forthwith. Thereafter, the case was taken up by learned Additional Sessions Judge, Solan who directed the office to check and register the petition and further directed to issue notice to petitioners (respondents therein) through Speed post, returnable by 31.8.2018. Therefore, it is misconceived notice ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 6 Cr.MMO No. 238 of 2019 that first order passed by learned Additional Sessions Judge, is undated. At first glance, it appears to be undated as on the very same date learned Sessions Judge has passed the order which was written by him on the back .
side of last page of the petition, whereby the petition was assigned to learned Additional Sessions Judge with directions to put up the file forthwith and in continuation thereof the first order by learned Additional Sessions Judge in the Criminal Revision was passed on an order sheet which gives an impression that this order is undated. However, there is plenty evidence to infer that impugned order was passed on 30.7.2018.
8. Along with Revision Petition, complaint filed by the respondent before the Trial Court and all documents relied upon by him, before learned Magistrate in support of the said complaint, have also been filed. Therefore, entire record produced by respondent before the Trial Court was also available with the learned Additional Sessions Judge and in normal course at the time of issuance of the notice documents are perused and submissions of the counsel for the petitioners are considered and thereafter notice issued.
9. In view of the general presumption, unless contrary is proved, it is to be presumed that act, to be done by the authority as warranted to be done under law, must have been done in accordance with law. Therefore, for availability of complaint and documents in support thereof, on the file placed before learned Additional Sessions Judge, it is to be presumed that the notice by learned Additional Sessions Judge was issued to the petitioners (respondents therein) after considering the entire material placed before him.
10. Perusal of record also reveals that on 31.8.2018 notices issued to the petitioners (respondents therein) were not received back whereupon fresh notices were issued to them returnable on 31.10.2018 on which date again the notices were found to be unserved and noticing that petitioners ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 7 Cr.MMO No. 238 of 2019 were reported to be residing in Canada, fresh notices to them were ordered to be served through proper channel for 26.12.2018. On 26.12.2018 learned Presiding Officer was on leave and, therefore, case was taken up .
for proper order on 7.1.2019 and again notices returnable for 15.3.2019 were issued to petitioners (respondents therein).
11. Lastly, it was reported by serving agency that the notices issued for 15.3.2019 were duly served upon the petitioners (respondents therein) at their given address by way of speed post and the said fact was supported by the track record filed by the respondent (revision petitioner therein) and by learned Additional Sessions Judge it was also noticed on that day i.e. 15.3.2019 that there was a letter received by the Court which was written by petitioner No. 1 showing that the said petitioner was having knowledge of pendency of matter and issuance of notice to him. In this letter, placed on record as Annexure P5 by the petitioners themselves as also recorded herein above, it was stated by petitioner No. 1 that in case his travelling expenses could be paid by the respondent-complainant then petitioner would be ready to appear in the Court of law. Subject of this letter has been captioned as 'notice hearing date 31.10.2018' and this letter is dated 11th October, 2018. Therefore, it is evident that in October, 2018 petitioners were having knowledge of issuance of notices against them and for contents of letter it was clear that they were not ready to appear before the Court in compliance thereof, rather they were putting their own conditions for their appearance in the Court. There is no procedure, asking the petitioners or appellant to deposit to and fro charges for travelling of respondent in a criminal case. In an appropriate case, the Court has power to impose cost but such cost cannot be a pre-condition for appearing in the Court. In any case, undoubtedly, the petitioners were having the knowledge and despite that they were not only evading the service rather dictating the Court their terms and conditions for their appearance. Therefore, in these ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 8 Cr.MMO No. 238 of 2019 facts and circumstances, learned Additional Sessions Judge had no option but to issue non-bailable warrants against the petitioners.
12. The Apex Court in Inder Mohan Swami's case has held that .
non-bailable warrants can be issued when it is reasonable to believe that person will not voluntarily appear in the Court and the Court is of the opinion that summons, will not suffice to ensure appearance of the accused in the Court and further that non-bailable warrants must not be issued without proper scrutiny of facts and complete application of mind for extremely serious consequences and ramifications which ensue on issuance of warrants and, at the first instance, Court should direct serving of summons only and when Court is fully satisfied that accused is evading the Courts proceedings intentionally, the process of issuance of non-bailable warrants should be resorted to.
13. In present case from the facts discussed herein above, it is evident that despite having knowledge of issuance of summons, petitioners were evading the service. Summons issued by the Court below were not suffice in ensuring their presence in the Court. Despite having knowledge in October, 2018 with regard to issuance of process against them petitioners, not only preferred to remain absent but also tried to dictate their terms to the Court for their presence.
14. Under aforesaid circumstances, learned Additional Sessions Judge, has not committed any mistake by issuing non-bailable warrants against the petitioners.
15. Another issue raised by petitioners is that issuance of process for their presence by revisional Court is unwarranted for the reasons that Revision preferred by respondent/claimant before learned Additional Sessions Judge is against order passed by learned Magistrate dismissing the complaint filed by respondent/complainant at pre-summoning stage and in a Revision preferred against dismissal of complaint at pre-summoning ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 9 Cr.MMO No. 238 of 2019 stage, presence of respondent/proposed accused is not required at all. To substantiate plea raised on behalf of petitioners, learned counsel for the petitioners has referred verdict of Delhi High Court in Tata Motors Ltd. case .
referred supra.
16. Learned counsel for the respondent/complainant, referring provisions of Section 401(2) of Cr.P.C., has canvassed that revisional Court by issuing process for presence of petitioners herein, has not committed any mistake, rather, it was mandatory for revisional Court to issue such summons in view of provisions of Section 401 (2) Cr.P.C.
r Section 401 (2)
Cr.P.C. reads as under:-
"401(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence"
17. There is basic difference between the issue involved in Tata Motors Ltd. case and in present case. In Tata Motors case private complaint was dismissed at pre-summoning stage in limine and the said dismissal was assailed by the complainant by filing a Revision Petition under Section 397 Cr.P.C. read with Section 401 Cr.P.C. in Delhi High Court and Revisional Court had not issued notice to respondents-proposed accused therein. However, during pendency of said Revision Petition, an application was filed, for intervention by respondents-proposed accused i.e. the persons against whom the original complaint was filed with prayer that said persons must be permitted to intervene and be impleaded as party respondents.
18. In Tata Motor case, revisional Court had not issued notice to proposed accused and proposed accused were asking for right to be heard before the revisional Court during hearing of Revision Petition. Whereas, in present case, Revisional Court has issued process against proposed accused for their presence during hearing of Revision Petition and the ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 10 Cr.MMO No. 238 of 2019 proposed respondents are opposing their summoning and case in hand is dealing with a situation converse to the situation in High Court in Tata Motors case. Proposed accused therein were seeking their impleadment in .
order to enable them to intervene and oppose the Revision Petition. Contrary to that, in present case, proposed accused are opposing their summoning by revisional Court, therefore, the ratio laid down in Tata Motors case by Delhi High Court is not applicable in present case in stricto sensu.
19. In any case, in pronouncement of Tata Motors case also Delhi High Court has recognized the right of hearing of such other persons or the accused against whom the criminal complaint has been filed in the eventuality of passing of an order in Revision Petition, which would be prejudicial to such persons or accused. However application of proposed accused was rejected by observing that the order, proposed by the said Court exercising the revisional powers, was only to place the complaint again before learned Magistrate for taking a decision afresh, whether any prima facie case was made out for proceedings against the proposed accused for the offences mentioned in the complaint and no direction was proposed to be issued to learned Magistrate to decide the complaint and even the existence of a prima facie case either one way or the other was proposed to be observed. Thus in such circumstances, it was held that when proposed order was not going to be prejudicial to the proposed accused-respondents, they (proposed accused/respondents) had no occasion to assert the right to be heard, which arises only when and if the revisional Court proposes to pass an order prejudicial to them. In this judgment it is nowhere held that revisional Court, in any eventuality, has no power to summon the proposed accused-respondents.
20. In present case, revisional Court has not expressed its view with respect to the proposed order to be passed and that stage may arrive only after hearing the parties. Further, Section 401(2) Cr.P.C. provides that ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 11 Cr.MMO No. 238 of 2019 no order shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. This provision makes it obligatory to the .
revisional Court to hear the person going to be prejudiced from the order passed by the Court. It does not say that where nature of order to be passed and fate of revision petition is yet to be decided and where there is no proposed order, the Court does not have power to summon the proposed accused/respondents. The provision does not prohibit the Court from summoning the proposed accused/respondents in revision petition even if revision petition is against an order passed by the Magistrate dismissing the complaint at pre-cognizance stage. Revisional Court is at liberty, for its order proposed to be passed, either to summon the proposed accused/respondents or not, but at the same time, there is nothing to create a bar to the Court to summon the proposed respondent even before such proposal of order.
21. Summoning of proposed accused in Revision Petition, like present one, cannot be said to be causing prejudice to the accused, rather it would be beneficial for such person by having opportunity to oppose the arguments advanced by and/or on behalf of complainant against dismissal of private complaint. No doubt there may be a case where revisional Court on the basis of material before it, may consider that there is no merit in the Revision Petition and in such eventuality there may not be any necessity to summon the opposite party. There may be a situation like Tata Motors case referred supra, where revisional Court may propose to pass an order to relegate the complainant to the trial Court at the pre-summoning stage, whereat the said complaint was dismissed, particularly for the reason that it would amount to restoration of complaint at the stage at which it was before the trial Court at the time of its dismissal. But even in such a case, if revisional Court decides to summon the proposed accused, it is not an ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 12 Cr.MMO No. 238 of 2019 impermissible or without jurisdiction act. Rather the Court has discretion to summon or not to summon the proposed accused at such stage.
22. In present case notices as well as non bailable warrants have .
been issued by the revisional Court against proposed accused to put forth their version before the said Court. Initially, the Court had issued notices and it is only, after finding ample evidence on record that petitioners were evading service of notice, non-bailable warrants were issued against them. Issuance of non-bailable warrants is off shoot of conduct of petitioners. After acquiring knowledge of process, petitioners were supposed to appear before the Court which had issued notice. They had to appear in person or through counsel as in revision petition personal presence is not necessary unless directed by the Court or requested by the person himself. But instead of engaging Advocate for their representation in revisional Court, petitioners opted to avoid the presence in the said Court when only notice was issued to them. Even after issuance of non-bailable warrants, petitioners, instead of putting appearance before the Revisional Court and praying for cancellation of non-bailable warrants, have approached this Court. On issuance of notice/summons the best course available with a person is to appear before the same Court and explain his position unless there is possibility of detention.
23. In aforesaid facts and circumstances, I find no irregularity or illegality in summoning the petitioners, as it would be better to summon the proposed accused at the first instance. Undoubtedly, the Court is supposed to issue process after going through the material placed before it, on considering that there is some arguable point in the issues raised on behalf of complainant, whose complaint has been dismissed by the trial Court.
24. Today the Courts are overburdened with case loads and instead of hearing the petitioners twice, in given facts and circumstances, where prima facie Court is of the opinion that there is likelihood of passing ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP 13 Cr.MMO No. 238 of 2019 an adverse order against the accused, it would be wastage of Court's time to hear the case twice, one before summoning the accused and secondly after summoning the accused.
.
25. In view of above discussion, I find no merit in Revision Petition and accordingly the same is dismissed.
26. Before parting with this case, I consider it appropriate to observe that at the time of summoning the respondent(s), more particularly in Criminal Cases, at the time of taking cognizance, at the time of issuing notices before pre-cognizance stage or in appeal or in Revision Petition, it is expected from the Presiding Officers to record their prima facie satisfaction with respect to the material placed before them, as sufficient for issuing notice to the respondent(s). Undoubtedly, there is presumption of passing an order in the manner in which it is required to be passed, but at the same time, the order for issuing process for presence of respondent(s) may not be elaborative, but must be unambiguous and speaking, manifesting reasons in summary only.
Present petition is dismissed in the aforesaid terms, with direction to the parties to appear before the Revisional Court i.e. Additional Sessions Judge-1, Solan, on 5th August, 2020 either in person or through counsel having valid power of Attorney and till then non-bailable warrants shall not be executed against them. Record be sent back immediately.
(Vivek Singh Thakur), st 1 July, 2020 Judge.
(Keshav) ::: Downloaded on - 01/07/2020 20:22:33 :::HCHP