Rajasthan High Court - Jaipur
Shakil @ Bablu vs State Of Rajasthan on 6 July, 2017
Author: G R Moolchandani
Bench: G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 48 / 1990
Shakil @ Bablu
----Appellant
Versus
State Of Rajasthan
----Respondent
_____________________________________________________ For Appellant(s) : None present For Respondent(s) : Mr. B.N. Sandhu AAG with Mr. Aladeen Khan PP _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment 06/07/2017 Per Kanwaljit Singh Ahluwalia, J.
The present appellant Shakil alias Bablu was tried by the court of Additional Sessions Judge No.5, Jaipur Metropolitan, Jaipur. The said court vide impugned judgment dated 31.1.1990 convicted the appellant for the offence under Section 302 IPC. Having convicted the appellant for the above said offence, the trial court vide a separate order of even date, sentenced the appellant to undergo life imprisonment.
A Division Bench of this Court on 8.2.1990 suspended the sentence awarded upon the appellant subject to furnishing personal bond and bonds by the two sureties to the satisfaction of Additional District and Sessions Judge No.5, Jaipur City, Jaipur.
Today, Mr. B.N. Sandhu, the learned Addl. Advocate General has filed a report No.5395 dated 6.7.2017 submitted by (2 of 5) [CRLA-48/1990] SHO, Police Station Kotwali, Jaipur. In the said report, it is stated that the accused appellant is absconding from the last 13 to 14 years. The report submitted by SHO, Kotwali, Jaipur reads as under:-
" Jheku jktdh; vf/koDrk jktLFkku mPp U;k;ky;
t;iqj fo"k; %& 'k[l 'kdhy mQZ cCyw dh rLnhd ldwur djus ckcrA izlax %& Jheku ds forUrq lans'k fnukad 5-7-2017 dh ds lanHkZ esaA egksn;] mi;qZDr fo"k; ,oa izlax esa fuosnu gS fd Jh larks"k dqekj m-fu- }kjk 'k[l 'kdhy mQZ ccyw iq= bdcky tkfr eqlyeku fuoklh >wysokyksa dk eksgYyk fQjnkSl efLtn ds ikl HkV~Vk cLrh ds ckjs esa ntZ lqnk irs ij tkdj ogka ds yksxksa ls iwNrkN dj ekywekr dh dksf'k'k dh xbZ rks bruk gh irk py Ikk;k fd mDr 'k[l 13&17 lky igys ogka jgrk FkkA vc og dgka gS] ftank gS ;k ugha] mlds fdlh ifjtu ds ckjs esa yksxksa us dksbZ tkudkjh ugha gksuk crk;kA 'k[l ds ckjs esa vkSj vf/kd tkudkjh ds fy, iqfyl Fkkuk HkV~Vk cLrh ls tkudkjh djus ij 'k[l iqfyl Fkkuk HkV~Vk cLrh dk ,p-,l- gksuk Kkr gqvk gSA ftldh ,p-,l- i=koyh dk voyksdu djus ij mDr 'k[l dk 13&14 lky ls Qjkj pyuk ik;k x;k gSA mDr 'k[l ds ckjs esa ;k mlds fdlh ifjtu ds ckjs esa Fkkus ij dksbZ tkudkjh miyC/k ugha gksuk crk;kA mDr 'k[l ftank gS ;k ugha bl ckjs esa Hkh dksbZ tkudkjh izkir ugha gksuk crk;kA fjiksVZ voyksdukFkZ izsf"kr gSA Hkonh;
Fkkukf/kdkjh iqfyl Fkkuk dksrokyh t;iqj ¼mRrj½ "
In view of the report submitted, issue standing non bailable warrant against the appellant We further direct the court of Additional Sessions Judge No.5, Jaipur City, Jaipur to forfeit the bonds submitted by the accused and the sureties. The court of Additional Sessions Judge uNo.5, Jaipur City, Jaipur after forfeiture of the bonds, shall initiate proceedings in accordance with the law to recover the (3 of 5) [CRLA-48/1990] amount from the sureties.
The court of Additional Sessions Judge No.5, Jaipur City, Jaipur shall execute the standing non-bailable warrant and in case same is not executed, the court shall initiate proceedings for declaring the appellant as proclaimed offender.
Supreme Court in the case of Surya Baksh Singh Vs. State of Utter Pradesh 2013 (4) RCR (Criminal) 880 observed as under: -
"1. This appeal brings to the fore the rampant manipulation and misuse of the statutory right to appeal by an ever increasing number of convicts who take recourse to this remedy with the objective of defeating the ends of justice by obtaining orders of bail or exemption from surrender, and thereupon escape beyond the reach of the law. Jural compulsions now dictate that this species of appeals should be consciously dismissed on the ground of occasioning a gross abuse of the judicial process and an annihilation of justice. The need to punish every transgressor of the law is ubiquitously accepted in all legal persuasions throughout the ages. Kautilya's Arthasastra opines that - "By not punishing the guilty and punishing those not deserving to be punished, by arresting those who ought not to be arrested and not arresting those who ought to be arrested; and by failing to protect subjects from thieves etc. through these causes - decline, greed and dis-affection are produced among the subjects. It is punishment alone which maintains both this world and the next." In similar antiquity it has been observed by Plato in his celebrated treatise Laws "....not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evil-doing". In the present time, and from another segment of the globe the necessity of punishment has been articulated thus - "By enforcing a (4 of 5) [CRLA-48/1990] public system of penalties government removes the grounds for thinking that others are not complying with the rules. For this reason alone, a coercive sovereign is presumably always necessary, even though in a well- ordered society sanctions are not severe and may never need to be imposed. Rather, the existence of effective penal machinery serves as men's security to one another"
- A Theory of Justice by Rawls.
2. It is necessary to distinguish dismissal of appeals in instances where steps have been taken by the Court for securing the presence of the Appellant by coercive means, including the issuance of non-bailable warrants or initiation of proceedings for declaring the Appellant a proclaimed offender by recourse to Part C of Chapter VI of the Code of Criminal Procedure, 1973 (Cr P C for short) on the one hand, and those where the Appellant may incidentally and unwittingly be absent when his appeal is called on for hearing. The malaise which we are perturbed about is the willful withdrawal of the convict from the appellate proceedings initiated by him after he has succeeded in gaining his enlargement on bail or exemption from surrender".
Relying upon the case of Surya Bakash Singh (supra), this Court, in the case of Hori Lal vs. State of Rajasthan, DBCRLA No.253/2004, decided on 17.3.2015, observed that it is not efficacious in case of accused who is absconding to appoint Amicus Curiae. In case of Hori Lal (supra), this Court observed as under:-
"However, a piquant situation has arisen, if the appeal is decided by hearing the amicus curiae, and the appellant is acquitted, then, it promotes tendency among the prisoners to avail parole, and desert the Courts, and in case the appeal is dismissed, it causes breach of principles of natural justice, as neither the convict nor his counsel is present before the Court."
(5 of 5) [CRLA-48/1990] In view of above, we dispose of the present appeal with the direction to Director General of Police, Rajasthan to take all active steps to apprehend the appellant and submit periodic reports regarding the efforts made to apprehend the appellant before Registrar General of this Court. Registrar General of this Court shall also seek periodic report from the court of Additional Sessions Judge, No.5 Jaipur Metropolitan, Jaipur regarding apprehension of the appellant and his declaration as proclaimed offender. However, we grant liberty to the appellant to revive the appeal by filing an application after he is arrested or surrender and is confined in jail.
(G R MOOLCHANDANI)J. (KANWALJIT SINGH AHLUWALIA)J. Mak/-