Delhi District Court
Sh. Gurdial Singh Dhaliwal vs State on 18 January, 2016
...1/
IN THE COURT OF SH. R. B. SINGH ASJ02 NORTH DISTRICT,
ROHINI COURTS, DELHI.
CR No. 33/2015
Sh. Gurdial Singh Dhaliwal,
S/o Late Sh. Pyara Singh,
R/o Gurudwara Hargobindsar Sahib,
G.T. Karnal Road, Nangli Poona,
Delhi. .......Revisionist / Petitioner
Versus
STATE .....Respondent
O R D E R
By this order, I propose to dispose of a revision petition under Section 397 / 399 Cr.P.C for setting aside of the impugned order dated 25.06.2015 passed by the court of Sh. Kapil Kumar, ld. M.M., Rohini Courts, Delhi.
2. Brief facts for the disposal of the revision petition are as under :
There was one saint Gurmail Singh, the real brother of the complainant Gurdial Kaur and the petitioner / revisionist Gurdial Singh. CR No. 33/15 Gurdial Singh Vs. State Page No. 1 of 16 ...2/ Gurdial Kaur was married to Malkiat Singh in Punjab and has been living there. Saint Gurmail Singh has died. The complainant Gurdial Kaur gave a complaint to P.S. Adarsh Nagar wherein she stated that the revisionist / petitioner had withdrawn the whole money i.e. Rs.5,71,112/ from the account of Saint Gurmail Singh and she alleged that she had half share in that withdrawn amount. During investigation it was revealed that the revisionist / petitioner had withdrawn Rs.5,71,112/ from account No. 3838, Canara Bank, Azadpur, pertaining to Saint Gurmail Singh. Although Gurmail Singh had bequeathed the properties in favour of the revisionist / petitioner but during the arguments on anticipatory bail application on 09.10.2006 before the Hon'ble High Court of Delhi, the revisionist / petitioner offered to deposit the alleged half share of the complainant so the revisionist / petitioner handed over Rs. 2,96,377/ in the Hon'ble High Court of Delhi to the complainant vide order dated 16.10.2006. The revisionist / petitioner was admitted to anticipatory bail vide order dated 18.10.2006. However, in the said bail order, the revisionist / petitioner was directed to deposit his passport with the IO and the condition was put upon him that he shall not leave the country and except with the prior permission of the ld. Trial Court. In compliance of the bail order the petitioner deposited his passport with the IO. The petitioner filed an application before the Trial Court for permission to go CR No. 33/15 Gurdial Singh Vs. State Page No. 2 of 16 ...3/ to Toronto, Canada where his whole family is residing and he had to go there for his treatment also. On 13.05.2008 the petitioner was allowed to visit Toronto. After coming back the petitioner deposited his passport with the IO. Thereafter, the petitioner again applied for permission of the ld. Trial Court and the ld. Trial Court allowed him to visit Toronto for 4 months vide order dated 26.02.2009 on the condition of furnishing bank guarantee of Rs. 4,00,000/ and further condition that intimation would be given to the Revenue Assistant to the effect that the property of the petitioner at Village Siraspur and Nangli Poona be not disposed off or transfer to any other person without any prior permission of the court.
The petitioner visited Toronto and came back within the stipulated time and deposited his passport with the IO. That the petitioner again applied for permission for visiting Toronto and the Trial Court allowed him third time vide order 10.11.2009 for 4 months. They stay in Canada was extended by the ld. Trial Court upto 21.07.2010 vide order dated 05.04.2010. The petitioner visited Toronto and came back within the stipulated time and deposited his passport with the IO. The petitioner again applied for permission for visiting Toronto and the ld. Trial Court allowed him fourth time vide order 06.09.2010 for 6 months. The physical condition of the petitioner deteriorated and the permission was extended upto 31.10.2011 vide order dated 06.04.2011 and due to CR No. 33/15 Gurdial Singh Vs. State Page No. 3 of 16 ...4/ medical reasons the permission was extended upto 23.06.2012 vide order dated 31.10.2011 and on 23.06.2012 the permission was extended upto 15.12.2012. The health of the petitioner further deteriorated and he was exempted from the appearance by the Trial Court on 15.12.2012, 21.05,2013,03,12,2013 but the ld. Trial Court issued NBWs on 16.05.2014 which were cancelled on 14.08.2014. Further the ld. Trial Court again issued NBWs on 18.11.2014 which were cancelled on 26.01.2015. That the petitioner was critically ill so he was exempted from appearance on 29.01.2015 and further exempted on 16.05.2015. On 25.06.2015 exemption application was moved on behalf of petitioner stating the reason that he was totally bed ridden and was not in a position to travel for 18 hours. There was also a marriage of his grandson on 04.07.2015 but ld. Trial Court dismissed the application and issued NBWs against the petitioner and the Revenue Assistant was also intimated in terms of the order dated 24.02.2009 so that the land of the petitioner be not disposed off or transferred to third person. Feeling aggrieved with the order of ld. M.M. dated 25.06.2015 the petitioner prefers to file the revision petition for the redressal of their grievances. Hence, this revision petition on the following grounds :
i) That the impugned order is arbitrary and unlawful.
ii) That the impugned order is erroneous and bad in law. CR No. 33/15 Gurdial Singh Vs. State Page No. 4 of 16 ...5/
iii) That the impugned order is based on conjectures and surmises.
iv) That the petitioner is an old age person aged 90 years (24.09.2025) and has been suffering from multiple strokes / medical problems and he is unable to travel back to India. There is great apprehension that the petitioner would die abroad.
v) That the absence on the part of the petitioner was not intentional but due to the reason mentioned above beyond his control.
vi) That the petitioner has no objection if the trial takes place in his absence as there is no dispute of his identity and the counsel of the petitioner would appear on his behalf and the petitioner would accept all the proceedings of the ld. Trial Court conducted in his absence.
vii) That the petitioner undertakes to appear before the Trial Court as and when his medical condition allows.
viii) That the present matter is a petty issue between brother and sister and the petitioner has already paid Rs. 2,96,377/, the alleged cheated amount to the complainant. Even the complainant is very old and she did not turn up CR No. 33/15 Gurdial Singh Vs. State Page No. 5 of 16 ...6/ before the Trial Court on 25.06.2015 which shows she has no interest in pursuing the matter.
ix) That the petitioner belongs to a respectable family. He has the property worth Rs. 50 crores in Delhi. So, there is no chance of his absconding.
x) That if the NBWs issued against the petitioner are not cancelled and the intimation given to the Revenue Assistant is not withdrawn it would be a miscarriage of justice.
xi) That the petitioner has a clean record.
xii) That the vakalatnama has been got signed from the
petitioner through mail.
xiii) That the petitioner craves leave of the Hon'ble court
to raise any other ground with the permission of the court. Under the aforesaid facts and circumstances of the case, it is, therefore, prayed that the orders dated 25.06.2015 passed by the ld. MM Sh. Kapil Kumar, Rohini Courts, Delhi may be set aside and the petitioner/revisionist be allowed permanent injunction during trial in the interest of justice.
CR No. 33/15 Gurdial Singh Vs. State Page No. 6 of 16 ...7/
3. On the contrary, ld. Addl. PP for the State / respondent has submitted that the order dated 25.06.2015 passed by the ld. Trial Court of Sh. Kapil Kumar, ld. MM Rohini Courts, Delhi is a speaking and reasoned order which do not call for any interference and has been rightly pronounced under the facts and circumstances of the case as no illegality or impropriety has been committed while passing the order. It is, therefore, prayed that the revision petition may be dismissed with cost.
4. I have heard arguments on behalf of the revisionist and ld. Addl. PP for the State / respondent and perused the material on record carefully. Ld Counsel for the revisionist has relied upon the case laws i.e. AIR 1968 DELHI 2002 (v.55c.52) entitled as Munni Begum v. State and 2000 Crl.L.J 4264 of the Hon'ble High Court of Kerala entitled as Noorjahan v. T.T.Moideen and I have perused the same also.
5. It will be appropriate if the operative part of the impugned order of the ld. M.M. dated 25.06.2015 be reproduced for ready reference and the same is reproduced as under :
"Perusal of the record reveals that accused not appeared in the present matter for more than 5 years CR No. 33/15 Gurdial Singh Vs. State Page No. 7 of 16 ...8/ and repeated exemption of accused has been sought citing the medical problems of the accused. The Ld Predecessor of this court vide order dated 10.11.2009 allowed the accused to visit Canada for 4 months but since then he has not returned to India. Extension of time sought by the ld. counsel for the accused repeatedly. No further exemption could be granted to the accused as the proceedings of the case are on hold for around 5 years due to the misuse of liberty by the accused. In these circumstances exemption application is dismissed. Issue NBW against the accused and notice to his surety for NDOH . A copy of this order be sent to Revenue Assistant in view of order dated 24.02.2009 passed by ld. Predecessor of this court".
6. It will also be appropriate if the case law relied on behalf of the revisionist is discussed, which are as follows :
i) The Hon'ble High Court of Delhi in AIR 1968 DELHI 2002 (v.55c.52) in case entitled as Munni Begum Vs. State has ruled that : "It was a fit case in which the appearance of the accused be dispensed with at all future stages of the trial (including the stages of examination under S. 342 and of pronouncement of judgment) unless it became necessary to send her to jail in default of payment of fine which the Court might impose on her in the event of her being convicted of the offence for CR No. 33/15 Gurdial Singh Vs. State Page No. 8 of 16 ...9/ which she was being tried. AIR 1934 All 693(2) and AIR 1958 Cal 431, Dissented from; Caselaw discussed".
ii) In 2000 Crl.L.J 4264 in case entitled as Noorjahan Vs. T.T. Moideen the Hon'ble High Court of Kerala has ruled that : "In summons cases when the personal attendance of of the accused is exempted under Sec. 205 Cr.P.C., the plea of the counsel can be taken for and on behalf of the accused even if the plea is one of guilty. The question would be different when the accused in a warrant case seeks permission to allow the counsel to plead guilty or 'not guilty' for and on behalf of him when he appeared and was exempted from personal appearance under Sec. 317, Cr.P.C. So far as the plea if one of the not guilty, the Court has no further discretion to be exercised as the discretion already exercised in granting exemption would take in granting permission to the accused to have his plea of not guilty made through the counsel, as a plea of 'not guilty' in such cases is only procedural in nature".
"In all cases where exemption from the personal attendance is granted and where the plea is one of 'not guilty' the Court has only to allow the counsel to plead 'not guilty' for the accused, as such a plea is only of a procedural nature".
"Thus the Court has the discretionary power to exempt the personal appearance of the accused even in warrant cases and to have the plea CR No. 33/15 Gurdial Singh Vs. State Page No. 9 of 16 ...10/ of the counsel recorded for and on behalf of the accused, when he is specifically authorised for the purpose and in appropriate cases. If after considering all the aspects of the case, the Court holds that the personal attendance of the accused is not essential, the Court can dispense with the personal attendance of the accused and the plea of the counsel can be recorded and on the basis of such plea, the Court can either convict the accused or proceed with trial".
7. Upon hearing arguments and on the perusal of the material on the record reveals that the complainant Gurdial Kaur gave a complaint to P.S. Adarsh Nagar wherein she has stated that the petitioner had withdrawn the whole money i.e. Rs.5,71,112/ from the account of Saint Gurmail Singh and she alleged that she had half share in that withdrawn amount. Revisionist Gurmail Singh was granted anticipatory by the Hon'ble High Court of Delhi subject to deposit the half share of the complainant so the petitioner handed over Rs.2,96,377/ in the Hon'ble High Court of Delhi to the complainant vide order dated 16.10.2006. In the said bail order, the petitioner was directed to deposit his passport with the IO and the condition was put upon him that he shall not leave the country and except with the prior permission of the ld. Trial Court. In compliance of the bail order the petitioner deposited his passport with the CR No. 33/15 Gurdial Singh Vs. State Page No. 10 of 16 ...11/ IO. The petitioner has sought permission time and again from the Court to visit Toronto, Canada where his whole family is residing and lastly the petitioner again sought for permission for visiting Toronto and the ld. Trial Court has allowed him fourth time vide order dated 06.09.2010 for 6 months but the physical condition of the petitioner stated to have deteriorated and the permission was extended upto 31.10.2011 vide order dated 06.04.2011 and due to medical reasons the permission was extended upto 23.06.2012 vide order dated 31.10.2011 and on 23.06.2012 the permission was extended upto 15.12.2012. The health of the petitioner further deteriorated and he was exempted from the appearance by the Trial Court on 15.12.2012, 21.05,2013, 03.12.2013 but the Hon'ble Trial Court issued NBWs on 16.05.2014 which were cancelled on 14.08.2014. The petitioner was stated to be critically ill so he was exempted from appearance on 29.01.2015 and further exempted on 16.05.2015. On 25.06.2015 exemption application moved on behalf of petitioner was dismissed by the ld. Trial Court and the submissions regarding the revisionist/petitioner that the petitioner is totally bed ridden and is unable to travel for 18 hours from Canada to Delhi could not find favour and the ld. Trial Court has dismissed the application and issued NBWs. The Revenue Assistant was also intimated in terms of the order dated 24.10.2019 so that the land of the petitioner be not disposed off or CR No. 33/15 Gurdial Singh Vs. State Page No. 11 of 16 ...12/ transferred to third person. Hence, this revision petition.
8. After hearing arguments and on the perusal of the material on the record, this court is of the considered opinion that the order dated 25.06.2015 of the court of Sh. Kapil Kumar, ld. MM06, NorthDistrict, Rohini Courts, Delhi is liable to be setaside as this is a dispute between real brother and sister. The dispute between the parties is only qua Rs.5,71,112/ out of which half of the amount i.e. Rs.2,96,377/ has already been handed over to the complainant/sister of the revisionist. The offence U/S 420 of the IPC is also compoundable in nature with the permission of the Court. The revisionist / petitioner Gurdial Singh who is the real brother of the complainant Smt. Gurdial Kaur is stated to be aged person of about 90 years of age (24.09.1925) and has been suffering from multiple strokes/medical problems and is unable to travel back to India. There is a great apprehension that the petitioner would die abroad. The absence on the part of the petitioner does not appear to the court as intentional but the absence of the accused has happened only due to the serious illness and health problem of the revisionist which is beyond his control. The complainant Gurdial Kaur is herself stated to be an aged woman. The petitioner stated to be belonging to be a respectable family and he has a property worth Rs. 50 crores in Delhi and there is no chance CR No. 33/15 Gurdial Singh Vs. State Page No. 12 of 16 ...13/ of his absconding. His absence in the court has happened only due to his age i.e. 90 years of age and suffering from several old age deceased who is unable to travel 18 hour journey from Toronto, Canada to Delhi.
9. Ld. Counsel for the revisionist Sh. Mahavir Sharma who had been the counsel for the accused since beginning has undertook that the ld. Trial Court may proceed with the case in the absence of accused as the identity of the accused is not disputed and the accused may be exempted permanently during trial through counsel Sh. Mahavir Sharma or may be exempted on each date on filing of application for personal exemption through counsel explaining the health condition and inability to attend the Court. The Court appreciate the zeal of the ld. Trial Court for providing speedy justice in this case as the case is an old one. The case law on this aspect is also crystal clear as the Hon'ble High Court of Delhi in 1968 Delhi 2002 (v.55 c.52) has categorically ruled that "In summons cases personal appearance of the accused can be dispensed with under Sec.205 of the Cr.P.C. at all future stages of the trial (including the stage of examination of the accused and of pronouncement of judgment) unless it become necessary to send the accused to jail in default of payment of fine which the Court might impose on her in the event of the accused being convicted of the offence for which the accused was being tried". Even the CR No. 33/15 Gurdial Singh Vs. State Page No. 13 of 16 ...14/ personal appearance of the accused U/S 317 Cr.P.C. can be exempted in warrant cases as the Hon'ble High Court of Kerala in 2000 Crl.L.J 4264 in case entitled as Noorjahan Vs. T.T. Moideen has ruled that "The Court has the discretionary power to exempt the personal appearance of the accused U/S 317 Cr.P.C. even in warrant cases and to have the plea of the counsel recorded for and on behalf of the accused, when he is specifically authorised for the purpose and in appropriate cases. If after considering all the aspects of the case, the Court holds that the personal attendance of the accused is not essential, the Court can dispense with the personal attendance of the accused and the plea of the counsel can be recorded and on the basis of such plea, the Court can either convict the accused or proceed with trial".
10. Under the aforesaid facts, circumstances and the discussion held above, the ld. Trial Court may start with the trial in the absence of the accused by liberally exempting the revisionist / accused on the following conditions :
i) The ld. Trial Court may start with the trial in the absence of the accused by liberally exempting the revisionist / accused through counsel Sh. Mahavir Sharma CR No. 33/15 Gurdial Singh Vs. State Page No. 14 of 16 ...15/ as the identity of the accused is not disputed on an application on each and every date explaining the health condition of the accused through counsel Sh. Mahavir Sharma.
ii) The ld. Counsel Sh. Mahavir Sharma shall assure the ld. Trial Court that he shall appear in the court in the absence of the accused on each and every date regularly and punctually and shall cooperate in the early disposal of the case as the case is an old one and shall not seek unnecessary adjournments.
iii) The revisionist / accused shall appear before the ld.
Trial Court when his health permit for travelling at the earliest and in any case at the time of judgment. If the revisionist / accused shall not appear in the court at the time of judgment also, the ld. Trial Court is to proceed in accordance with law, including the revival of the order dated 25.06.2015 of the ld. Trial Court.
11. Consequently, the order dated 25.06.2015 of the ld. Trial CR No. 33/15 Gurdial Singh Vs. State Page No. 15 of 16 ...16/ Court is setaside and the revision petition is allowed in the interest of justice with no orders as to costs. A copy of this order alongwith the ld. Trial Court Record be sent back to the ld. Trial Court for necessary action at his end. The revisionist alongwith his counsel are directed to appear before the ld. Trial Court for further necessary action at his end on 25.01.2016 at 2.00 PM. Ahlmad of this court is directed to send the ld. Trial Court Record alongwith copy of the order forthwith to the ld. Trial Court.
12. The revision petition file be consigned to Record Room.
Announced in open court ( R. B. SINGH )
Dated: 18.01.2016 Addl. Sessions Judge02(North)
Rohini Courts : Delhi/ 18.01.2016
CR No. 33/15 Gurdial Singh Vs. State Page No. 16 of 16