Madhya Pradesh High Court
Manish Sharma vs The State Of Madhya Pradesh on 31 July, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 31 st OF JULY, 2023
WRIT PETITION No. 15776 of 2023
BETWEEN:-
MANISH SHARMA S/O SHRI SATYA NARAYAN, AGED
ABOUT 66 YEARS, OCCUPATION: THROUGH SATYA
NARAYAN S/O LATE BALBIR SINGH POWER OF
ATTORNEY HOLDER OCCUPATION PRIVATE JOB 894/23
HIRA NAGAR KHANDSA ROAD GURGAON HARYANA
(HARYANA)
.....PETITIONER
(BY SHRI ARUN SINGH - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION MAHILA THANA BHOPAL
DISTRICT BHOPAL (MADHYA PRADESH)
2. SHRUTI KUMAR W/O MANISH SHARMA R/O MIG
13/A, SECTOR RAJIV NAGAR, AYODHYA BYPASS,
BHOPAL (MADHYA PRADESH)
3. DEPUTY COMMISSIONER OF POLICE URBAN
POLICE, POLICE HEADQUARTERS, JAIL ROAD,
JAHANGIRABAD, BHOPAL (MADHYA PRADESH)
4. THE SHO MAHILA THANA BHOPAL (MADHYA
PRADESH)
5. INVESTIGATION OFFICER, MAHESH GOTAM
ASSISTANT STATION INSPECTOR MAHILA
THANA, BHOPAL (MADHYA PRADESH)
6. DEPUTY DIRECTOR (IMMIGRATION)
INTELLIGENCE BUREAU, MINISTRY OF HOME
AFFAIRS NEW DELHI (DELHI)
.....RESPONDENTS
(BY SHRI LALIT JOGLEKAR - GOVERNMENT ADVOCATE)
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 8/3/2023
11:01:57 AM
2
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition is filed by the petitioner assailing the order dated 10.05.2022 (Annexure P/4) by which, while declaring petitioner to be absconding, charge- sheet in terms of Section 299 of Cr.P.C. has been filed.
2. It is contended by the counsel for the petitioner that a case against the petitioner under Section 498A, 323 & 34 of IPC and Section 3 and 4 of Dowry Prohibition Act has been registered by Mahila Thana Bhopal vide Crime No. 50/2022. It is further contended by the counsel for the petitioner that earlier also the petitioner was confronted with Look Out Circular (in short LOC) dated 02.05.2022, which was assailed by the petitioner by filing W.P. No. 7614/2023,and ultimately, as the period of LOC was expired during pendency of the petition, the said petition was dismissed as infructuous. It is contended by the counsel for petitioner that by impugned order dated 10.05.2022, challan has been filed while declaring the petitioner to be absconding in complete violation of the provision of Section 105 of Cr.P.C. It is contended by the counsel that in terms of Section 105 of Cr.P.C. if any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters, it may send such summons or warrant in duplicate to such authority for transmission, as the Central Government may, by notification, specify in this behalf. It is contended by the counsel that in terms of the aforesaid provision, notification has been issued by the Central Government dated 04.12.2019. In terms of the aforesaid, notice and summons which are required to be issued under Section 105 of Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 8/3/2023 11:01:57 AM 3 Cr.P.C.are to be addressed to Under Secretary (Legal Cell) Internal Security to Divisional Ministry of Affairs, New Delhi. Accordingly, the said authority is further obliged to take initiative of affecting summons and notices upon the parties staying abroad. It is contended by learned counsel that without ensuring the compliance of Section 105 of Cr.P.C. as well as the notification, the impugned order has been issued. Learned counsel for the petitioner relied upon the judgement delivered by Delhi High Court reported in ILR (2012) IV DELHI 234 (Swiss Timing Ltd. Vs. CBI & Anr.)
3. Per contra, learned counsel for the respondents submits that petitioner is absconding since long and earlier as well LOC was issued. Despite the LOC, the petitioner, did not appear. It is contended that though the validity of LOC has already been expired, but the petitioner remained absconded throughout and the Authority has not committed any error in filing the challan by declaring the petitioner absconding in terms of Section 299 of Cr.P.C.
4. Having heard learned counsel for parties.
5. Section 105 of Cr.P.C. provides as under:-
"105. Reciprocal arrangements regarding processes.
(1) Where a Court in the territories to which this Code extends (hereafter in this section referred to as the said territories) desires that-
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or
(d) a search- warrant, 2 issued by it shall be served or executed at any place,-
(i) within the local jurisdiction of a Court in any State or area in India outside the said territories, it may send such Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 8/3/2023 11:01:57 AM 4 summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause
(a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the Court to whom it is sent were a Magistrate in the said territories;
(ii) in any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters (hereafter in this section referred to as the contracting State), it may send such summons or warrant in duplicate in such form, directed to such Court, Judge or Magistrate, and sent to such authority for transmission, as the Central Government may, by notification, specify in this behalf. (2) Where a Court in the said territories has received for service or execution-
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing or to produce it, or
(d) a search- warrant, 1 issued by--
(I) a Court is any State or area in India outside the said territories;
(II) a Court, Judge or Magistrate in a contracting State, it shall cause the same to be served or executed as if it were a summons or warrant received by it form another Court in the said territories for service or execution within its local jurisdiction; and where-
(i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with procedure prescribed by sections 80 and 81, Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 8/3/2023 11:01:57 AM 5
(ii) a search- warrant has been executed, the things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by section 101:
[ Provided that in a case where a summons or search warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the Court issuing the summons or search warrant through such authority as the Central Government may, by notification, specify in this behalf.]"
6. A perusal of the aforesaid provision reflects that, eventuality of affecting service of summons outside the country is permissible only when there are arrangements made with the other country and such an arrangement has to be in existence in order to effect service of notice or summons to the person living in the territories of those countries. In absence of any arrangement, the provision of Section 105 of Cr.P.C. cannot be taken recourse of. Moreover, provision of Section 105 (1)(ii) of Cr.P.C. nowhere reflects that the same are mandatory. It is evident from the perusal of Section 105(1)(ii) of Cr.P.C., that the court may send such summons or warrant in duplicate, to such authority for transmission, as the Central Government may, by notification, specify. This provision is applicable only when there is an arrangement between Government of India with the other country in which person concerned is residing.There is no averment in the entire petition as to whether there is any arrangement between India and Denmark where the petitioner is residing.
7. The judgment relied upon by the learned counsel for petitioner reported in ILR (2012) IV DELHI 234 (Swiss Timing Ltd. Vs. CBI & Anr.) does not deal with the mandatory force of Section 105 (1)(ii) of Cr.P.C.
Signature Not VerifiedAccordingly, the same is distinguishable.
Signed by: ARVIND KUMAR MISHRA Signing time: 8/3/2023 11:01:57 AM 68. Accordingly, as this court does not find any merit in this petition, the same stands dismissed.
(MANINDER S. BHATTI) JUDGE MISHRA Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 8/3/2023 11:01:57 AM