Delhi District Court
Jimble Mathew vs . State on 30 January, 2018
CA No.635/17
Jimble Mathew Vs. State
30.01.2018
ORDER
1. Vide this order I shall decide criminal revision filed under Section 397 read with Section 403 Cr. P.C filed by Jimble Mathew seeking setting aside of order dated 13.11.2017 passed by Ld.ACMM, SE, Saket Courts, New Delhi whereby the Ld. ACMM, declared the revisionist as proclaimed offender and order dated 22.11.2017 whereby he dismissed the application seeking cancellation of NBWs.
2. It is stated in the revision that the revisionist is a resident of Jeddah, United Arab Emirates since October 2016 that is prior to the registration of FIR and the said fact is also mentioned in his anticipatory bail application and was well within the knowledge of the IO of the case who got the NBWs as well as the proclamation under Section 82/83 Cr.P.C issued and served upon the father of the revisionist at Kerala and got him declared as proclaimed offender. It is stated that the revisionist was granted interim bail by Ld. ASJ in the FIR. Thereafter, IO served two days notice at the residence of his father for joining the investigation and was informed that revisionist is not residing at the address and also provided a new address to the IO. Since, the revisionist was at Jeddah, United Arab Emirates, he could not join the investigation resulting in dismissal of the anticipatory bail application. Thereafter, on 01.07.2017 IO applied for NBWs stating that she searched for the revisionist at all possible places but he could not be found whereupon the Ld. ACMM mechanically issued the NBWs against CA No. 635/17 Jimble Mathew Vs. State 1/12 the revisionist. Thereafter, on 17.08.2017, IO moved an application seeking proclamation under Section 82 Cr. P.C stating in the application that he was not found at the given address and concealing himself from arrest. She did not disclose the address of Jeddah,Saudi Arabia in the said application and Ld. ACMM without recording the reasons that the accused has absconded and concealed himself which is the sinequanon for issuance of process under Section 82 Cr. P.C issued the process under Section 82 as well as 83 Cr.P.C, though, the IO had sought only the process under Section 82 Cr. P.C. Again on 23.08.2017, IO moved an application seeking for extension of the time for completing the publishing of proclamation at Kerala which could not be done due to non availability of railway reservation at Kerala, Ld. ACMM allowed the said application and extended the date of application of issuance of proclamation under Section 82/83 Cr.P.C till 26.10.2017 and it is stated that ultimately on 13.11.2017, after recording the statement of process server, the order was passed declaring the revisionist as Proclaimed Offender. Thereafter, the revisionist moved an application seeking cancellation of NBWs and cancellation of proclamation order which was dismissed on 22.11.2017. The main crux of arguments of Ld. Counsel for revisionist are that the process under Section 82/83 Cr.P.C cannot be issued simultaneously and the Ld. ACMM has not recorded the satisfaction that the revisionist has absconded and concealing himself and as such without the reasons, the order is bad in law and liable to be set aside. In this regard, he has cited the case laws as under:
1. Sunil Kumar vs. State and another, 2001 (60) DRJ 657;
2. Rohit Kumar@ Raju vs. State of NCT of Delhi through CA No. 635/17 Jimble Mathew Vs. State 2/12 Standing counsel & ors, 2007 (98) DRJ 714;
3. G.Sagar Suri v State and another, ILR (2003) Delhi 87.
5. On the other hand Ld. APP for State has argued that order is rightly passed. It is stated that accused is evading the process of the Court which is clear from the fact that even after getting interim bail he did not appear for investigation before the IO despite service of notice at his Kerala address. It is stated that on account of his nonappearance, his anticipatory bail application was even dismissed by the Session Court. It is stated that though it is correct that the reasons are not reflected in the order but the conduct of the revisionist warranted the passing of the order which is an appropriate order. Ld. APP for State has cited the case law Deeksha Puri vs. State of Haryana, 2012 SCC OnLine P &H 20122: (2013 )1 RCR (Crl)159 (2).
6. I have heard the submission and have perused the order. Before passing the order it is necessary to go through the necessary provisions of process under Section 82/83 Cr. P.C which are as under:
82. Proclamation for person absconding. (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has bee 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 thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows: CA No. 635/17 Jimble Mathew Vs. State 3/12
(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 Courthouse;
(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 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 subsection (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 subsection(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 CA No. 635/17 Jimble Mathew Vs. State 4/12 proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.] [(5) The provisions of subsections (2) and (3) shall apply to a declaration made by the Court under subsection (4) as they apply to the proclamation published under sub section (1).]
83. Attachment of property of person absconding. (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:
Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.
(2) Such order shall authorise the attachment of any property belonging to such person within the district in CA No. 635/17 Jimble Mathew Vs. State 5/12 which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.
(3) if the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent on delivering of property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks CA No. 635/17 Jimble Mathew Vs. State 6/12 fit.
(5) If the property ordered to be attached consists of live stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).
7. It is settled law that while issuing the process under Section 82/83 Cr.P.C the Court is duty bound to record the satisfaction that the warrants against the petitioner cannot be served as he is concealing himself. No such satisfaction is recorded by the concerned Court either at the time of the issuance of NBWs on 01.07.2017 or at the time of issuance of process under Section 82/83 Cr.P.C on 17.08.2017 as well as on 23.08.2017. The orders passed by Ld. MM are given below: Order dated 01.07.2017 Present: IO in person.
Heard. NBW be issued against accused for 17.08.2017.
Order dated 17.08.2017 Present: IO.
Heard.
Process u/S 82/83 Cr. P.C be issued for 26.09.2017.
CA No. 635/17 Jimble Mathew Vs. State 7/12
8. On application for extension of date of 82/83 Cr. P.C the Court has again passed an order on 23.08.2017 which is as follows: Present: WSI Seema.
Heard. Perused.
Process u/S 82/83 Cr. P.C be issued for 26.10.2017.
9. Hence, it is clear that in none of the order passed by Ld. Trial Court, the satisfaction is recorded that the accused is absconding or is concealing himself.
10. In the case of Sunil Kumar (Supra) Hon'ble Delhi High Court was faced with a similar situation wherein Ld. Trial Court had passed the similar order issuing the process under Section 82/83 Cr.P.C and after referring to the orders, the Court had held: "5. Mere perusal of the Section 82 shows that before a proclamation can be issued, the court should have reasons to believe( whether after taking evidence or not), that a person against whom a warrant was issued has absconded or is concealing himself and that the warrant cannot be executed, it may be subjective satisfaction but it cannot be totally without any material. Only after recording such satisfaction, the Court can direct the publication of a written proclamation requiring such person to appear at a specified place within the period, not less than 30 days from the date of said publication. Sub clauses (a), (b) and (c) of clause(i) of subsection (2) of Section 82 provide that the manner in which proclamation should be published, by reading it in some CA No. 635/17 Jimble Mathew Vs. State 8/12 conspicuous place of the town, by affixing it on some conspicuous part of the house where the person ordinarily resides, and by affixing on some conspicuous part of the court house. Subclause (2) also provides that if the court thinks fit, the proclamation can be published in some daily newspaper, circulating in the place in which such person ordinarily resides. Lastly, subsection (3) of Section 82 states that a statement in writing by the court issuing proclamation to the effect that the proclamation was duly published on the specified day in the specified manner in clause (i) of subsection (2) would be deemed to be conclusive evidence that the requirements of Section were complied with.
6. Section 83 provides for attachment of property of the person absconding. The court issuing proclamation under Section 82 Cr.P.C. may, for the reasons recorded in writing, at any time after issuing of proclamation, order attachment of any property movable or immovable or both the proclaimed person.
9. The orders clearly show that while issuing process under Section 82/83 Cr.P.C, the court did not record satisfaction that the warrants against petitioner cannot be served or that he is concealing himself. In fact, no effort was made to serve the petitioner at the address given in the FIR itself. There is nothing to show that summons were ever attempted to be served on the petitioner through Ministry of External Affairs at Muscat. The orders appear to have been passed without CA No. 635/17 Jimble Mathew Vs. State 9/12 any application of mind. Further on 24.09.1996, the next date fixed for appearance of the accused was 04.10.1996 which was again the mandate of law. Section 82 Cr.P.C. requires that the date of appearance of the accused should not be less than 30 days from the date of the publication. The instructions to the criminal courts as contained in Chapter 15 of Part V of Delhi High Court Rules are also to the same effect. The proclamation under Section 82(2) Cr.P.C in addition to the ordinary mode of service can also be ordered to be published in a newspaper where the person is ordinarily residing. In such like cases, trial court should order the publication in an appropriate newspaper in addition to the other modes as provided under the Section. Thus, the petitioner was declared proclaimed offender in violation of Section 82 Cr.P.C. it is settled law that "where a power is given to do a certain thing in a certain way, the thing must be done that way or not at all. Other methods of performance are necessarily forbidden" (Nazir Ahmed v. King Emperor, AIR 1936 PC 253)."
11. Similar observations are made in the case of Rohit Kumar (Supra) and G.Sagarsuri (supra) wherein it is mentioned that it is mandatory for the Court to record reasons in writing before issuing the warrants or the process under Section 82/83 Cr. P.C. In the Case G.Sagarsuri (Supra) the Court has observed: "13. It is manifest from the provisions of Section 82 Cr.P.C that before publishing the written proclamation requiring the CA No. 635/17 Jimble Mathew Vs. State 10/12 accused to appear under the provisions of Section 82 Cr.P.C, the court has to record the reasons either after taking evidence or without evidence that a person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed. The procedure for publication of the proclamation is laid down in subsection (2) of Section 82. Subsection (1) provides that the Court shall wait for thirty days after publication of the proclamation for the appearance of the accused and it is only after processesunder Section 82 Cr.P.C are exhausted that the next step under Section 83 is to be taken by the Court.
14. Section 83 enjoins upon the court to record the reasons in writing for ordering the attachment of any property belonging to the person who has been proclaimed as an offender under Section 82 Cr.P.C. Even the order of attachment of property has two prerequisites. Firstly the court has to satisfy itself either by affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to dispose of whole or any part of the property or secondly that he is about to remove whole or part of the property from the local jurisdiction of the court. Thus the orders passed by learned MM in this regard suffer from gross illegality and inherent infirmity."
12. Hence, in the light of law pronounced by Hon'ble High Court of Delhi in the above mentioned cases it is clear that the reasons CA No. 635/17 Jimble Mathew Vs. State 11/12 are required to be given by ld.Trial court while issuing the process under Section 82/83 Cr. P.C and since, in the present case Ld. Trial Court has not given any reasons of its satisfaction, the order issuing proclamation dated 13.11.2017 declaring the revisionist as Proclaimed Offender is set aside being non speaking. The revision petition is allowed.
Revision file be consigned to record room. Copy of order be sent to the Ld. Trial Court.
(Renu Bhatnagar) ASJ(Spl. FTC) South East, Saket Court 30.01.2018 CA No. 635/17 Jimble Mathew Vs. State 12/12