Delhi District Court
Yash Dev Singh Sejwal vs The State (Govt. Of Nct Of Delhi) on 8 July, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 33/2022
CNR No.: DLCT01-001181-2022
Yash Dev Singh Sejwal
S/o Late Randhir Singh Sejwal
R/o Schaapstrat 23, 8370, Blankenberge,
Belgium
..... Petitioner
VERSUS
The State (Govt. of NCT of Delhi)
..... Respondent
Date of Institution : 21.01.2022
Date of Arguments : 06.07.2022
Date of Judgment : 08.07.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 17.12.2021 (In short 'the impugned order') arising from FIR No. 146/2002 under Section 498A/406/420 of 'The Indian Penal Code, 1860' (In short 'IPC') registered at PS Civil Lines titled as 'State vs. Yash Dev Singh Sejwal & Ors.' whereby Ld. MM (Mahila Court)- 04, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') dismissed an application filed by the petitioner seeking cancellation of NBW issued against him on 22.03.2005 and setting-aside order dated 05.02.2011 whereby he was declared as 'proclaimed offender'.
Crl. Rev. No. 33/2022 Yash Dev Singh Sejwal vs. State Page No. 1 of 12 BRIEF FACTS:
2. The petitioner was married to the complainant on 23.10.2000. The complainant filed a complaint against the petitioner and his family members alleging therein that the petitioner concealed his previous marriage and daughter from the petitioner at the time of marriage and the petitioner and his family members subjected the complainant to mental and physical cruelty for or in connection with demand of dowry and evicted her from her matrimonial home. There are allegations that the petitioner made false representation regarding his nationality, citizenship and residence at the time of marriage. Pursuant thereto, FIR No. 146/2002 under Section 498A/406/ 420 IPC registered at PS Civil Lines on 27.05.2002. After investigation, charge-sheet was filed against the petitioner and his family members on 22.03.2005.
3. The trial Court, vide order dated 22.03.2005, issued NBW against the petitioner. NBW could not be executed against the petitioner leading to initiation of extradition proceedings against him vide order dated 10.01.2006. The petitioner did not appear and eventually, process under Section 82 Cr.P.C. was initiated against him vide order dated 24.11.2010. After execution of process under Section 82/83 Cr.P.C., the petitioner was declared proclaimed offender vide order dated 05.02.2011. The trial Court framed charges against his family members vide order dated 26.02.2011. The petitioner's sisters and brothers-in-law were discharged by revisional Court.
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4. The petitioner's mother expired on 29.05.2013 and his father expired on 14.08.2013. The trial Court examined as many as 9 witnesses under Section 299 Cr.P.C.
5. The petitioner filed Crl. M.C. 910/2020 titled as 'Yash Dev Singh Sejwal vs. State & Ors.'. Hon'ble High Court of Delhi, vide order dated 27.10.2021, directed the petitioner to approach the trial Court for appropriate remedy, as under:
"4. Therefore, it is clear that there is no Red Corner Notice issued and LOC proceedings have also not been initiated against the petitioner till date. In these circumstances, petitioner is not entitled to any relief in this regard. So far as PO proceedings are concerned, petitioner can move an application before the concerned trial court for appropriate remedy.
The application stands disposed of accordingly.
CRL. M.C. 910/2020 & CRL. M.A. 1982/2021 Since the petitioner has shown inclination of the petitioner to come to India within four weeks, till then no LOC proceedings be initiated and no Red Corner Notice be issued against the petitioner."
6. The petitioner filed an application before the trial Court seeking cancellation of NBW issued against him, vide order dated 22.03.2005, and setting aside of order dated 05.02.2011 declaring him as 'Proclaimed Offender'.
7. The trial Court, vide impugned order dated 17.12.2021, dismissed the said application observing that the petitioner was declared a proclaimed offender, vide order dated 05.02.2011 which has attained finality and the petitioner should approach Superior Court for appropriate remedy.
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8. The relevant part of the impugned order is as under:
"The above exceptions are not attracted in the present case. Moreover, once the accused was declared a proclaimed offender vide order dated 05.02.2011, the order attained finality and is thus, hit by the bar under Section 362 Cr.P.C. Further, the Hon'ble High Court of Delhi, vide its order dated 27.10.2021, granted leave to accused No. 1 to avail an appropriate remedy but the appropriate remedy in the present case is assailing the order dated 05.02.2011 which can only lie before a Superior Court for the reasons mentioned above.
Accordingly, the present application moved on behalf of the applicant / accused No. 1 stands dismissed."
9. Feeling aggrieved and dissatisfied with with the impugned order, the petitioner preferred the criminal revision petition.
10. I have heard Mr. Kunal Anand, Advocate for the petitioner, Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent and Mr. Raj Kumar, Advocate for the complainant and examined trial Court record.
11. Ld. Counsel for the petitioner contended that the trial Court committed patent error and failed to give finding on the defects in order dated 22.03.2005 and 05.02.2011. He contended that the petitioner is not accused of any offence mentioned under Section 82(4) Cr.P.C. and he could not be declared a proclaimed offender. He contended that the petitioner was never served with the summons of the case. He contended that the petitioner sent a letter dated 30.07.2019 disclosing his whereabouts and residence.
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12. Ld. Counsel for the petitioner contended that the trial Court despite having knowledge of last known address of the petitioner, illegally initiated proceedings under Section 82 Cr.P.C. against him vide order dated 24.11.2010. He contended that the petitioner could not visit India since 2001 and the present case was maliciously initiated against him. He contended that the complainant concealed her previous marriage and in that regard, the petitioner filed a complaint, vide CC No. 533164/2016, wherein the complainant was summoned for offences under Section 417/494/495/120B IPC vide order dated 02.05.2007. He contended that the complainant married with the petitioner without obtaining divorce from her earlier spouse. He contended that the petitioner was not residing in H. No. 24, Village Said Ul Ajab, Mehrauli, New Delhi on 05.02.2011. He contended that the petitioner was residing in Belgium at that time. He relied on judgment in Sanjay Bhandari vs. State (NCT of Delhi), CRL. REV. P 223/2018 decided on 31.07.2018 and Arun Kumar Parihar vs. State (Govt. NCTD), Crl. M.C. No. 863/2021 decided on 26.03.2021 to contend that Section 82(4) Cr.P.C. applies only in respect of persons accused of sections of IPC enumerated therein. He contended that the petitioner was never served with any summon or notice relating to this case and there was no occasion for issuance of NBW against him vide order dated 22.03.2005. He contended that order dated 22.03.2005 and 05.02.2011 deserve to be set-aside.
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13. Ld. Counsel for the complainant contended that the petitioner evaded process of law for more than 20 years. He contended that the petitioner never joined investigation or appeared before the trial Court. He contended that the trial Court committed no legal error in issuing NBW against him vide order dated 22.03.2005 and declaring him proclaimed offender vide order dated 05.02.2011. He contended that the petitioner shown inclination to come to India within four weeks, as noted in order dated 27.10.2021. However, he filed an application seeking cancellation of NBW and recalling of proceedings declaring him proclaimed offender on 16.12.2021. He contended that the petitioner had disposed off his all properties and shifted to Belgium, as noted in statement of process server recorded on 05.02.2011. He contended that Hon'ble High Court of Delhi, in W.P. (C) No. 12428/2004, observed that extradition proposal could not be taken up till framing of charges and the Court will examine question for framing of charges expeditiously, vide order dated 19.01.2007. He contended that Ld. Counsel for the petitioner, in C.R. No. 564/2003, had appeared before Hon'ble High Court of Delhi and stated that he would see that order dated 07.08.2003 directing 50% of arrears of maintenance granted by the trial Court is complied within two weeks, as noted in order dated 07.11.2003. He contended that the petitioner did not deposit 50% of arrears of rent, as noted in order dated 16.12.2003 in C.R. No. 564/2003. He contended that the petitioner never appeared during span of 20 years.
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14. Ld. Counsel for the complainant contended that the petitioner, in his affidavit filed in execution No. 58652/2016, disclosed his marital status as 'married' and 'four children'. He contended that the petitioner has married with a foreign national despite existence of his marriage with the complainant and has four children from that marriage. He contended that the petitioner is not entitled to any relief.
15. I have minutely examined voluminous trial Court record and lengthy petition and plethora of documents enclosed therewith and relied by the complainant.
16. The petitioner is accused of committing an offence under Section 498A/406/420 IPC. The said offences are not enumerated under Section 82 (4) Cr.P.C. Therefore, the petitioner could not have been declared as a proclaimed offender. This proposition of law is held by Hon'ble High Court of Delhi in Sanjay Bhandari (supra), as under:
"31. I am thus of the view that a person who is accused of offences other than the ones enumerated in section 82(4) and qua whom a proclamation has been published under section 81(1) would be a 'Proclaimed person' and not a deemed 'Proclaimed Offender'."
17. This Court does not find any merit in contention of Ld. Counsel for the petitioner that the Court did not observe procedural safeguard for issuance of NBW and consequent, proclamation against the petitioner.
18. The petitioner deliberately avoided the process of law despite having knowledge of the case.
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19. It may be noted that the petitioner filed a petition, vide C.R. No. 564/2003, before Hon'ble High Court of Delhi on 07.08.2003 wherein he was directed to deposit 50% of the arrears of maintenance, as under:
"Notice to the respondent for the date fixed. Subject to the petitioner depositing 50% of the arrears of maintenance amount granted by the learned trial court, in the Court within four weeks, without prejudice to the pleas and contentions of the parties, the operation of the impugned order shall remain stayed. The amount so deposited by the petitioner shall not be allowed to be withdrawn by the respondent without the leave of the Court.
A copy of the order be given dasti to the counsel for the petitioner."
20. The petitioner did not comply the said order and eventually, the said petition was dismissed on 16.12.2003.
21. The extradition proceedings were initiated against the petitioner as he did not appear, either before the investigating agency or the trial Court. Hon'ble High Court of Delhi, vide order dated 19.01.2007 in W.P. (C) 12428/2004, observed, as under:
"The Status Report dated 16.01.2007 has been perused which shows that necessary steps have been taken before the Mahila Court. It is recorded in the Status Report that the extradition proposal cannot be taken up till such time as the charges are framed in the case, which are undisputedly yet to be framed. The competent court now being seized of the matter and the respondents taking action in this behalf, no further directions can be issued in this petition and it is expected that the competent court will examine the question of framing of charges expeditiously. Petition stands disposed of."
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22. The petitioner sent a letter to the trial Court on or before 03.03.2009, as under:
"Finally I got divorce from Dutch court in The Hague on 25-03-2004, see document No. 7. She was also informed about it by registered post. She could never marry me because at the time of our marriage she was already married with another man and not actually divorced from him.
Since September 2004 I am living in Belgium, see address below.
At present it is financially not possible for me to visit India so herewith I request you to accept the divorce decision taken by the Dutch court, about which Kiran has been informed."
23. The petitioner entered into a settlement agreement with the complainant before Delhi High Court Mediation & Conciliation Centre on 17.09.2013.
24. The petitioner filed an application before the trial Court on 19.09.2013 for recalling of the impugned order wherein he had undertaken to appear before the trial Court. However, the said application was withdrawn on 03.01.2014. The relevant part of the said application is as under:
"6. That the accused / applicant is permanently settled in Belgium and genuinely / bonafidely intends to come to India and abide by terms of the settlement. The accused / applicant undertakes to appear before this Hon'ble Court as and when directed to do so.
PRAYER:
(d) give reasonable time to the accused / applicant to appear before this Hon'ble Court; and"
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25. The petitioner neither adhered terms of mediation settlement dated 17.09.2013 nor appeared before the trial Court. On holistic assessment of the proceedings, as noted above, it is evident that the petitioner was aware of the present case. However, he neither appeared before the investigating agency nor before the trial Court. At this juncture, it would be relevant to note that in C. R. No. 564/2003 instituted on 07.08.2003 before Hon'ble High Court of Delhi, the petitioner has given his local address as H No. 24, Village Said Ul Ajiab, Mehrauli, New Delhi-110030. This is the same address where NBW and therefore, process under Section 82/83 Cr.P.C. were sought to be executed. The petitioner evaded process of law for more than 20 years. There is no infirmity in the issuance of NBW against him. In Sanjay Bhandari (supra), Hon'ble High Court of Delhi held, as under:
"33. In view of the above, order dated 08.01.2018 declaring the petitioner as a proclaimed offender is not sustainable and is accordingly quashed to the said extent. However, this would not affect the status of the petitioner as a proclaimed person and would be without prejudice to the action initiated against the petitioner for failure to appear in terms of the proclamation issued."
26. In that view, criminal revision petition filed by the petitioner challenging NBW issued against him, vide order dated 22.03.2005, is dismissed. However, criminal revision petition challenging order dated 05.02.2011 declaring him 'proclaimed offender' is allowed to the extent that he is declared as 'proclaimed person'.
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27. Trial Court record alongwith a copy of judgment be sent to trial Court. Revision file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date:
2022.07.08
19:48:45 +0530
Announced in the open Court SANJAY SHARMA-II
on this 08th July, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
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Yash Dev Singh Sejwal vs. State
CNR No.: DLCT010011812022
Crl. Revision No. 33/2022
08.07.2022
Present : Mr. Kunal Anand, Advocate with Mr. Jai Batra, Advocate
for the petitioner.
Mr. Raj Kumar, Advocate for the complainant.
Vide separate judgment, criminal revision petition filed by the petitioner challenging NBW issued against him, vide order dated 22.03.2005, is dismissed. However, criminal revision petition challenging order dated 05.02.2011 declaring him 'proclaimed offender' is allowed to the extent that he is declared as 'proclaimed person'. The revision file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date:
2022.07.08
19:48:58 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
NK 08.07.2022
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