Himachal Pradesh High Court
______________________________________________________________ vs Of on 20 September, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr. Revision No. 105/2022
Decided on: 20.09.2023
______________________________________________________________
Ashoni Kanwar ....Petitioner
Versus
of
State of H.P.
_
...Respondent
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
rt
Whether approved for reporting?1
For the petitioner : Mr. N.S. Chandel, Senior
Advocate with Mr. Pranav
Sharma and Mr. Vinod K.
Gupta, Advocates.
For the respondent : Mr. Raj Kumar Negi, Additional
Advocate General.
Sushil Kukreja, Judge (oral)
The present petition under 397, read with Section 482 of the Code of Criminal Procedure has been filed by the petitioner for setting aside order dated 26.10.2021, passed by the learned Judicial Magistrate First Class, Court No. 1, Solan, H.P., in case FIR No. 27 of 2020, whereby proclamation under 1 Whether reporters of Local Papers may be allowed to see the judgment? .
::: Downloaded on - 21/09/2023 20:34:13 :::CIS 2Section 82 of Cr. PC has been issued against the .
petitioner and her daughter Aaina Rana.
2. Brief facts of the case are that on 08.03.2020, Secretary, H.P. Private Education Institutions Regulatory Commission made a of complaint to the Director General of Police, H.P. alleging therein that 103 degrees/diplomas issued by rt Manav Bharti University, Laddo, District Solan, H.P. have been found to be fake. On the basis of aforesaid complaint, an FIR was registered against Manav Bharti Foundation trust. The trust has two trustees out of which one is petitioner Ashoni Kanwar and other is Raj Kumar Rana, who is the husband of the petitioner. After the registration of FIR No. 27 of 2020, dated 08.03.2020, Raj Kumar Rana, being trustee, was arrested and later on was released on bail. The petitioner was also arrayed as an accused alongwith her husband, but she could not be arrested as at that time, she was in Australia with her son and daughter.
On 18.01.2021, the passport of the petitioner was ::: Downloaded on - 21/09/2023 20:34:13 :::CIS 3 cancelled on the request of Superintendent of Police, .
Cyber Crimes, CID Shimla, H.P., on the pretext that three FIRs, bearing number 22, 26 and 27 of 2020 have been registered against the petitioner, which action of the authority has been challenged by the of petitioner by filing CWP No. 6777 of 2021 before the High Court of Rajasthan at Jodhpur.
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3. On 15.12.2020, the respondent-State moved an application before the learned trial Court for issuance of non-bailable warrants against the petitioner as well as her daughter Aaina Rana, mentioning therein her address of India as per the application (Annexure P-5) and on the aforesaid application non-bailable warrants were ordered to be issued against the petitioner vide order dated 16.12.2020 (Annexure P-6). Subsequently, the respondent-State had moved an application before the learned trial Court to declare the petitioner as well as her daughter Aaina Rana as proclaimed offenders and vide order dated 26.10.2021, the ::: Downloaded on - 21/09/2023 20:34:13 :::CIS 4 learned trial Court had issued proclamation against .
the petitioner as well as her daughter Aaina Rana under Section 82 of Cr. PC to appear in the Court and vide order dated 03.01.2022, they were declared as proclaimed offenders.
of
4. Feeling aggrieved and dissatisfied, the petitioner preferred the present petition seeking rt quashing and setting aside of orders dated 26.10.2021 and 03.01.2022 (Annexures P-7 & P-9).
5. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate General for the respondent-State and also gone through the record, carefully.
6. The perusal of the record reveals that after the registration of FIR No. 27/2020, dated 08.03.2020, Raj Kumar Rana, being trustee of Manav Bharti Foundation trust was arrested and alongwith him, the petitioner and her daughter were also arrayed as accused persons. Since the notices for joining investigation served upon the petitioner as ::: Downloaded on - 21/09/2023 20:34:13 :::CIS 5 well as her daughter have been received back .
unserved, the police moved an application before the learned trial Court for issuance of non-bailable warrants against them. In pursuance to order dated 16.12.2020, passed by the learned trial Court, the of non-bailable warrants were issued against the petitioner Ashoni Kanwar as well as her daughter rt Aaina Rana on the addresses supplied by the Investigating Agency. However, the non-bailable warrants were received back unexecuted and on 12.01.2021, fresh non-bailable warrants were ordered to be issued against them. On 23.02.2021, the police again moved an application seeking issuance of fresh non-bailable warrants against the petitioner as well as her daughter and, consequently, fresh non-
bailable warrants were issued against them.
Thereafter, the Investigating Agency moved an application under Section 82 of Cr. PC for declaring the petitioner as well as her daughter as proclaimed offenders and the learned trial Court vide order dated ::: Downloaded on - 21/09/2023 20:34:13 :::CIS 6 26.10.2021, issued proclamation and vide order .
dated 03.01.2022, declared them as proclaimed offenders. The relevant portion of order dated 26.10.2021 reads as under:-
".........
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10. In view of aforesaid facts and circumstances, this court has reason to believe that accused Ashoni Rana and Aaina Rana against whom warrant for arrests were issued rt earlier, have absconded and they are concealing themselves so that aforesaid warrants can not be executed and even there seems no chances in near future also to arrest them. Under these circumstances, this court is left with no other option than to issue proclamation under Section 82 of Cr. PC against accused Ashoni Rana and Aaina Rana requiring them to appear in this Court at 10:00 A.M. sharp on 03.01.2022.
..........."
7. At this stage, it would be relevant to reproduce Section 82(1) of Cr. PC, which reads 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 been 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 specific place and at a specified ::: Downloaded on - 21/09/2023 20:34:13 :::CIS 7 time not less than thirty days from the date of publishing such proclamation."
.
Thus, the perusal of the aforesaid Section reveals that if the Court has a reason to believe that any person against whom a warrant has been issued by it of has absconded or concealing himself so that such warrant cannot be executed, such Court may publish rt a written proclamation. However, in the instant case, no material has been placed on record by the Investigating Agency that the petitioner as well as her daughter Aaina Rana had absconded or were concealing themselves.
8. As observed earlier, both the petitioner as well as her daughter Aaina Rana were in Australia during the relevant period. The perusal of the record further reveals that Investigating Agency was also well within the knowledge that the petitioner had left India on 08.03.2020 and her daughter Aaina Rana had left India on 17.02.2020 for Australia, as mentioned in the application (Annexure P-5) filed by ::: Downloaded on - 21/09/2023 20:34:13 :::CIS 8 the Investigating Agency itself requesting for .
issuance of non-bailable warrants against them. The relevant portion of the aforesaid application reads as under:-
"..............
of Details about requirement of associating both Co-Trustees in the investigation have been mentioned in the supplementary charge sheet filed in the present case (copy enclosed).
rt Perusal of Arrival/Departure details of above Co-Trustees received from the O/o The Assistant Director, Central Foreigners Bureau, Intelligence Bureau, MHA, Gol, New Delhi (copies enclosed) has revealed departure of Ashoni Kanwar on dated 08.03.2020 and Aaina Rana on 17.02.2020 to Australia.
..........."
9. However, despite the fact that the Investigating Agency was well within the knowledge that the petitioner alongwith her daughter had left India, it had first sought issuance of non-bailable warrants against the petitioner and her daughter and thereafter moved an application under Section 82 of Cr. PC before the learned trial Court to declare them as proclaimed offenders. Thus, it has become clear that the petitioner alongwith her daughter were ::: Downloaded on - 21/09/2023 20:34:13 :::CIS 9 neither served nor they had concealed themselves in .
order to evade the non-bailable warrants issued against them, as such, the learned trial Court had committed grave error in issuing the proclamation against them and in declaring them as proclaimed of offenders. Therefore, in view of the facts and circumstances of the present case as also in view of rt the material available on record, this Court finds that order dated 26.10.2021 and order dated 03.01.2022 are against the law as well as the facts on record and as such, the same deserve to be set aside. Hence, the present petition is allowed and orders dated 26.10.2021 and 03.01.2022, passed by learned Judicial Magistrate First Class, Court No. 1, Solan, District Solan, H.P. are quashed and set aside.s
10. The Investigating Agency is at liberty to take appropriate steps in accordance with law to secure the presence of the petitioner Ashoni Kanwar as well as her daughter Aaina Rana.
::: Downloaded on - 21/09/2023 20:34:13 :::CIS 1011. In view of the above discussion, the .
petition is disposed of, so also pending application(s), if any.
( Sushil Kukreja )
of
September 20, 2023 Judge
(raman)
rt
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