Delhi District Court
State (Govt. Of Nct Of Delhi) vs Gajjan Singh S/O Sohan Singh on 17 April, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW
DELHI
(I) Criminal Revision No. 112/2013
ID No.: 02406R0088612013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi ... Petitioner
Versus
1. Gajjan Singh s/o Sohan Singh
R/o Vill. Ganda, PS Ratia
Distt. Faridabad, HR.
2. Pyara Singh s/o Malkit Singh
R/o B119, Gali No. 5,
Ambedkar Colony, Chhatterpur, ND.
3. Jarnail Singh @ Baggi ... Respondents
(II) Criminal Revision No. 113/2013
ID No.: 02406R0088622013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi ... Petitioner
Versus
Mohd.Sarfraz s/o Mohd. Ikram
R/o Vill. Ugava, Mohalla, Sheikh Tali,
PS Asthanwa, Distt. Nalanda, Bihar. ... Respondent
Crl. Rev. No. 112/2013 to 126/2013 Page 1 of 23
(III) Criminal Revision No. 114/2013
ID No.: 02406R0088602013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi ... Petitioner
Versus
Jaipal Yadav s/o Panta Reddy,
R/o J3/149, Kalkaji, New Delhi. ... Respondent
(IV) Criminal Revision No. 115/2013
ID No.: 02406R0088592013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Risik Patel s/o Laxman Patel
R/o Vill. Kuber Nagar, PO Dhasa
Ahamdabad, Gujrat. ... Respondent
(V) Criminal Revision No. 116/2013
ID No.: 02406R0088552013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
1. Devrajan Singh s/o Raj Kishore,
R/o Vill. Dhakriya, PS Brada,
Distt. Bhojpur, UP.
Crl. Rev. No. 112/2013 to 126/2013 Page 2 of 23
2. Mahesh Singh s/o Raj Kishore,
R/o Vill. Dhakriya, PS Brada,
Distt.Bhojpur, UP. ... Respondents
(VI) Criminal Revision No. 117/2013
ID No.: 02406R0088482013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Vijay s/o Ram Kishan,
R/o F2, Kaka Nagar, New Delhi. ... Respondent
(VII) Criminal Revision No. 118/2013
ID No.: 02406R0088562013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Rahul Kumar Singh s/o Surender Prasad
R/o B9/315, Aya Nagar, ND. ... Respondent
(VIII)Criminal Revision No. 119/2013
ID No.: 02406R0088492013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Crl. Rev. No. 112/2013 to 126/2013 Page 3 of 23
Shobha Rani w/o Bhupesh Kr.
R/o 9/51, Subash Nagar, ND. ... Respondent
(IX) Criminal Revision No. 120/2013
ID No.: 02406R0088502013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Ajay Halder s/o Ravinder Nath,
R/o RZ11, Chandan Colony,
Saidullajab, New Delhi. ... Respondent
(X) Criminal Revision No. 121/2013
ID No.: 02406R0088572013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Ajay Kumar s/o Ashok Kumar
S/o H. No. 133, Kala Mohalla,
Sonipat, Haryana. ... Respondent
(XI) Criminal Revision No. 122/2013
ID No.: 02406R0088522013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Crl. Rev. No. 112/2013 to 126/2013 Page 4 of 23
Raju s/o Suresh
R/o A669, A Block, ReSettlement Colony
Khayala, Delhi. ... Respondent
(XII) Criminal Revision No. 123/2013
ID No.: 02406R0088532013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
1. Anand Kumar s/o Ram Bali
2. Kinshu s/o Raja Ram
Both R/o F157, Lado Sarai,
New Delhi. ...Respondents
(XIII)Criminal Revision No. 124/2013
ID No.: 02406R0088582013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Rajender Singh s/o Sita Ram
R/o Near Public School,
PhVI, Aya Nagar, ND. ... Respondent
(XIV)Criminal Revision No. 125/2013
ID No.: 02406R0088542013
Crl. Rev. No. 112/2013 to 126/2013 Page 5 of 23
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Vasim Akram s/o Asgar Khan
R/o Vill. Akbarpur,
Distt. Nuh, Mewat, HR. ... Respondent
(XV) Criminal Revision No. 126/2013
ID No.: 02406R0088632013
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi. ... Petitioner
Versus
Banne Ali s/o Ismail
R/o Devta Wali Gali,
Sultanpur, New Delhi. ... Respondent
All Instituted on: 08.04.2013
Judgment reserved on: 17.04.2013
Judgment pronounced on: 17.04.2013
J U D G M E N T
1. The state has come up with these fifteen revision petitions seeking to invoke revisional jurisdiction of this court under Sections 397/399 Cr.P.C. to question almost similar orders passed by Sh. Sandeep Garg, Metropolitan Magistrate07 Crl. Rev. No. 112/2013 to 126/2013 Page 6 of 23 (South) in the context of different criminal cases (registered on the basis of charge sheets filed) pursuant to the investigation into corresponding first information reports (FIR), interalia, directing the Station House Officer, Mehrauli, to register FIRs for offence under Section 174A IPC against the persons named in the respective orders and for filing compliance reports.
2. The respondents in each of these 15 revision petitions were sought to be prosecuted on the basis of chargesheets submitted on conclusion of investigation into the corresponding criminal cases, they being FIR No. 41/10 u/s. 325/34 IPC; FIR No. 190/10 u/s. 363/366 IPC; D.D. No. 42 u/s. 5/15 E.P. Act; FIR No. 658/09 u/s. 379/411/34 IPC; FIR No. 239/06 u/s. 160 IPC; FIR No. 529/10 u/s. 379/411/427 IPC; FIR No. 465/05 u/s. 420/34 IPC; FIR No. 521/06 u/s. 506/34 IPC; FIR No. 536/07 u/s. 61/1/14 Ex. Act; FIR No. 473/03 u/s. 279/304A IPC; FIR No. 23/12 u/s. 33 Delhi Excise Act; FIR No. 621/02 u/s. 323/341/34 IPC; FIR No. 512/04 u/s. 25 A. Act; FIR No. 04/10 u/s. 279/337 IPC; and FIR No. 455/09 u/s. 379/411 IPC, all of PS Mehrauli. Each of the said respondents had failed to appear in the court of the Magistrate despite publication of proclamations under section 82 Cr.P.C and thus were declared Crl. Rev. No. 112/2013 to 126/2013 Page 7 of 23 proclaimed offenders/absconders vide orders dated 25.07.2012, 12.12.2012, 07.12.2012, 06.06.2012 & 21.01.2013, 04.12.2012, 17.09.2012, 26.04.2012, 15.04.2009, 10.12.2012, 01.03.2012, 04.12.2012, 12.01.2011, 03.12.2012, 02.06.2012 and 07.12.2012 respectively. In each of these cases, the Ld. Magistrate passed almost identical orders (15.12.2012, 12.12.2012, 07.12.2012, 21.01.2013, 04.12.2012, 19.12.2012, 04.01.2013, 17.12.2012, 10.12.2012, 04.12.2012, 04.12.2012, 05.12.2012, 03.12.2012, 18.12.2012 and 07.12.2012 respectively) directing FIR to be registered for offence under section 174A IPC against the said respondents. The revision petitions challenge the correctness, legality and propriety of each of the said orders.
3. The learned Magistrate considered the course of action arising out of the factsituation as noted above after hearing the Public Prosecutor, incharge of the cases. He found on the above mentioned facts that offences punishable under Section 174A IPC had prima facie been committed by the persons who had absconded (declared proclaimed offender). The Public Prosecutor submitted before the Metropolitan Magistrate that a supplementary charge sheet would be filed against each such person and he/she could be tried (additionally) for offence under Crl. Rev. No. 112/2013 to 126/2013 Page 8 of 23 Section 174A IPC along with the offences for which he/she had been originally sent up for trial through the charge sheet in the proceedings arising out of which the individuals had been declared proclaimed offender/absconder. The learned Magistrate, however, was of the view that the offence under Section 174 A IPC is a separate and distinct offence for which the said persons are liable to be prosecuted and tried separately. In this context, he referred to the view taken by Hon'ble High Court in Crl. M. C. No. 4208/2011 Maneesh Goomer Vs. State decided on 04.01.2012 by Hon'ble Ms. Justice Mukta Gupta. Directions were, thus, issued to Station House Officer, PS Mehrauli in each case for FIR to be registered under Section 174A IPC and compliance report to be filed by the specified date.
4. At the hearing, the Additional Public Prosecutor, on instructions from Station House Officer, PS Mehrauli confirmed that compliance has not been made with any of the above mentioned 15 orders of the Magistrate till date.
5. The State feels aggrieved with the orders, interalia, on the ground that the learned Magistrate has passed "similar orders in so many cases of Police Station Mehrauli" and that the view Crl. Rev. No. 112/2013 to 126/2013 Page 9 of 23 taken by the Magistrate is against the law laid down by Hon'ble High Court on a similar petition Criminal Revision No. 47/2013 titled State Vs. Hemant Sharma whereby similar order of the Magistrate passed on 15.12.2012 in case (FIR No. 277/04 PS Mehrauli) was set aside on the ground that it suffered from material irregularity. It is the contention of the State that the reference by the learned Magistrate to the decision in the case of Maneesh Goomer (supra) was not correct as the law laid down therein would apply to a complaint case rather than a case where State is a party.
6. All the above petitions are accompanied by applications for condonation of delay mainly on the ground that the orders could not be challenged earlier since time was consumed in processing and obtaining permission from the concerned authorities. It is noted that Criminal Revision No.115/2013 preferred on 06.04.2013, questioning the order dated 21.01.2013 has been filed within the period of limitation. Yet, almost in a mechanical manner, it is also accompanied by an application for "condonation of delay".
7. Be that as it may, I have heard Sh. Inder Kumar, Additional Crl. Rev. No. 112/2013 to 126/2013 Page 10 of 23 Public Prosecutor for the State at length on the question of maintainability of the revision petitions against the impugned orders. I have gone through the record with his assistance.
8. During the course of arguments, Additional Public Prosecutor submitted that the view taken in the case of Maneesh Goomer (supra) was distinguished by Hon'ble High Court in Criminal Revision No.47/2012 State Vs. Declared Proclaimed Offenders of Delhi which was decided by Hon'ble Mr. Justice Sunil Gaur vide order dated 29.01.2013. He also pointed out that view similar to the one taken in criminal revision no. 47/2013, has been earlier taken in almost another similar petition titled State Vs. Proclaimed Offenders of Delhi (CRL. M. C. No. 2021/2010) decided on 11.08.2010 by Hon'ble Mr. Justice S. L. Bhayana. His submission essentially is that a contrary view taken by Hon'ble Ms. Justice Mukta Gupta in the case of Maneesh Goomer (supra) has to be seen in the context of facts and circumstances of the said case where the need for prosecution under Section 174A IPC arose in the course of proceedings on a private complaint under Section 138 Negotiable Instruments Act.
Crl. Rev. No. 112/2013 to 126/2013 Page 11 of 23
9. It is clear from perusal of the three orders of Hon'ble High Court in different matters as have been referred above that the view taken in the case of Maneesh Goomer (supra) is contrary to the view taken by the other two Hon'ble Judges of the High Court. But then, what is plain and clear from the perusal of the three orders is that the challenge to such directions from the Magisterial court in all those cases were brought before Hon'ble High Court invoking its jurisdiction under Section 482 Cr.P.C. The matter decided by Hon'ble Mr. Justice Sunil Gaur on 29.01.2013 does appear to have been registered as a criminal revision petition. But then, the copy of the order itself shows that Hon'ble High Court was exercising powers under Section 482 Cr.P.C. for which Crl. M.A. No. 1029/2013 had been moved and allowed.
10.This court is vested with the revisional jurisdiction by provision contained in Section 397 Cr.P.C. Subsection (2) of Section 397, however, provides for circumspection in the contest of interlocutory orders. It reads as under: "The powers of revision conferred by sub section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
Crl. Rev. No. 112/2013 to 126/2013 Page 12 of 23
11. In the course of proceedings before the criminal court brought either by the State or by way of a private complaint seeking prosecution of any person for offence, the Magistrate is vested with the requisite powers of issuing process (under Section 204 Cr.P.C.) and secure the presence of such person either through summons or, if need be, by a warrant of arrest (bailable or non bailable). To meet the exigency, wherein the person thus summoned, or sought to be brought before the court under duress, through warrant of arrest, absconds, the Criminal Procedure Code provides for proclamation to be issued, followed by attachment of the property of such person absconding to coerce compliance and to bring him to justice. Section 82 Cr.P.C. clothes the court in question with the authority to publish written proclamation requiring such person to appear at a specified place and at a specified time, if there is reason to believe that such person against whom warrant has been issued, has absconded or was concealing himself such that the warrants against him cannot be executed.
12.As a result of the amendment brought about through Act no. 25 of 2005 subsection (4) has been added to Section 82 Cr.P.C. Crl. Rev. No. 112/2013 to 126/2013 Page 13 of 23 wherein the criminal court has been given authority to pronounce a person who may have failed to appear inspite of such proclamation to be declared "a proclaimed offender" if his presence has been required by the court for certain specific categories of offences as have been set out in the said clause.
13.Section 174A IPC was also brought on the statute book through the amendment Act 25 of 2005 and reads as under: "174A. Nonappearance in response to a proclamation under section 82 of Act 2 of 1974. Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as proclaimed offender, he shall be punished with imprisonment for a term which may extent to seven years and shall also be liable to fine."
14. It is own case of the State here that by failing to appear before the court of Magistrate pursuant to the directions published under Section 82(1) Cr.P.C. in each of the above mentioned Crl. Rev. No. 112/2013 to 126/2013 Page 14 of 23 cases, the persons in question have committed offences punishable under Section 174A IPC.
15.The Ld. Additional Public Prosecutor fairly conceded that the offence under Section 174A IPC has been classified as cognizable and nonbailable. He also further conceded that though, technically, Section 174A IPC would fall within the range of offences provided under Sections 172 to 188 IPC within the meaning of expression used under Section 195 (1)(a)(i) Cr.P.C., restriction against cognizance (of such offence under Section 174A IPC) without a complaint in writing, as is requisite under Section 195 Cr.P.C., will not apply here, this in view of the law to that effect clearly laid down by Hon'ble High Court in the case of Maneesh Goomer (supra).
16. It is not the case of the State that the learned Magistrate does not have the power to take cognizance of such offences in exercise of his jurisdiction under Section 190 Cr.P.C. It is further fairly conceded that the orders passed by the learned Magistrate in each case will have to be construed as an order under Section 156(3) Cr.P.C. wherein, the Magisterial Court with requisite jurisdiction under Section 190 Cr.P.C. is competent to direct investigation by police in a case involving Crl. Rev. No. 112/2013 to 126/2013 Page 15 of 23 cognizable offence.
17. The objection of the State in these cases is as to the propriety of the course that has been chosen. In the submission of the learned prosecutor, the direction of learned magistrate would unduly inflate the registration of FIRs adding to the burden on police. He argued that supplementary chargesheet in each case should suffice to ensure prosecution under section 174A IPC. In other words, the police wants to use power for further investigation under section 173 (8) Cr.P.C to take care of the ends of justice visavis the offence of "nonappearance" under section 174ِA IPC.
18.The order directing registration of FIR is only a step to set the criminal law in motion. Strictly speaking, it is not an order of import to the extent of bringing finality to the matter. Thus, it seems to be in the nature of interlocutory order. From this perspective, the maintainability of revision seems doubtful in view of bar in section 397 (2) Cr.P.C. Be that as it may, deferring to the insistence of additional public prosecutor that the order is intermediary, I have examined the revision petitions on merits.
19.At the outset, I must observe that the manner in which the State Crl. Rev. No. 112/2013 to 126/2013 Page 16 of 23 (essentially the police department) has tried to evade its responsibility under the amended legislation is not a very healthy trend. As noted above, the offence under section 174 A IPC has been classified as cognizable. It is basic in the mandate of section 154 Cr.P.C that upon information relating to commission of a cognizable offence reaching the notice of the officerincharge of a police station, he must reduce it into writing, that is to say register an FIR for appropriate further action in accordance with law. In the given facts and circumstances of each case, it cannot be the case of the SHO concerned here that the commission of the cognizable offence under section 174 A IPC never reached his knowledge. Even if that were to be ignored, the jurisdiction of the Magistrate to order an investigation into such offence in exercise of his power under section 156 (3) Cr.P.C cannot be disputed. After all, it is nothing but reminder to the concerned SHO about his statutory duty under section 154 Cr.P.C.
20.The reluctance on the part of the police to register a separate FIR for offence under section 174 A IPC basically stems from the fact that this would add to their work. But additional work provides no justification for evading statutory responsibility or Crl. Rev. No. 112/2013 to 126/2013 Page 17 of 23 rendering nugatory the legislative mandate.
21. It has been the suggestion of the police that necessary follow up action respecting the offence under section 174 A IPC can be taken care of by such offence being "inserted" in the main chargesheet or in the alternative supplementary chargesheet being filed as and when the accused persons are arrested.
22.Undoubtedly, in the context of a similar order passed in the course of proceedings arising out of FIR No. 21/02 under section 379/34 IPC of PS Paharganj, a learned single judge of Hon'ble High Court vide order dated 11.08.2010 in the case of Proclaimed Offenders of Delhi (supra) agreed with the arguments to such effect advanced for the State and the same view was followed by another learned single judge of Hon'ble High Court in order dated 29.01.2013 in the case of Declared Proclaimed Offenders of Delhi (supra).
23.But then, another coordinate bench of Hon'ble High Court presided over by Hon'ble Ms. Justice Mukta Gupta in the case of Maneesh Goomer (supra) after a detailed discussion of various arguments has been pleased to uphold a similar order passed by the court of Metropolitan Magistrate inter alia Crl. Rev. No. 112/2013 to 126/2013 Page 18 of 23 observing that offence punishable under section 174 A IPC gives rise to "an independent cause of action". Clearly, the view to the contrary in the other two orders was taken in the light of facts of the said cases. The said two orders do not lay down a general law prohibiting registration of FIR for offence under section 174 A IPC. On the contrary, the law laid down in Maneesh Goomer (supra) approves directions for registration of such FIR.
24.In the submission of the State in these revision petitions, the impugned orders suffer from material irregularity since the law laid down in Maneesh Goomer (supra) pertains to cases under section 138 Negotiable Instruments Act. The additional public Prosecutor argued that the dicta in Maneesh Goomer (supra) is "not applicable to case where State is a party". Though arguments to such effect were advanced and noted in the case of Proclaimed Offenders of Delhi (supra), there is nothing in the said order dated 29.01.2013 to indicate the same being upheld. There is nothing in the judgment in the case of Maneesh Goomer (supra) to jump to the conclusion that the approach of the Magistrate visavis offence under section 174 A IPC was Crl. Rev. No. 112/2013 to 126/2013 Page 19 of 23 upheld so as to be restricted only to complaint cases to the exclusion of State cases.
25.Thus, following the law laid down in the case of Maneesh Goomer (supra), it must be observed that the offence under section 174 A IPC gives rise to an independent cause of action.
26.The suggestion that such prosecutions can be part of the same proceedings as have been pending before the Magistrate is against the statutory provisions governing criminal procedure, particularly sections 218 to 220 Cr.P.C.
27. Since the offence under section 174 A IPC in each of these cases is distinct from the offences for which the chargesheets were earlier filed, each such charge shall have to be tried "separately". That is the command of section 218 Cr.P.C which brooks no exception save as one indicated in the proviso which, in turn, would depend on an application in writing to be submitted by the accused for a joint trial for which the occasion is yet to arise.
28.Clearly, the offence under section 174 A IPC on one hand and the offence for which the accused in each of these 15 cases had been earlier hauled before the court on the other are not "of same kind" within the meaning of the expression used in section Crl. Rev. No. 112/2013 to 126/2013 Page 20 of 23 219 Cr.P.C. The only thing common would be the accused which, by itself, does not justify or permit joint trial. Further, these offences cannot, by any stretch of imagination, be treated to be forming part of the same transaction or being connected together in any manner as envisaged by section 220 Cr.P.C.
29.Most of these cases would be covered by the first part of section 174 A IPC. The said part attracts maximum punishment of imprisonment for three years or with fine or both. The suggestion of the State that prosecution can be launched for such offences by way of supplementary chargesheet to be filed "as and when the absconding accused is arrested", in ignoring the fact that by such time the prosecution may have become time barred. The offence under section 174 A IPC stands committed on the day the accused fails to appear before the court within the time specified in the proclamation under section 82 Cr.P.C. The limitation for taking of cognizance would begin to run from such date. Section 468 (2) (c) of Cr.P.C mandates that the period of limitation for cognizance to be taken for such offence is three years. There is no guarantee, as on date, that the absconding accused would be arrested within three years of the ofence under section 174 A IPC being Crl. Rev. No. 112/2013 to 126/2013 Page 21 of 23 committed.
30.There is one more reason why the course suggested by the State does not appeal to me. As can be demonstrated on the basis of submissions made before Hon'ble High Court in the case of Maneesh Goomer (supra), a person prosecuted for offence under section 174 A IPC would be within his rights to raise defence to the effect that action on process, on the report concerning service of which he has been declared absconder (or proclaimed offender), was not carried out in accordance with law. If the charge under section 174 A IPC is to be framed as a charge additional to the main offence (for which the accused was originally sought to be prosecuted), whether by way of "insertion" in the main chargesheet or by way of supplementary chargesheet, it would mean that the same Magistrate who declared the accused to be an absconder would be sitting in judgment over the legality, correctness or propriety of his own acts (judicial or administrative) in the course of the same trial. This may not only be undesirable but, in fact and also, wholly impermissible.
31. For the foregoing reasons, following the law laid down in the case of Maneesh Goomer (supra), I find no substance in these Crl. Rev. No. 112/2013 to 126/2013 Page 22 of 23 revision petitions. They are dismissed.
32.This judgment has been passed on the file of revision petition no. 112/2013. The reader is directed to place an attested copy of the same on the files of revision petition nos. 113/2013 to 126/2013.
33. A copy of this judgment be sent to trial court.
34.Files of the criminal revision petitions be consigned to Record Room.
Announced in open Court today on this 17th day of April, 2013. (R.K. GAUBA) District & Sessions Judge (South) Saket / New Delhi.
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