Delhi District Court
Dinesh Shah vs State on 12 November, 2018
IN THE COURT OF SH. GULSHAN KUMAR,
ADDITIONAL SESSION JUDGE 03
SOUTH EAST DISTRICT, SAKET COURTS
NEW DELHI
IN THE MATTER OF
CNR NO. DLSE010019522016
CR NO. 204523/16
Dinesh Shah
S/o Shri Dasheri Lal,
R/o Village Jagatpur, P.S. Phool Paras,
District Madhubani, Bihar .......... Revisionist
Versus
State .......... Respondent
DATE OF INSTITUTION : 13.01.2016 DATE OF RESERVING ORDER : 12.11.2018 DATE OF PRONOUNCEMENT : 12.11.2018
1. Vide this order I shall dispose of a criminal revision petition filed under Section 397 Cr.P.C. filed by the revisionist against orders dated 29.10.2015, 07.11.2015, 05.01.2016 and 08.01.2016, passed by Ld. ACMM, Saket Courts, New Delhi (hereinafter referred to as impugned orders).
2. Briefly stated the facts as per the case of revisionist are that on the complaint of Ms. Vinita Chordiya the FIR No. 503/15 was registered on 07.10.2015 with the allegations that on CR No. 204523/16 Dinesh Shah Vs. State Page 1 of 9 07.10.2015 at about 5:50PM when one domestic maid (servant) namely Chotu open the gate of the house of the complainant then four boys suddenly entered into the house of the complainant. They gave slap to the complainant and took out some gold jewellery and cash from the almirah. They have also beaten the daughter of the complainant. During the investigation of the case, accused Devender Kumar Kamat @ Chotu was arrested. During the interrogation, accused persons disclosed that the robbed items were purchased by the revisionist. Investigating Officer had taken the warrants against the revisionist on 29.10.2015 and thereafter, the IO without adopting the procedure of law, taken the proceedings of Section 82 Cr.P.C. against the revisionist vide order dated 07.11.2015. The revisionist had moved an application for cancellation of 82 Cr.P.C. proceeding and same was dismissed by Ld. ACMM vide order dated 05.01.2016 and issued proceedings under Section 83 Cr.P.C. against the revisionist vide order dated 08.01.2016.
3. Before proceeding further I deemed it fit to reproduce the orders dated 05.01.2016 and 08.01.2016 of Ld. ACMM which reads as under:
Order dated 05.01.2016 -
"......CR No. 204523/16 Dinesh Shah Vs. State Page 2 of 9
This is application for cancellation of proceedings of proclamation in terms of section 82 Cr.P.C..
Reply has been filed by IO.
It is stated by Ld. Counsel for accused that the applicant is innocent and ready to join the investigation.
IO has stated that the applicant is not cooperating for investigation. He further stated that anticipatory bail application of the accused has already been dismissed.
Heard. Even today, the applicant is not stated to be available. There is no sufficient reason for cancellation of proceedings u/s 82 Cr.P.C. Application stands dismissed. Copy of this order be given dasti."
Order dated 08.01.2016 -
"It is stated by Ld. Counsel for accused that he wants to withdraw the application for surrender cum bail which was moved on behalf of accused on 05.01.2016. Ld. Counsel for applicant has also moved an application for withdrawal of said application on 06.01.2016. In the present facts, application for surrender cum bail is dismissed as withdrawn.
Request has been made on behalf of the IO for issuing process under 83 Cr.P.C. stating that process under Section 82 Cr.P.C. has been completed. Even today the accused has not appeared and his CR No. 204523/16 Dinesh Shah Vs. State Page 3 of 9 application for surrender cum bail has been withdrawn by Ld. Counsel for applicant and hence there are sufficient ground for issuing process under Section 83 Cr.P.C. against accused/applicant.
Issue process under Section 83 Cr.P.C. against accused returnable for 09.02.2016.
At this stage, Ld. Counsel for accused has requested for dasti copy.
Copy of this order be given dasti to IO as well as to Ld. Counsel for applicant."
4. Section 82 Cr.P.C. reads as under: 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 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 -
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
CR No. 204523/16 Dinesh Shah Vs. State Page 4 of 9(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 such 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 undersection (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 proclamation, the Court may, after making such inquiry as it thinks CR No. 204523/16 Dinesh Shah Vs. State Page 5 of 9 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 subsection (1).
5. Section 83 Cr.P.C. reads as under: 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 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 proclamation.
(2) Such order shall authorise the attachment of any CR No. 204523/16 Dinesh Shah Vs. State Page 6 of 9 property belonging to such person within the district in 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 delivery of property to the proclaimed CR No. 204523/16 Dinesh Shah Vs. State Page 7 of 9 person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks 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).
6. I have heard the arguments made on behalf of the parties and perused the record.
7. In the present case, anticipatory bail application of the revisionist had already been dismissed. The revisionist Dinesh Shah had moved an application for surrender cum bail before Ld. ACMM on 05.01.2016, the said application was withdrawn by counsel for revisionist on 06.01.2016. After going through the record, it appears that accused/revisionist had never appeared before Ld. Trial Court and he is deliberately avoiding the proceedings of the Court.
CR No. 204523/16 Dinesh Shah Vs. State Page 8 of 98. In light of the aforesaid discussion, I do not find any illegality or infirmity in the impugned orders dated 29.10.2015, 07.11.2015, 05.01.2016 and 08.01.2016, passed by Ld. ACMM. Accordingly, the criminal revision petition is dismissed.
Trial Court Record, if any, be sent back to Court Concerned along with copy of this order.
Criminal Revision Petition record be consigned to record room.
ANNOUNCED IN THE OPEN COURT (GULSHAN KUMAR) ON 12.11.2018 ASJ03, S.E., SAKET COURTS NEW DELHI CR No. 204523/16 Dinesh Shah Vs. State Page 9 of 9