Delhi District Court
Anita Aggarwal vs The Govt. Of Nct Of Delhi on 31 May, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW
DELHI
Criminal Revision No. 143/2013
ID No.: 02406R0113642013
Anita Aggarwal
w/o Mr. Sunil Aggarwal
R/o D5/242, Sangam Vihar,
New Delhi 110062. .... Revisionist
Versus
1. The Govt. of NCT of Delhi
Through the Chief Secretary
Sachivalya, IP Estate
New Delhi.
2. Delhi Police through The SHO
PS Sangam Vihar, New Delhi. .... Respondents
Instituted on: 04.05.2013
Judgment reserved on: 28.05.2013
Judgment pronounced on: 31.05.2013
J U D G M E N T
1. This criminal revision petition has been preferred to question Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 1 of 35 the correctness, legality and propriety of orders passed on 05.11.2011, 17.12.2011 and 12.07.2012 by the Metropolitan Magistrate in the context of FIR No. 393/2010 under Sections 406/420 IPC of Police Station Sangam Vihar.
2. On notice, the respondentState has appeared to resist the revision petition on the basis of trial court record.
3. In the course of hearing, the revision petition was amended so as to add certain pleadings. In light of the submission made and the facts discovered, certain directions were given to SHO Police Station Sangam Vihar vide order dated 16.05.2012 and reports called from the Metropolitan Magistrate, interalia, through orders dated 16.05.2013 and 24.05.2013.
4. I have heard Sh. Somnath Bharti, advocate for the petitioner and Sh. WasiurRehman, Addl. Public Prosecutor for the State. I have gone through the trial court record and reports as indeed the material submitted by the petitioner.
5. The revision petition has been preferred on 03.05.2013 and, therefore, is beyond the period of limitation visavis the impugned orders and, thus, accompanied by application under Section 5 of Limitation Act seeking condonation. Having heard both sides at length and in the facts and circumstances of the Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 2 of 35 case including the fact that Mr. Sunil Aggarwal, husband of the petitioner (also an accused in the same case, presently under investigation by police), is in judicial custody, the delay is condoned and the petition entertained on merits.
6. Before adverting to the contentions raised in the revision petition, it is essential to take a brief note of the facts and circumstances leading to the orders which have been impugned in the revision petition.
7. The FIR no. 393/2010 appears to have been registered on 02.12.2010 in Police Station Sangam Vihar (hereinafter, referred to as "the police station") on the complaint in writing of one Ram Vilas R/o D5/535, Sangam Vihar, New Delhi. As per the allegations in the case, the petitioner and her husband (Sunil Aggarwal) had approached the first informant with an offer of scheme of investment wherein the money put in was to multiply into double the amount in three months, in response to which he allegedly paid Rs. Seven lacs. He alleged that when he approached the petitioner and her husband after three months for refund, he was paid Rs. 1,50,000/ and assured that amount of Rs. 12,50,000/ would be paid to him within 24 days. He further alleged that when he persisted with the demand for Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 3 of 35 refund of his money, threats were extended to intimidate him and the money was not paid, except one more instalment of Rs. 1,50,000/.
8. It appears to be the case of police that the initial investigation brought out that the petitioners had engaged in series of similar acts of commission and omission constituting offences punishable under Sections 420/406 IPC qua a number of persons.
9. While the investigation was under way, the petitioner and her husband moved bail application number 478/2011 before Hon'ble High Court of Delhi seeking anticipatory bail. A copy of the order dated 04.08.2011 passed by Hon'ble High Court has been submitted by the petitioner herself. It indicates that though the claim of the first informant had been settled by the petitioner, the offence of cheating at least against 18 other persons had come to light. Taking notice of the facts and circumstances of the case, Hon'ble High Court dismissed the application for anticipatory bail observing that the petitioner and her husband "had fraudulently lured number of people and divested them of their hardearned money".
10.On 31.10.2011, SI Harpal Singh (the first investigating officer) Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 4 of 35 prepared an application addressed to Ms. Gomati Manocha, Metropolitan Magistrate, Saket Court, New Delhi in the context of this FIR. It may be mentioned here that the court to which the jurisdiction of criminal cases pertaining to police station Sangam Vihar was allocated at that time was then presided over by Ms. Gomati Manocha. She having since been transferred, the said court is now presided over by Sh. Ajay Garg.
11. The application dated 31.10.2011 of the I.O. indicated that the application for anticipatory bail of the petitioner and her husband, who were "wanted" in the case at hand, had been dismissed by Hon'ble High Court, whereafter they had moved another anticipatory bail application which had yet not been admitted but was listed for consideration on 29.11.2011. Though copy of the said order has not been filed on record, it has been conceded on behalf of the petitioner by her counsel in the course of hearing that the second anticipatory bail application was later withdrawn.
12.Be that as it may, in his application dated 31.10.2011, the first investigating officer stated that the petitioner and her husband (accused persons) were evading arrest and even though raids had been conducted, their presence could not be secured. He, Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 5 of 35 thus, requested for nonbailable warrants (NBWs) to be issued against them.
13.It appears the application dated 31.10.2011 was placed before the court of Metropolitan Magistrate on 05.11.2011 and an order to the following effect came to be recorded on the face of the application itself: "Pr.: SI Harpal Singh I.O. in person.
For the facts mentioned in the application, application is allowed. Issue NBW against the accused for 17.12.2011.
Initial (illegible) 5.11.2011"
14. The trial court record now shows that NBWs, including against the petitioner, were issued on 05.11.2011 returnable on 17.12.2011 each purporting to have been issued by the court of Ms. Gomati Manocha, Metropolitan Magistrate 04 (South East), as is the impression created by the rubber stamp affixed thereon.
15.The NBWs did not result in the petitioner or her husband being arrested. The report dated 12.12.2011 on the NBW against the petitioner indicates that the residential premises was checked but she was not found at home, the house having been found Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 6 of 35 locked and local inquiries indicating that the petitioner and her husband were missing from her home in which regard statements of neighbours were recorded. The report further stated that no clue as to the whereabouts of the petitioner could be gathered and she was concealing herself so as to evade arrest.
16.The trial court record, as submitted upon being requisitioned for 16.05.2013, indicated the NBWs had, however, not been returned to the court by the first investigating officer.
17. On 17.12.2011, the first investigating officer prepared another application, again addressed to Ms. Gomati Manocha, Metropolitan Magistrate, requesting for issuance of processes under Section 82/83 Cr.P.C. against both the accused (which would include the petitioner). In this application, it was inter alia, stated that the petitioner and the other accused were wanted in the case but they were "intentionally hiding themselves to avoid their arrest". The I.O. also stated that raids had been conducted at their address but they could not be found. He stated that the NBWs had been returned unexecuted and, thus, requested for processes under Section 82/83 Cr.P.C. to be issued. The Magistrate recorded the following order on the face of the application itself on 17.12.2011:
Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 7 of 35
"Heard. Perused. Considered. Issue process u/s 82/83 Cr.P.C. against both the accused returnable on 22/5/2012. Let process u/s 83 Cr.P.C. be executed after one month of execution of process u/s 82 Cr.P.C.
Initial (illegible) 17/12/11"
18.Processes under Sections 82 and 83 were accordingly issued. The processes under Section 82 Cr.P.C. against the petitioner was placed before the magistrate with report dated 05.1.2012 ("Ex. CW 1/A") of the first investigating officer. It stated that when he (as the process server) had gone to the address in question, the house was found locked. He stated that copy of the proclamation had been affixed at the address of the house and the same had also been published by beat of drum after collecting certain local residents. He further stated that the copy of the proclamation had also been affixed in (the premises of) the court.
19.The process under Section 83 Cr.P.C. against the petitioner was placed before the magistrate with the report dated 26.02.2012 (Ex. CW 1/B) again of the first investigating officer. He stated that on inquiry he had learnt that the house (of which the petitioner is stated to be the resident) belongs to her and that he Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 8 of 35 attached the said immovable property subjecting it to sealing.
20.The trial court record, as submitted on 16.05.2013, included the proceedings recorded by Ms. Gomati Manocha, Metropolitan Magistrate on 12.07.2012 along with the depositions of SI Harpal Singh as CW1 recorded separately on two sheets respecting the petitioner on one hand and against her husband Sunil Aggarwal on the other. The short (common) order recorded on 12.07.2012 by the Metropolitan Magistrate reads as under: "FIR No. 393/10 PS Sangam Vihar 12.07.2012 Present: Ld APP for the state.
Both the accused persons are absent.
IO/SI Harpal Singh in person.
Process server SI Harpal Singh who executed the process u/s 82/83 Cr.P.C. against both the accused person. His statement to this effect has been recorded separately.
I have perused the same. The proclamation against both the accused was executed on 05.01.2012 but the accused persons have failed to appear within the stipulated period of one month. It appears that accused Anita Aggarwal and Sunil Aggarwal are Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 9 of 35 avoiding their arrest/service intentionally. The property bearing no. D5/242, Sangam Vihar, New Delhi existing in the name of accused Anita Aggarwal has been attached by the IO.
However, no property either movable or immovable has been found in the name of accused Sunil Aggarwal.
In view of above, both the accused persons namely Anita Aggarwal and Sunil Aggarwal are hereby declared Proclaimed Offender (P.O) in this case.
Sd/ (Gomati Manocha) MM04/SE/12.07.2012."
21. The petitioner has challenged the above quoted order dated 05.11.2011, whereby NBW was issued, interalia, against her on several grounds. It has been submitted that since her second application for anticipatory bail was still pending consideration of Hon'ble High Court (listed at that time for hearing on 29.11.2011), the investigating officer should not have moved such an application and the Magistrate should have been slow in entertaining the same. It has been further submitted in the amended revision petition that the application dated 31.10.2011 on which order was recorded on 05.11.2011 was never entertained by Ms. Gomati Manocha, Metropolitan Magistrate Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 10 of 35 to whose court the matter pertained. It has been submitted that the signatures on the order recorded on the application purporting to be of 05.11.2011 were not appended by Ms. Gomati Manocha, Metropolitan Magistrate and even the Ahalmad (custodian clerk of court) was unable to reveal as to which judicial officer had recorded the said order. The counsel, at the hearing, went to the extent of alleging that the order in question is "forgery". He further argued that no report having been filed indicating the petitioner to have avoided the "summons", the order for issuance of NBW against her could not have been passed.
22.Given the fact that the application for anticipatory bail had been dismissed by Hon'ble High Court vide order dated 04.08.2011 and the further admission that the second application for anticipatory bail had not resulted even in any interim protection (so much so that it was later withdrawn), the submissions to above effect against the investigating officer for moving application for issuance of NBW and about the Magistrate for entertaining the said request are devoid of substance and must be rejected outright. The investigating officer in the said application had made it clear that the accused was evading Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 11 of 35 arrest as she could not be located inspite of raids being conducted. It is well settled that in such fact situation, the jurisdiction of the Magistrate can be invoked by the police for necessary process to compel the appearance of the accused even during the investigation of the case. [State Vs. Dawood Ibrahim Kaskar [(2000) 10 SCC 438: AIR 1997 SC 2494].
23.The confusion stemming from lack of clarity in the order recorded on 05.11.2011 (on the above mentioned application) as to the identity, designation and jurisdiction of the judicial officer, however, did create some difficulty. As mentioned earlier, the application was addressed by the investigating officer to the Area Magistrate. The report dated 27.05.2013 of Sh. Ajay Garg, Metropolitan Magistrate submitted in compliance with order dated 24.05.2013 of this court has now clarified that in absence from duty of Ms. Gomati Manocha, Metropolitan Magistrate, her link Magistrate Sh. Dheeraj Mittal, Metropolitan Magistrate considered the application and passed the aforementioned order dated 05.11.2011 allowing the issuance of NBWs. It was indeed not proper for the Magistrate to have recorded the said order firstly on the body of the application itself [this against the instructions to the contrary on Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 12 of 35 the subject] and then not clarifying as to his own name and designation or the reasons why he was entertaining the application on the particular date, even though the matter pertained to the jurisdiction of Ms. Gomati Manocha, Metropolitan Magistrate.
24.It is always desirable, if not essential, that every judicial order must indicate the full identity of the judicial functionary which passes such an order as also the jurisdiction in exercise of which such order is issued. The practice of putting initials (most of the time illegible) as against full signatures, is not healthy and has been adversely commented upon earlier also. The confusion was worse confounded by the fact that Sh. Dheeraj Mittal, Metropolitan Magistrate after having recorded the said order in his own hand did not even take the necessary further precaution of getting the official seal of his court affixed below his initials. The confusion stood expanded further by the fact that even on the NBWs issued pursuant to the said order, the name of the presiding magistrate who had initialed the same was not indicated and instead, the seal of the court of Ms. Gomati Manocha, Metropolitan Magistrate (to which the matter pertained and to which the report had to be submitted), stood Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 13 of 35 affixed.
25.While lapses on the part of the concerned Metropolitan Magistrate, as noted above, need to be suitably dealt with on the administrative side by way of instructions so that they do not recur in future, the doubts raised by the petitioner as to the genuineness of the order whereby NBW was issued against her stand set at rest by the report dated 27.05.2013 of Sh. Ajay Garg, Metropolitan Magistrate.
26.Thus, save from impropriety on account of nonmention of the full particulars of the judicial authority which issued the NBWs, I do not find any illegality in the order dated 05.11.2011. The impropriety cannot render the order illegal. The revision petition to the extent it assails the order issuing NBW against the petitioner is liable to be dismissed. Ordered accordingly.
27. The order dated 17.12.2011 passed by Ms. Gomati Manocha, Metropolitan Magistrate has been assailed by the petitioner again on several counts. It has been submitted that the report on the NBWs issued for return on 17.12.2011 was dishonest as no statements of neighbouring residents had been recorded as indicated therein. It has been submitted that proclamation under Section 82 Cr.P.C. could not have been issued by the Magistrate Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 14 of 35 without "proper inquiry" and recording the satisfaction that the person against whom recourse to such process was to be taken, was actually "concealing himself so that such warrants cannot be executed". It has further been submitted that simultaneous issuance of proclamation under Section 82 Cr.P.C. and attachment warrant under Section 83 Cr.P.C. is against the settled law on the subject. The counsel argued that the directions in the order dated 17.12.2011 for process under Section 83 Cr.P.C. to be executed one month after the execution of proclamation under Section 82 Cr.P.C. could not cure the illegality committed in as much as the settled procedure/practice required a "separate inquiry" under Section 83 Cr.P.C. to be held before one proceeded to issue attachment warrant under that provision of law. The counsel pointed out that attachment warrant under Section 83 Cr.P.C. can be issued "simultaneously with issuance of proclamation" only if the circumstances indicated in the proviso to Section 83(1) Cr.P.C. are shown to exist.
28.Before coming to the contentions raised on behalf of the petitioner qua the processes under Sections 82/83 Cr.P.C., it must be observed that Ms. Gomati Manocha, Metropolitan Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 15 of 35 Magistrate, also committed similar impropriety in dealing with the application dated 17.12.2011 seeking such processes to be issued, interalia, against the petitioner (and her husband). The order has been recorded on the face of the application which is not correct practice. The Magistrate penned the order in her own hand and closed it with her brief initials (comprising only the initial "G"). There is no name or designation of the functionary recording the said order, nor indicating the jurisdiction in any manner, not even by way of impression of the official rubber seal. It is hoped that such irregularities will not recur in future.
29.It appears Ms. Gomati Manocha, Metropolitan Magistrate did not even notice that the application on which she was ordering issuance of processes under Section 82/83 Cr.P.C. referred to FIR no. 394/10 with which the petitioner or her husband are not stated to be connected in any manner. Mercifully, the processes under Sections 82/83 Cr.P.C. that were issued carried the correct particulars of the FIR (393/10, though that too only by way of subsequent correction). The processes having been issued against the corrected FIR, the clerical error in the application cannot result in any undue benefit to the accused. Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 16 of 35
30.I do not find any merit in the contention of the petitioner that the proclamation under Section 82 Cr.P.C. could not have been issued against her on the basis of submissions made in the application of the I.O., on which order dated 17.12.2011 was passed. The application referred to the report on the NBW that had been earlier issued. It also clearly indicated that the petitioner had intentionally gone into hiding and had not been found inspite of raids being conducted at her address. There is no hard and fast rule for inquiry that must precede the issuance of proclamation under Section 82 Cr.P.C. While it is correct that I.O. had not recorded any formal statements (as under
Section 161 Cr.P.C.) of neighbouring residents to confirm abscondance, the report dated 28.05.2013 of the SHO shows that inquiries from neighbours were made and this fact is reflected in the case diary. The report on the NBW and the background facts in the application of the I.O. constituted sufficient material for the Magistrate to reach the satisfaction that case had been made out for proclamation under Section 82 Cr.P.C. to be issued. The order dated 17.12.2011 to that extent cannot be faulted.
31. But then, there is difficulty faced in the context of the fact that Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 17 of 35 the same order simultaneously directed issuance of processes both under Section 82 as well as 83 Cr.P.C. The propriety for simultaneous recourse to said provisions of law came up for consideration before Hon'ble High Court of Delhi in the case of G. Sagar Suit Vs. State [2003 LawSuit (Del) 571]. The observations of Hon'ble High Court as appearing in paras 13 & 14 of the judgment in the said case need to be taken note of. They read as under: "13. It is manifest from the provisions of Section 82, Cr.P.C. that before publishing the written proclamation requiring the 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 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 processes under 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 Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 18 of 35 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. ........."
(emphasis supplied).
32. Similar fact situation prevailed in a subsequent case decided by Hon'ble High Court of Delhi reported as Rohit @ Raju Vs. State of NCT of Delhi [2007 LawSuit (Del) 1070]. Paras 17, 18 and 26 of the said judgment have been referred extensively by the counsel for the petitioner and may be extracted as under: "17. The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation.
18. The expression 'reason to believe' occurring in Section 82 Cr.P.C. suggests that the Court must be Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 19 of 35 subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term 'absconded' is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had 'absconded' or 'concealed himself'.
26. The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the court has to wait until the expiry of 30 days, to enable the accused to appear in terms of proclamation. The words 'at any time after the issue of proclamation' are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Section 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words 'at any time' in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clause (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 20 of 35 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence."
(emphasis supplied).
33. Before coming to the subject concerning Section 83 Cr.P.C., it must be observed that it is inherent in the order dated 17.12.2011 of the learned Magistrate that she had reached subjective satisfaction about the petitioner having absconded and having hidden/concealed herself to evade the arrest so as to justify recourse to the proclamation (under Section 82 Cr.P.C), this on the basis of what had been reported to her by the I.O.
34.The grievance against issuance of attachment warrant simultaneously with the proclamation is, however, well founded. As observed in the case of Rohit (supra), attachment warrant could be "issued only after issuance of proclamation". Mere direction that attachment warrant under Section 83 Cr.P.C. be executed one month after execution of proclamation under Section 82 Cr.P.C. cannot save the day. As mentioned in Rohit (supra) "the distance of not less than 30 days" has to be maintained for purposes of issuance of attachment and not Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 21 of 35 merely its execution. The precaution taken by the Magistrate proceeded on the assumption that the proclamation would not secure the presence of the petitioner. This, to say the least, was baseless.
35.Even a bare perusal of the application of the I.O. leading to the order dated 17.12.2011 indicates that grounds justifying simultaneous issuance of attachment warrant had not even been pleaded so as to bring the case within the proviso to Section 83(1) Cr.P.C. There was no allegation that she was about to dispose off any of her immovable property or remove any of her property from out of the local jurisdiction of the court.
36.For the foregoing reasons, the order dated 17.12.2011 in so far as it directed issuance of attachment warrant under Section 83 Cr.P.C. was not in accord with the settled principles of law. The order to that extent being illegal and unwarranted must be set aside. Ordered accordingly.
37. It must, however, be added here that this result cannot in any way erode the effect of process under Section 82 Cr.P.C., also issued vide order dated 17.12.2011.
38.Vide order dated 12.07.2012, Ms. Gomati Manocha, Metropolitan Magistrate declared, interalia, the petitioner a Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 22 of 35 proclaimed offender in the case. It may be added here that vide the same order her husband Sunil Aggarwal was also similarly declared a proclaimed offender. The order to that effect against Sunil Aggarwal has since lost its relevance in as much as he came to be later arrested and is presently stated to be in judicial custody.
39.The petitioner, however, questions the order declaring her a "proclaimed offender" in the case mainly on the ground that there was illegality attached to the earlier order dated 17.12.2011 which had taken simultaneous recourse to process under Sections 82 and 83 Cr.P.C. which was impermissible and also because, and this is her main plank, that in a case involving offences punishable under Sections 420/406 IPC, such a declaration could not have been made in view of Section 82(4) Cr.P.C.
40.As concluded earlier, the recourse to Section 83 Cr.P.C. simultaneous with issuance of declaration under Section 82 Cr.P.C. vide order dated 17.12.2011 was not correct. But, the illegality flowing from this would only render the process under Section 83 Cr.P.C. (and action taken thereupon) to be bad in law. Given the scheme of statutory provisions in this regard, as Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 23 of 35 set out in Section 82 and 83 Cr.P.C, the consequences of Section 82 Cr.P.C. operate in their own independent sphere unaffected by, or irrespective of, the validity of process under Section 83 Cr.P.C.
41. The argument based on Section 82(4) Cr.P.C., however, is on sound footing. Prior to the amendment of the Code of Criminal Procedure, 1973, by amendment Act 25 of 2005 (brought into force from 23.06.2006), the practice in criminal courts, almost all over India, particularly in Union Territory of Delhi, had been that the person absconding is to be treated and declared "proclaimed offender", after compliance with the procedure contained in Section 82 Cr.P.C. The expression "proclaimed offender" has no where been defined in Code of Criminal Procedure. But it did find mention in Section 40 [Duty of officers employed in connection with the affairs of a village to make certain report], Section 41[When police may arrest without warrant] and Section 43 [Arrest by private person and procedure on such arrest]. The said three provisions of law indicate need for focal attention, of the law enforcement agency on duty to bring to justice particularly the persons Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 24 of 35 who have been declared "proclaimed offender" by the Courts. Section 40(2)(ii) gave an inclusive meaning to the expression "proclaimed offender" with reference to cases involving specified offences.
42.Section 82 Cr.P.C. underwent amendment with effect from 23.06.2006, as a consequence of which its subsection (4) now reads as under: "(4) Where a proclamation published under sub section (1) is in respect of a person accused of an offence punishable under setion 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 196), 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 fit, pronounce him a proclaimed offender and make a declaration to that effect."
43. It may be added here that simultaneous to the amendment of Section 82(4) Cr.P.C., the same amendment Act created a new offence by inserting Section 174A in Indian Penal Code so as to render punishable "the nonappearance in response to proclamation" under Section 82 Cr.P.C. The penal clause in Section 174A IPC reads as under: Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 25 of 35 "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 sub section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
44. Noticeably, the offence comes in two varieties, the second category dealing with cases where an individual has been pronounced a "proclaimed offender" under Section 82(4) Cr.P.C. which attracts punishment more severe than the first category which concerns a person against whom proclamation has been published under Section 82(1) Cr.P.C. (not leading to such a declaration).
45.Undoubtedly, the proclamation under Section 82 Cr.P.C. leads to serious consequences which include the possibility of arrest without warrant (Section 41 Cr.P.C.) and prosecution (under Section 174A IPC). Needless to add, such proclamation may Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 26 of 35 also lead to attachment of property under Section 83 Cr.P.C.
46. The permissibility of declaration of an individual to be "proclaimed offender", as per past practice, for offences that are not mentioned in Section 82(4) Cr.P.C. (after amendment) came up for consideration before Hon'ble High Court of Punjab & Haryana in the case of Rahul Dutta Vs. State of Haryana [2001 LawSuit (P&H) 2773] Hon'ble High Court ruled in paras 17 & 20 as under: "17. The offences mentioned in Section 82(4) Cr.P.C. are of recurring nature. All the persons, who are absconding or concealing themselves to evade execution of warrants of arrest, could be proclaimed persons but they could be declared a "proclaimed offender" only under the provisions of the IPC which are mentioned in Section 82(4) Cr.P.C. There is stark distinction between a proclaimed person and a proclaimed offender and for that reason, there is a difference of punishment provided under Section 174A IPC as it provides imprisonment which may extend upto three years or with fine or with both regarding a person who has been proclaimed in terms of Section 82(1) Cr.P.C. and the imprisonment which may extend upto seven years and also with fine in respect of a person who is declared a "proclaimed offender" under Section 82(4) Cr.P.C.
Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 27 of 35
20. Thus, in view of the aforesaid discussion, I am of the considered opinion that the terms "proclaimed person" and "proclaimed offender"
have different connotations. A person who is evading the execution of warrant of arrest issued under the particular Sections of the IPC which are mentioned in Section 82(4) Cr.P.C. can only be declared to be a proclaimed offender and the person under the other provisions of the IPC and the laws, can be declared to be a proclaimed person in terms of Section 82(1) Cr.P.C."
(emphasis supplied).
47. A similar view was taken, again by Hon'ble Punjab & Haryana High Court, in the case of Sanjay Sarin Vs. State (Union Territory, Chandigarh) [2012 LawSuit (P&H) 5386].
48.As mentioned earlier, the case involving the petitioner, presently under investigation, is for offences under Sections 420/406 IPC. Clearly, the said offences are not included in Section 82(4) Cr.P.C. Following the law laid down in the case of Rahul Dutta (supra), the proclamation under Section 82 Cr.P.C. against the petitioner could not have resulted in she being declared "proclaimed offender". In terms of the process that had been issued under Section 82(1) Cr.P.C., and on the Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 28 of 35 basis of the statement of the process server recorded by the learned Magistrate on 12.07.2012, the petitioner could only have been declared a "proclaimed person" in terms of Section 82(1) Cr.P.C.", this adopting the phraseology used with approval in the case of Rahul Dutta (supra).
49.For the foregoing reasons, the order dated 12.07.2012 of the Metropolitan Magistrate deserves to be modified. It is, thus, directed that instead of being declared a proclaimed offender, the petitioner shall be treated as a "proclaimed person" under Section 82(1) Cr.P.C. in the case. Ordered accordingly.
50.As per report dated 26.02.2012 of SI Harpal Singh (Ex. CW 1/B) on the attachment warrant under Section 83 Cr.P.C., the house of the petitioner was subjected to attachment by it being sealed. Since the order issued attachment under Section 83 Cr.P.C. has been found to be illegal and consequently set aside, the action taken on the said process is bound to be undone. The house in question thus stands released from attachment. But since, as per report, the house belongs to the petitioner, its possession will have to be restored to her by SHO Police Station Sangam Vihar. After all, he having got the property sealed cannot simply abandon it. The SHO Police Station Sangam Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 29 of 35 Vihar shall do the needful immediately upon the petitioner approaching him for the purpose.
51. It is the order issuing attachment warrant under Section 83 Cr.P.C. simultaneous with the issuance of proclamation under Section 82 Cr.P.C. which has been held to be illegal and consequently set aside. For removal of doubts, it must be added that this will not in any way be construed as detracting the jurisdiction of the concerned authorities (the police and the magistrate) from taking resort to the provision contained in Section 83 Cr.P.C. to compel the appearance of the petitioner, should she continue to evade to do so. Action of such nature, however, if taken must be in accordance with law. At the same time, the petitioner is reminded that having been declared a proclaimed person under Section 82 (1) Cr.P.C. it is her obligation to immediately present herself before the concerned Metropolitan Magistrate without any further delay or default.
52.The revision petition stands disposed of with above observations/directions.
53.Before parting, it is necessary to make certain further observations and issue certain further directions.
54.The problem arising out of the orders recorded by the Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 30 of 35 Metropolitan Magistrates by hand on the face of applications of the investigating officer, that too not disclosing in any manner the full particulars of the judicial functionaries issuing the same and with no mention of the jurisdiction that was being exercised, have been noted at sufficient length in the earlier part of this order. Further difficulties arose (as pointed out by the counsel for the petitioner and as confirmed upon perusal of the trial court record on it being requisitioned), on account of the documents and court proceedings having not been preserved as part of the court record and instead being allowed to be taken away unauthorisedly by the I.O If one were to add the fact that some judicial orders continue to be unavailable (even though seemingly passed), confusion galore seems to be prevailing. This needs a little more elaboration.
55.When the revision petition came up for hearing for the first time on 04.05.2013, it was pointed out by the office that even uncertified copies of orders dated 05.11.2011 and 17.12.2011 had not been filed by the petitioner. When asked the counsel for the petitioner explained that the said orders were not available on the judicial file and rather the information was that they had been placed in the police file in the control and custody of the Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 31 of 35 I.O. This submission was found to be factually correct when the judicial record as well as police file were requisitioned and perused on 16.05.2013. The status of the trial court record (as on that date) showed that neither the application dated 31.10.2011 on which NBWs were ordered to be issued on 05.11.2011 nor the original NBWs issued for return on 17.12.2011, nor the application dated 17.12.2011 (on which processes under Sections 82/83 Cr.P.C. were ordered), nor indeed even the said processes under Sections 82/83 Cr.P.C. could be located on the judicial file. Instead, the said entire material (which included the reports under Sections 82/83 Cr.P.C. duly exhibited on 12.07.2012 in the statements of CW1) had been kept on the police file in the control of the I.O.
56.In view of the above facts, an explanatory report was called from the Metropolitan Magistrate besides suitable directions issued for the record in question to be taken over from the police. Necessary compliance was later made by Sh. Ajay Garg, Metropolitan Magistrate vide his proceedings dated 17.05.2013.
57. As mentioned earlier, the processes under Sections 82/83 Cr.P.C. had been issued on 17.12.2011 made returnable on 22.05.2012. The trial court record would not show any Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 32 of 35 proceedings to have been drawn on 22.05.2012. The counsel for the petitioner pointed out on 24.05.2013 that the matter was actually taken up by Ms. Gomati Manocha, Metropolitan Magistrate on 22.05.2012 and on the basis of report regarding nonavailability of the process server she had adjourned it to 05.06.2012. An order to such effect had been traced by the counsel for the petitioner on the website of the District Courts. A copy downloaded from the website was made available by him. Yet, the original order passed on 22.05.2012 is still reported to be untraceable. There is no trace either of the proceedings recorded on 05.06.2012 to which matter seems to have been adjourned by Ms. Gomati Manocha, Metropolitan Magistrate on 22.05.2012. It is any body's guess as to how the matter reached 12.07.2012 when the statements of the process server were recorded and the petitioner, interalia, declared proclaimed offender.
58.The manner in which the orders have been passed (as mentioned earlier) and the manner in which record has been maintained by the court of Metropolitan Magistrate has given a serious cause for concern. It reflects poorly on the management and control over resources by the court below. It has led to inconvenience to Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 33 of 35 all concerned, including the counsel for the petitioner who was at pains to find facts even by way of inspection and certified copies which were elusive. Even now the trial court record seems to have been maintained in a most illogical and disorderly manner. The papers have been tagged together without reference to chronology or precedence.
59.It is necessary to issue administrative instructions to all magisterial courts of this Sessions Division so that such lapses do not recur in future. It is also necessary that the missing records are traced (or reconstructed) and responsibility in such regard and also for allowing documents/proceedings to be unauthorisedly taken away by the I.O. is fixed and follow up action taken for disciplinary action against erring court officials. Sh. Manoj Jain, Special Judge (P.C. Act), who is also deputed as Officer Incharge of the concerned branches (JudicialII and Vigilance) is requested to take all necessary followup action including issuance of formal circular(s) on the subject on the administrative side.
60.The trial court record be returned with copy of this order. A copy each shall be sent to the learned Officer Incharge (JudicialII/Vigilance) with reference to above mentioned Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 34 of 35 directions. A copy of the order shall also be sent to SHO Sangam Vihar for compliance with the directions.
61. File of the criminal revision petition be consigned to Record Room.
Announced in open Court today on this 31st day of May, 2013. (R.K. GAUBA) District & Sessions Judge (South) Saket / New Delhi.
Crl. Rev. No. 143/2013 Anita Aggarwal Vs. GNCT of Delhi & anr. Page 35 of 35