Delhi District Court
Manav Chandra vs State on 15 December, 2012
-1-
IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision No. 78/12
Manav Chandra
B-342, Sushant Lok-1,
Gurgaon - 122 001 ... revisionist
Versus
State ... Respondent
Date of institution of the revision : 01.12.2012
Date of arguments : 11.12.2012
Date of disposal : 15.12.2012
Revision u/s 397 of the Code of Criminal Procedure, 1973
against the order framing notice of Ld. MM
dated 21.08.2012
ORDER
15.12.2012 1.0 Vide this revision, the revisionist has challenged order dated 31.10.2012 of Ld. MM-03/ND taking cognizance of offence under Section 174A of The Indian Penal Code, 1860 (IPC) against the revisionist.
2.0 Facts in brief as per record are that in complaint u/s 138 Negotiable Instruments Act, 1881 (in short NI Act) bearing CC No. 188/1/12, titled as "Uma Kant Tripathi Vs. Pal Infrastructure and Developers Pvt. Ltd. & Anr.", the revisionist did not appear; proceedings u/s 82 Cr.PC against him were Cri. Revision No.78/12 Page No. 1 of 9 Manav Chandra Vs. State -2- initiated; during the pendency of the proceedings, revisionist / his advocate appeared and the settlement was being explored between the parties; as the compromise could not materialise, the complainant filed an application for directions to SHO, PS Tilak Marg to register FIR u/s 174A IPC against the revisionist; however, subsequently the matter u/s 138 NI Act got settled between the parties and the accused / revisionist were acquitted of the offence u/s 138 read with 142 NI Act vide order dated 19.11.2012; but, the matter was proceeded with, for trial of offence u/s 174A IPC.
3.0 The revisionist has challenged the impugned order on the grounds inter-alia that the Ld. MM took cognizance of the offence u/s 174A IPC without there being a proper proclamation u/s 82 Cr.PC; the proceedings u/s 138 NI Act were not in the knowledge of revisionist as he was never duly served; he came to know about the same from the complainant, who also informed that he has been declared Proclaimed Offender; soon thereafter, his Advocate put in appearance on his behalf on 28.08.2012, as he was not available on that day and filed an application for stay of the proceedings u/s 82 Cr.PC; meanwhile, the Process-server, who allegedly executed the process u/s 82 Cr.PC got recorded his statement on that day i.e. 28.08.2012; the matter was adjourned by the Ld. MM to 13.09.2012 for consideration of the statement of the Process-server; the Ld. MM, however, did not consider the Process-server's statement and did not record in writing his satisfaction as contemplated u/s Cri. Revision No.78/12 Page No. 2 of 9 Manav Chandra Vs. State -3- 82 (3) Cr.PC; the Ld. MM erred in concluding that the revisionist was intentionally concealing himself to avoid execution of warrants, ignoring several reports of the Process-server to the effect that the revisionist could not be served in the absence of proper name / address of the company; the Ld. MM failed to appreciate that the summons / process was never served upon the revisionist.
4.0 On the other hand, Ld. Additional PP sought dismissal of this revision petition on the ground that the Ld. MM rightly took cognizance of the offence u/s 174A IPC as per the record.
5.0 I have heard Ld. Counsel for the revisionist, Sh. Rajat Katyal and Ld. Additional PP Sh. R. K. Pandey for the State.
6.0 Let me refer to Section 82 Cr.PC and Section 174A IPC, at the outset, which read 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 Cri. Revision No.78/12 Page No. 3 of 9 Manav Chandra Vs. State -4- specific 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 ;
(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 Court-house;
(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 Cri. Revision No.78/12 Page No. 4 of 9 Manav Chandra Vs. State -5- that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (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) .........."
S. 174 IPC
"174-A. Non-appearance 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 sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 (2 of 1974) 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."
7.0 Perusal of the Trial Court Record reveals that as Cri. Revision No.78/12 Page No. 5 of 9 Manav Chandra Vs. State -6- neither summons nor NBWs could be executed, the Ld. MM issued process against the revisionist u/s 82 Cr.PC vide order dated 28.04.2012. On receipt of process u/s 82 Cr.PC on 17.08.2012, the Ld. MM posted the matter for examination of the Process-server, (who executed the process u/s 82 Cr.PC) against the revisionist for 28.08.2012.
7.1 On 28.08.2012, Sh. Sandeep Tyagi, Advocate appeared on behalf of the revisionist herein and filed Vakalatnama. Ld. Counsel for the revisionist also filed two applications - an application seeking exemption from personal appearance on behalf of the revisionist on the ground that he was out of station due to some urgent official work; and another application for stay of the proceedings u/s 82 Cr.PC on the ground that the revisionist was willing to settle the matter with the complainant and that he shall make the payment on the next date of hearing. The statement of Process-server Ct. Vikas was also recorded on that day. Ld. MM while dismissing the application for exemption, posted the matter for 13.09.2012 for consideration of the statement of Process-server.
7.2 On 13.09.2012, the revisionist was present alongwith his Advocate. On that day, an application was filed by the complainant for directions for registration of FIR against the revisionist u/s 174A IPC. The matter was adjourned to 29.09.2012 for consideration of the said application. On the next date of hearing i.e. 29.09.2012 also the Advocate for accused / Cri. Revision No.78/12 Page No. 6 of 9 Manav Chandra Vs. State -7- revisionist was present; he again made a submission that revisionist was willing to settle the matter. However, the complainant expressed his unwillingness and, thus, the matter was again adjourned to 16.10.2012 for consideration of complainant's application for registration of FIR.
7.3 On 16.10.2012, the accused / revisionist was again represented by his Advocate Sh. Sandeep Tyagi. It appears that the counsel for the revisionist tendered to the complainant, cheque amount alongwith Rs.10,000/- towards litigation charges but, the complainant refused to accept the same. As a result, the matter was again adjourned for consideration of complainant's application u/s 174A IPC to 25.10.2012 and, thereafter, to 31.10.2012, on which date i.e. 31.10.2012, the Ld. MM took cognizance of offence u/s 174A IPC, which is under challenge before this Court. It may be mentioned that subsequently on 19.11.2012, the complaint u/Ss 138 / 142 NI Act got settled and the accused / revisionist was acquitted of the offence u/s 138 NI Act.
8.0 From the above record, it is seen that process u/s 82 Cr.PC was issued for 17.08.2012. On 17.08.2012, as the accused / revisionist did not appear, the matter was adjourned for examination of the Process-server to 28.08.2012. Advocate on behalf of the revisionist appeared on 28.08.2012 and even on subsequent dates. Even accused / revisionist had appeared on 13.09.2012.
Cri. Revision No.78/12 Page No. 7 of 9Manav Chandra Vs. State -8- 8.1 It may be mentioned that Chapter-VI of Cr.PC deals with the "Processes to Compel Appearance". The object of proclamation u/s 82 Cr.PC is to ensure the appearance of the accused. On failure of appearance of the accused, the Court can proceed u/s 83 of the Code to attach the accused's property to compel his appearance. In the instant case, the accused / his advocate had put in appearance, of course, after issuance of process u/s 82 Cr.PC.
8.2 It is noteworthy that, with insertion of Section 174A IPC vide the Code of Criminal Procedure (Amendment) Act, 2005 (w.e.f. 23.06.2006), non appearance by the accused pursuant to publication of proclamation attracts penal consequences. It is settled position of law that such provisions which attract penal consequences must be strictly construed and complied with. It is noted that after recording the statement of Process-server on 28.08.2012, although, the matter was adjourned by the Ld. MM for consideration of the same. But, there is nothing on record to show that the said statement was considered. It is also noted that the Ld. MM did not record his satisfaction / statement in writing as contemplated u/s 82 (3) Cr.PC.
8.3 In absence of any statement in writing by the Ld. MM about his satisfaction to the effect that the proclamation was duly published on a specified day and in the manner as specified in clause (i) of sub section (2) of Section 82, the requirement of Section 82 Cr.PC was not strictly complied with;
Cri. Revision No.78/12 Page No. 8 of 9Manav Chandra Vs. State -9- the proclamation cannot, therefore, be stated to have been duly made.
9.0 In view of the above, the impugned order is set aside. Revision is allowed.
Trial Court Record be sent back along with the copy of this order.
Revision file be consigned to the Record Room.
Announced in open Court (Poonam A. Bamba) Date : 15th December, 2012 ASJ-01/PHC/New Delhi Cri. Revision No.78/12 Page No. 9 of 9 Manav Chandra Vs. State