Delhi District Court
Firoz vs State (Nct Of Delhi) on 9 February, 2023
IN THE COURT OF MS. SHALINDER KAUR:
PRINCIPAL DISTRICT & SESSIONS JUDGE:
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
Criminal Revision No.523/2022
1. FIROZ
S/o Sh. Rashid
2. NAZMEEN @ BABBO
D/o Sh. Rashid
Both R/o Village Raipur Khurd,
P.S. Amroha Dehat, Distt. Amroha, UP
At present in Delhi. .....REVISIONISTS
VERSUS
STATE (NCT OF DELHI) .....RESPONDENT
Date of Filing : 14.12.2022
Date of Decision : 09.02.2023
ORDER
1. The present revision petition has been preferred under Section 397/399 of the Code of Criminal Procedure, 1973 (in short 'CrPC') assailing the orders dated 05.07.2022 and 08.09.2022 (in short 'impugned orders'), passed by Ms. Shikha Chahal, Ld. MM-11 (South-East), Saket Courts, Delhi (in short 'Ld. Trial Court') in FIR No.214/2022 police station Shaheen Bagh whereby the accused persons/ revisionists herein were declared 'Proclaimed Offender'.
2. Sh. Fazil Khan, Advocate addressed arguments on behalf of the revisionists, Sh. Salim Khan, Ld. Chief Public Prosecutor made submissions on behalf of the State and Sh. Mahtab Ali and CR No.523/22 Page 1 of 10 Firoz & Anr. vs. State of NCT of Delhi Md. Shahzad Ansari, Advocates made submissions on behalf of the complainant. Apart from hearing arguments, the record including the Trial Court Record and the case law cited by revisionists has been perused meticulously.
BRIEF FACTS
3. On the complaint of complainant Munawwar S/o Sh. Shaukat R/o M-105, 2nd Floor, Abul Fazal Enclave-I, Jamia Nagar, Okhla, Delhi, an FIR No.214/2022 under Section 454/380 IPC was registered at police station Shaheen Bagh on 08.06.2022 against some unknown person, alleging theft of Rs.63 Lacs from his aforesaid tenanted premises. During investigation, the police arrested one Rahil Hussain on 11.06.2022. On the basis of disclosure statement of Rahil Hussain, police raid was conducted in the house of accused Qamre Alam and Nahid who are brother- in-law and sister of accused Rahil. From there, police recovered Rs.8 Lacs out of the alleged stolen amount. The police investigation was in progress. The revisionists have pleaded that thereafter they came to know that police officials of police station Shaheen Bagh had obtained NBW against them on 21.06.2022 and proceeded for affixation of publication u/s 82 CrPC vide impugned order dated 05.07.2022. Consequent thereto, the revisionists moved individual applications dated 03.08.2022 before the Ld. Trial Court for cancellation of NBW and proclamation under Section 82 CrPC. However, the said applications were dismissed by the Ld. Trial Court vide order dated 26.08.2022. Thereafter, vide impugned order dated 08.09.2022, Ld. Trial Court declared the revisionists as 'Proclaimed Offender'.
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4. Shri Fazil Khan, learned counsel submitted that the prosecution wants to involve the revisionists in malicious and motivated registered FIR bearing No. 214/2022 under Section 454/380 IPC whereas the revisionists are neither named in the FIR nor any accusation has been levelled against them for having participated in the alleged offences. The case was not been properly investigated by the police but police has obtained NBW against the revisionists by misleading the court. Moreover, the police did not inform the Income Tax Department in case there was a theft of Rs.63,00,000/- as alleged by the complainant. Furthermore, no specification of the currency notes was provided by the complainant. Therefore, there is no legal way to identify the stolen money. It was submitted that the recovery of the alleged case property is motivated which might have been planted by the police to falsely implicate the accused persons. It was also submitted that the FIR was registered under Section 454/380 IPC, whereas the Sections 411/120/34 IPC were added subsequently to obtain process under Section 82 CrPC against the revisionists. It was submitted that the learned Trial Court has failed to appreciate the legal provisions regarding proclamation of an offender and issued the process under Section 82 Cr.P.C. without application of judicious mind. It was submitted that the revisionists have not been accused of any of the offence mentioned under Section 82(4) CrPC. Thus, the revisionists cannot be declared as Proclaimed Offenders. Therefore, the impugned order is patently illegal and bad in law. It was submitted that at the best the revisionists can be connected with offence punishable under Section 411 IPC which does not fall within the ambit of the offences mentioned in Section 82(4) CR No.523/22 Page 3 of 10 Firoz & Anr. vs. State of NCT of Delhi CrPC. The learned counsel further submitted that the revisionists could not join the investigation due to threats of use of coercive action by the police against them even though revisionists were always ready to join the investigation of the case. They have clean antecedents. It was thus submitted that the order dated 05.07.2022 and 08.09.2022 be set aside.
5. To support the arguments, the learned counsel has relied upon the judgments passed by Hon'ble High Court of Delhi in Arun Kumar Parihar Vs. State, Crl. M. C. No. 863/2021 decided on 26.03.2021 and Sanjay Bhandari Vs. State (NCT of Delhi), Crl. Rev. P. 223/2018 decided on 31.07.2018.
6. The arguments raised on behalf of the revisionists were vehemently opposed by the learned Chief Public Prosecutor. It was submitted that the revisionists are not cooperating in the investigation by not appearing before the Investigating Officer (in short 'IO') though he had taken steps to make enquiries from them on numerous occasions. They had deliberately been avoiding their arrest since 12.06.2022. It was submitted that raids had been conducted at the house of the revisionists but their house is found locked every time whenever the police visited there. The police accordingly contacted the Pradhan of their village who told the police that the family of the revisionists had not come to the village since 12.06.2022 and no contact could be made by them. The learned Chief Public Prosecutor also submitted that the revisionists had moved an anticipatory bail application before learned ASJ which was withdrawn as dismissed on 05.07.2022. It was also submitted that the revisionists had helped the co-accused Rahil Hussain to hide the CR No.523/22 Page 4 of 10 Firoz & Anr. vs. State of NCT of Delhi stolen money. The custodial interrogation is required and recovery of Rs.47,00,000/- is yet to be made. It was thus submitted that there is no merit in the revision petition.
7. The prime argument raised on behalf of the revisionists is that the revisionists had no role to play in the incident and commission of crime on 08.06.2022 for which FIR for offences punishable under Section 454/380 IPC was registered in police station Shaheen Bagh, Delhi. Moreover, they are also not named in the FIR. It is further the contention of the revisionists that they had not evaded to participate in the investigation of the case but as the police had been threatening them, therefore they could not join the investigations and the police obtained NBWs against them by misleading the court. The last contention raised on behalf of the revisionists is that the offences mentioned in the FIR No. 214/2022 are not covered under Section 82(4) CrPC. Thus, they could not have been declared proclaimed offenders and both the impugned orders dated 05.07.2022 and 08.09.2022 are bad in law and are liable to be set aside.
8. At the outset, it is to be noted that the facts of the case in case of Arun Kumar Parihar Vs. State (Supra) are distinguishable from the facts of the present revision petition.
9. In Arun Kumar Parihar Vs. State (Supra), the accused person in said case had sought quashing of the orders passed by the learned Trial court as well as issuance of non-bailable warrants against him. In the case, the petitioner / accused person had joined the investigation at EOW but did not give requisite desired answers to the investigating agency. The Hon'ble High Court of Delhi held as under :
CR No.523/22 Page 5 of 10Firoz & Anr. vs. State of NCT of Delhi "21.Apart from the above observations of the Law Commission, from a bare perusal of the Section (quoted earlier) it is manifest that it confers a power upon the class of Magistrates mentioned therein to issue warrant for arrest of three classes of person, namely, i) escaped convict, ii) a proclaimed offender and iii) a person who is accused of a non-bailable offence and is evading arrest. If the contention of Mr. Sibal that Section 204 of the Code is the sole repository of the Magistrate's power to issue warrant and the various Sections of part `B' of Chapter VI including Section 73 only lay down the mode and manner of execution of such warrant a Magistrate referred to under Section 73 could not - and would not
- have been empowered to issue warrant of arrest for apprehension of an escaped convict, for such a person can not come within the purview of Section 204 as it relates to the initiation of the proceeding and not to a stage after a person has been convicted on conclusion thereof.
22.That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this Section a police officer can investigate into a non cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non- cognizable and non-
bailable offence, (like Sections 466 or 467 (Part I) of the Indian Penal Code) and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evade the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his power under Section 73, for the person to be apprehended is `accused of a non-bailable offence and is evading arrest.' CR No.523/22 Page 6 of 10 Firoz & Anr. vs. State of NCT of Delhi
10. In the present revision petition, the incident had occurred on 08.06.2022. The coaccused Rahil was arrested by the police from Amroha, UP on 11.06.2022 and his disclosure statement was recorded. On the basis of his said disclosure statement, co accused Mohd. Nazim was arrested on 12.06.2022 who allegedly got recovered Rs.3,00,000/ from his house in Okhla. During the course of investigation, the police has also recovered Rs.5,00,000/ from Raipur Khurd, UP at the instance of accused Rahil from the house of his sister i.e. coaccused Nahida Akhtar. According to the prosecution, accused Rahil Hussain has disclosed that the revisionists, who are also his close relatives being his sister and brother, had received the stolen cash along with his another sister coaccused Nahida and her husband co accused Qamre Alam. According to the prosecution, all these four accused were absconding from being arrested, they had left their house since 12.06.2022 and never came back there. Further, several raids were conducted at their addresses in Amroha, UP but no one was found present at the address. Therefore, the NBWs were got issued against the accused persons on 05.07.2022. The proceedings under Section 82 CrPC were also initiated against coaccused Nahida Akhtar and Qamre Alam, who are stated to have been arrested.
11. It is to be noted that the learned Trial Court vide order dated 22.06.2022 had issued NBWs against the revisionists along with coaccused Nahida and Qamre after being satisfied that IO had taken steps to apprehend the said four accused persons but they were deliberately avoiding the execution of process with an CR No.523/22 Page 7 of 10 Firoz & Anr. vs. State of NCT of Delhi intent to evade and abscond. On 05.07.2022, an application was moved by the State for issuance of process under Section 82 CrPC against the revisionists and coaccused Nahida Akhtar and Qamre Alam. Considering the submissions of the State that the accused were not deliberately joining the investigation and evading their arrest intentionally since the amount of Rs.47 lacs was to be recovered from them the learned Trial Court had allowed the application for issuance of process under Section 82 CrPC which was returnable on 31.08.2022. According to the revisionists, the process under Section 82 CrPC could not have been issued against the accused persons as the offences punishable under Section 454/380 IPC does not fall within Section 82(4) CrPC.
12. Relevantly, on 26.08.2022, the revisionists had moved an application before the learned Trial Court for cancellation of their NBWs and process issued under Section 82 CrPC but the same was disposed of as dismissed by the learned Trial Court. The said order has not been challenged by the revisionists. Thereafter, on 08.09.2022, the learned Trial Court after recording the statement of the process server who had executed the process under Section 82 CrPC against the revisionists and after following the due process had declared them as proclaimed offenders.
13. It is relevant to mention that in the judgment Sanjay Bhandari Vs. State (Supra), the Hon'ble High Court of Delhi considered the issue that if the petitioner has not been accused of any of the offences mentioned in Section 82(4) of the Criminal CR No.523/22 Page 8 of 10 Firoz & Anr. vs. State of NCT of Delhi Procedure Code, 1973 still can be declared as a proclaimed offender. It was held as under :
"28. Under section 82 (1) Cr.P.C. a proclamation can be issued only against a person against whom a warrant has been issued and has absconded or is concealing himself so that such warrant cannot be executed. Clearly, the scope and operation of sections 174 and 174A are different. However, there may be an overlap in their operation but largely they operate in different spheres. Persons covered by section 174A second part would be a sub set of persons covered by section 174A first part who in turn would be subset of persons covered by section 174 IPC.
29. Further it may be seen that sections 83, 84 and 85 Cr.P.C., which provide for attachment of property of person absconding, claims & objections thereto and release, sale and restoration of attached properties of persons qua whom a declaration under section 82 has been issued, uses the expression 'Proclaimed Person'.
14. The law is well settled that the proclamation can be issued against an accused by a court under Section 82(1) of the Cr. PC who either evades the issuance of warrant against him or conceals himself in such a manner that the warrant cannot be executed against him. In the judgment Sanjay Bhandari vs. State (Supra) the Hon'ble High Court of Delhi has further held as under:
"30. The provisions of Section 82 to 84 become applicable on the issuance of the proclamation and are not dependent on the declaration under section 82(4).
31. I am thus of the view that a person who is accused of offences other than the ones enumerated in section 82(4) and qua whom a proclamation has been published under section 82(1) would be a 'Proclaimed person' and not a deemed 'Proclaimed Offender'.CR No.523/22 Page 9 of 10
Firoz & Anr. vs. State of NCT of Delhi
32. As noticed above, there is no provision other than section 82(4) for pronouncing such a person as a proclaimed offender and 82(4) applies only in respect of persons accused of sections of IPC enumerated therein."
15. Interestingly, the revisionists had also preferred the application to seek anticipatory bail which they have stated to have withdrawn from the court of learned ASJ.
16. In view of the above discussions, there is no illegality or infirmity in the order dated 05.07.2022. However, the order dated 08.09.2022 is modified to the extent that as the offences mentioned in FIR No. 214/2022 do not fall within the purview of Section 82(4) CrPC, therefore the revisionists cannot be declared as "proclaimed offenders" but would be "proclaimed persons"
and would be without prejudice to the action initiated against them for failure to appear in terms of the proclamation issued. The revision petition is disposed of accordingly.
17. TCR be sent back along with copy of this order. Revision file be consigned to Record Room.
Announced in the open court (SHALINDER KAUR) th on 9 February 2023 Principal District & Sessions Judge, South East, Saket Courts NEW DELHI CR No.523/22 Page 10 of 10 Firoz & Anr. vs. State of NCT of Delhi