Delhi District Court
Surender Nath Saluja vs State on 8 August, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0301182011
CR NO: 53/2011
SURENDER NATH SALUJA
vs
STATE
SEEMA KHERA
In the matter of :
Surender Nath Saluja
S/o Late Sh. Buta Mal
R/o C475, Vikas Puri,
New Delhi. .......... Revisionist / accused
vs
1.State
2.Seema Khera
W/o Sh. Suresh Khera
R/o E204, New Rajendera Nagar,
New Delhi60. ......Respondents
Revision petition under Section 397 of Cr.P.C against the order dated 7.6.2011.
Date of Institution : 11.07.2011 Date of final hearing : 08.08.2011 Date of order : 08.08.2011 ORDER ON REVISION
1. By this order I shall dispose off revision preferred by revisionist accused against the order of Ld. Magistrate dated 7.6.2011whereby non bailable warrants of arrest were issued against revisionist.
Page 1 of Revision Surender Nath Saluja Vs. State & Seema Khera of 6 pages 2
2. I have heard Ld. Counsel Sh. Rajive Thukral Advocate for Revisionist and Ld. Addl. PP Sh. G.S.Guraya for State . None has appeared on behalf of respondent no.2 despite issuance of notice through process server as well as through Regd. AD.
3. Brief facts necessary for disposal of this revision are that on 16.7.1998, respondent No.2 Smt. Seema Khera filed a criminal complaint against the revisionist herein and seven other persons for commission of offence punishable U/s 420/120B IPC. Pre summoning evidence was led and revisionist herein along with seven other persons were summoned as accused vide order dated 16.9.06. After appearance was entered by the accused persons, the matter was posted for pre charge evidence on 26.8.2010. On that very day, revisionist / accused absented himself. Even though no exemption application was moved, Ld. Magistrate did not pass any adverse order against him. On the next date of hearing i.e. 21.12.2010 although this accused appeared but he sought adjournment for non availability of his counsel. On the adjourned Page 2 of Revision Surender Nath Saluja Vs. State & Seema Khera of 6 pages 3 date no proceeding could take place, owing to absence of one of the coaccused. On the next date i.e. 19.4.2011, revisionist absented himself and consequently non bailable warrants (NBWs) was issued against him. However, in the course of the day an exemption application was moved on his behalf and as such NBW was withheld. On the adjourned date as well i.e. 7.6.2011, revisionist absented himself and consequently vide impugned order Ld. Magistrate was constrained to issue NBW against him. Aggrieved with this order accused preferred to file revision.
4. As regards the maintainability of the revision against the order qua issuance of NBW, Ld. Counsel for revisionist has relied on Amarnath & Ors vs State of Haryana & Another (1977) 4 SCC
137. This Landmark judgment pertains only qua the interlocutory but it does not specifically referred to the order of issuance of NBW as the order which is not interlocutory. Ld. Counsel has also relied on Anand Rao vs State MANU/KA/0369/1992 wherein Hon'ble Bench of Hon'ble Karnatka High Court ruled that " an order of Page 3 of Revision Surender Nath Saluja Vs. State & Seema Khera of 6 pages 4 issuing NBW to a witness is not an interlocutory order." He also relied on case titled Ganapati and Ors. vs The State of Mysore1972 Crl. LJ 417 wherein it was held that "that an order of Magistrate canceling bail and issuing NBW was ruled to be revisable."
5. While opening his submissions, the first plea taken by Ld. Counsel for revisionist /accused is that his client could not appear on the date 7.6.2011 as he had gone to attend last rites of Late Sh. Narender Kumar, maternal uncle of revisionist's son in law. Photocopy of a news paper print is attached in support of this plea. On being asked, it is stat ed by revisionist that he had gone Surat by a train through ordinary ticket.
6. It is argued that even though exemption application was filed before Ld. Magistrate, the exemption was disallowed & a cost of Rs.3000/ was also imposed besides forefitting of his bail bond, issuance of NBW and 446 Cr.P.C. notice to his surety. On this score it is observed that in the impugned order , Ld. Magistrate Page 4 of Revision Surender Nath Saluja Vs. State & Seema Khera of 6 pages 5 took note of previous absences of the revisionist / accused while dismissing his exemption application with an observation that nothing has been placed to substantiate the ground. If a relation of an accused expired at an out station, just a day before, practically no person can be expected to give t he proof thereof. Further more, in the fitness of the thing each exemption application has to be dealt with and disposed off on the basis of its own merits. The order of Ld. Magistrate of imposing cost on the accused / revisionist even though an exemption was sought for attending last rites of his relative, is on the harsher side. Even otherwise, it goes without saying that, if for any reason, an accused is seeking exemption through his counsel for justifiable reasons, this does not stall the trial in case if the accused has no objection in recording of evidence in his absence and he agrees to not to dispute his identity. Concern of Ld. Magistrate qua delaying tactics adopted by the accused is appreciated but for the foregoing reasons, the impugned order dated 7.6.2011 can not be sustained as against Page 5 of Revision Surender Nath Saluja Vs. State & Seema Khera of 6 pages 6 the revisionist / accused Surender Nath . As such the portion of the impugned order which relates to accused Surender Nath is hereby set aside. Revision is accordingly allowed. Accused Surender Nath is directed to remain regular in his appearances during the trial and shall appear before Ld. Trial Court on date already fixed i.e. 17.8.2011. TCR be sent back with the copy of order. Revision file be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON: 8.8.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 6 of Revision Surender Nath Saluja Vs. State & Seema Khera of 6 pages 7 Page 7 of Revision Surender Nath Saluja Vs. State & Seema Khera of 6 pages