Tuesday, 21 November 2017

Bail in false rape cases in Delhi India

                   "Rape is one of the most barbaric and heinous crimes not only against the victim of the rape but also against the society as a whole. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, I am also constrained to observe here that no one should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta."
            "There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close". It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues"
Rape is a crime against one's mind, psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protestedto condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment. The Government also promptly appointed Justice J.S. Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women.
Undoubtedly there is a manifold increase in the crime concerning rapes, but all the rape cases which are filed have their own individual story and factual matrix. While most of the cases may be genuine, wherein the girl is a victim of this horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl but there may be cases where both persons out of their own will and choice, develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship with a man but when the relationship breaks due to one or the other reason, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her. Out of anger and frustration, they tend to convert such consensual sex as an incident of rape, defeating the very purpose of the provision. There is a clear demarcation between rape and consensual sex and in cases where such controversies are involved, the court must very cautiously examine the intentions of both the individuals involved and to check if even the girl on the other hand is genuine or had malafide motives. Cases like these not only make mockery of the sacred institution of marriage but also inflate the statistics of rape cases which further deprecates our own society.


                             IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                                BAIL APPLN. 311/2013
         ROHIT CHAUHAN
                                                                                                              ..... Petitioner
                            Through Mr. B.S. Rana with Mr.T   Mr.VijenderBhardwaj and
                                       Mr. Satyam Sisodiya, Advs.
                            Versus

         STATE NCT OF DELHI
                                                                                                                  ..... Respondent
                            Through Mr. Navin Sharma, APP for the State.
                                       Mr.MasroorAlam Khan, Adv. for the
                                       complainant.
         CORAM:
            HON'BLE MR. JUSTICE KAILASH GAMBHIR
              ORDER  :  22.05.2013
1. By this application filed under Section 438 Cr.P.C. the petitioner seeks grant of anticipatory bail.
2. The petitioner herein is accused of committing the offence under Sections 376/506/328 IPC in FIR No. 39/2013 registered with PS Rani Bagh. As per the prosecuterix, Ms.Rupali Thakur it is alleged that she had an affair with the petitioner, RohitChauhan for the last 3 years and during this period the petitioner had physical intimacy with her on the promise that he would marry her.
3. As per the complainant, who is present in court, the petitioner took the Bail Appn. 311/2013 Page 1 complainant to his house at Rishhi Nagar, Rani Baghon 14.2.2010 on the pretext of introducing her to his mother, but since there was no one present in his house, he forcibly had physical relationship with her. It is also the case of the prosecutrix, that when she tried to shout, then the petitioner daunted her that he would kill her and defame her and at the same time he asked her not to worry as he loved her and would marry her butif in case she discloses the said relationship to anyone then the petitioner would harm himself physically. It is also the case of the prosecutrix that the petitioner also gave certain pills to her so that she would not conceive. It is further alleged by the prosecutrix that the petitioner also threatened to kill her family members and to show her obscene videos to her parents and upload the same on 'YouTube', if she dared to refuse to maintain physical relations with him. It is also the case of the prosecuterix, that on 9.7.2012, the petitioner administered some drug in her cold drink, which she drank and again was forced to have physical relations with him. It is also the case of the prosecuterix that on 13.7.2012, she filed a complaint at Police Station, Shalimar Bagh which was later transferred to Police Station Rani Bagh, where the petitioner and his family members were called by the police and they gave assurance that they will arrange the marriage of the petitioner with the complainant only if the complainant withdraws the said complaint. As per the complainant, the marriage was solemnized at AryaSamajMandir, Bail Appn. 311/2013 Page 2 HaritVihar, Burari, Delhi on 10th August, 2012, where the family of the petitioner i.e. his mother Kiran, brother Kitty, cousin brother Vishnu Yadav, petitioner's MassiPoonam, petitioner's other Massa and Massi were all present. It is also the case of the prosecutrix that after the solemnisation of the said marriage, the petitioner did not take her to his house even for a day and rather after two days of marriage, the petitioner and his family members took the prosecutrix to AryaSamajMandir, beat her and forcibly took her signatures on one paper for dissolving the said marriage. It is also the case of the prosecuterix that after the marriage, the petitioner and his family members visited her locality several times and abused her besides creating nuisance outside her house. It is also the case of the prosecuterix that her sister was also threatened whenever she used to go to her school. It is also the case of the prosecuterix that on 3.11.2012, she again made a complaint against the petitioner and his family members in Police Station Shalimar Bagh, and when they were called by the police, they had demanded for one flat and Rs. 20 lakhs if the prosecutrix wanted to live with them. Thereafter, a complaint was filed by the prosecutrix with the Crime Against Women Cell, Maurya Enclave, so as to pursue her complaint dated 13th July, 2012.

4. Advancing the arguments on behalf of the petitioner, Mr. B.S. Rana, Advocate, submits that the petitioner was abducted from his residence on 9.8.2012 at about 9 p.m. and he was severely beaten by the police in the Bail Appn. 311/2013 Page 3 police station and was taken to AryaSamajMandir, HaritVihar, Burari, Delhi, where he was forced to solemnize the aforesaid marriage with the complainant. To support his arguments counsel for the petitioner placed reliance on some of the photographs placed on record wherein the petitioner can be seen in a track suit and some police officials taking photographs of the marriage from his mobile. It is also the case of the petitioner that the complainant extorted a sum of Rs. 2.50 lakhs form the petitioner and his family for getting the said marriage dissolvedand vide settlement deed dated 10th August, 2012, which was duly signed by both the parties and their relatives, the said marriage was declared null and void. It is also the case of the petitioner that on 22nd January, 2013, the mother of the petitioner lodged a complaint with the Commissioner of Police to bring correct facts to the knowledge of the police, as to how the petitioner was forced to marry the prosecutrix and how he was blackmailed to pay the said amount of Rs. 2.50 lakhs to the prosecutrix. It is also the case of the petitioner that when the mother of the petitioner lodged a complaint, it is only thereafter that the respondent got the said case registered against the petitioner on 30th January, 2013. Counsel for the petitioner further submits that the petitioner and the complainant were known to each other for the last three years and during that period, both of them startedloving each other and the physical intimacy shared by both of them was consensual and therefore, there is no question of the Bail Appn. 311/2013 Page 4 petitioner ever raping the complainant. Counsel also submits that the petitioner had already filed a civil suit to seek decree of declaration to declare the said marriage as null and void and the said suit is pending disposal before the civil Court. Counsel furtherstates that after solemnization of the said marriage the complainant lodged a complaint against the petitioner after a gap of almost 3 years.
5. Counsel for the petitioner further submits that the complainant never challenged the said deed of cancellation of marriage and the said complaint was lodged by the prosecutrix only with a view to extort more money from the petitioner and his family. During the course of the arguments, counsel for the petitioner has also placed on record certain photographs indicating as to how advance the complainant is. Counsel further submits that the photographs make it apparent that the prosecutrix can be seen dressed inappropriately, having beer while sitting next to some boy. It could also be seen that she is lighting cigarette for him.
6. Based on the above submissions, counsel for the petitioner submits that the petitioner has been falsely implicated by the respondent in the present case.
7. The present bail application of the petitioner has been strongly opposed by Mr Navin Sharmalearned APP for the State duly assisted by the counsel representing the complainant. Mr Navin Sharma submits that the petitioner sexually exploited the prosecutrix on the assurance of marrying Bail Appn. 311/2013 Page 5 her although he never intended to do so. Counsel also submits that there are specific allegations levelled by the complainant against the petitioner, forcing the complainant to have sexual relations with her and on many occasions he even threatened to kill her and defame her. On one occasion he even mixed some drug in her cold drink and thereafter, shared physical intimacy with her. He also blackmailed the complainant that he would upload her pictures/ videos on the 'YouTube' if she refused to maintain sexual relations with him. Counsel further submits that the petitioner was never forced to marry the complainant but the police officials were deployed by the area SHO in civil uniform to ensure that no untoward incident takes place at the time of solemnization of the marriage. Counsel also submits that the petitioner has forged and fabricated the deed of divorce dated 11th August, 2012 as on enquiry it was found that the said divorce deed was never notarized by SaritaGarg, Advocate. Counsel also submits that as per the complaint dated 22.1.2013 filed by the mother of the petitioner to the SHO Shalimar Bagh, the prosecutrix left for Jaipur immediately on the following day of the said marriage and she had returned to Delhi after 3 days. Counsel for the State further submits that if as per the mother of the petitioner she was at Jaipur on the following day of her marriage then how could she have signed a divorce deed and got the same attested from the notary.
8. I have heard learned counsel for the parties at considerable length and Bail Appn. 311/2013 Page 6 given my anxious consideration to the arguments advanced by them. Before I proceed to decide the aforesaid bail application, it would be pertinent to discuss some recent judgments in the said context.

9. The judgment of the Apex Court, in the case of Deepak Gulati V. State of Haryana,Criminal Appeal No. 2322/2010, the Hon'ble Supreme Court while dealing with an appeal filed by the appellant convicted for the offence punishable under Sections 365 and 376 of the Indian Penal Code, 1806, held as under:-
"14. The undisputed facts of the case are as under: I. The prosecutrix was 19 years of age at the time of the said incident.
II. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married. III. The appellant had been giving her assurance of the fact that he would get married to her.
IV. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another. V. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.
18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise.
Bail Appn. 311/2013 Page 7
21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.
22. The instant case is factually very similar to the case of Uday (Supra), wherein the following facts were found to exist:
I. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. II. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor.
III. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact that had arisen from his promise to marry her.
IV. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.
23. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-
decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karnalake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, Bail Appn. 311/2013 Page 8 and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the police.

24. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore-mentioned fact situation."\
10.While dealing with the anticipatory bail application of an accused of committing the same offence, this Court in the case of Mohd. Iqbal V. State , Bail Application no. 2145 of 2009, held as under:-
"There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close". It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues"
11. In another bail application No. 1760 of 2012 dealing with the same offence, this Court held as under:-
"Rape is one of the most barbaric and heinous crimes not only against the victim of the rape but also against the society as a whole. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth Bail Appn. 311/2013 Page 9 that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, I am also constrained to observe here that no one should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta."
12.It is appalling to see that rape rears its ugly facade almost every day. As per the National Crime Record Bureau, in India, a rape is committed every 20 minutes. Rape being the fastest growing crime is undoubtedly one of the most deplorable, belligerent and atrociousact committed against the dignity of a woman. Rape has been held to be even more serious than murderwhich not only destroysthe woman physically but also shatters her innerself by destroying her each living moment emotionally and psychologically.
13. Rape is a crime against one's mind, psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protestedto condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment. The Government also promptly appointed Justice J.S. Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women.

Bail Appn. 311/2013 Page 10
14.Undoubtedly there is a manifold increase in the crime concerning rapes, but all the rape cases which are filed have their own individual story and factual matrix. While most of the cases may be genuine, wherein the girl is a victim of this horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl but there may be cases where both persons out of their own will and choice, develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship with a man but when the relationship breaks due to one or the other reason, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her. Out of anger and frustration, they tend to convert such consensual sex as an incident of rape, defeating the very purpose of the provision. There is a clear demarcation between rape and consensual sex and in cases where such controversies are involved, the court must very cautiously examine the intentions of both the individuals involved and to check if even the girl on the other hand is genuine or had malafide motives. Cases like these not only make mockery of the sacred institution of marriage but also inflate the statistics of rape cases which further deprecates our own society.
15. In the facts of the present case, here is a complainant who appears to be quite an ultra-modern lady with an open outlook towards life, enjoying alcohol in the company of menwhich is evident from the photographs placed on record, which have not been denied by the prosecutrix present in court.She does not appear to be such a vulnerable lady that she would not raise her voice on being immensely exploited over such a long period of time. As per the prosecutrix, she had a physical relationship with the petitioner for the last more than 2 ½ years and it is not just a single act of sharing physical intimacy but the same continued for almost a long period of three years. There lies a possibility that the petitioner might have then refused to marry the prosecutrix and this refusal on the part of the petitioner gave a serious jolt to the prosecutrix who then with the help of police, solemnized the marriage with him, in the wee hours of the night when petitioner was in his casual apparels(track suit). It is only on 30.01.2013, that the complainant raised her voicefor the first time and made allegations of rape against the petitioner. It is an admitted case that the said marriage ultimately did not consummate as the complainant was never brought to the matrimonial home and the petitioner has already filed a civil suit to seek decree of declaration for declaring the said marriage as null and void.
16.The court can also not be oblivious of the fact that the marriage between the complainant and the petitioner had indeed taken place and both the parties have not disputed this fact. Therefore, this circumstance by itself entitles the petitioner to the grant of the anticipatory bail. We are not commenting here upon the circumstances which led to the solemnisation of the said marriage as there is a civil suit already pending before the court.It would be worthwhile to mention that being the victim of such a reprehensible crime, one should lodge a complaint immediately, or within a reasonable period of time unless there are sufficient reasons to explain the long delay. Delay in lodging an FIR, in such like cases can ultimately diminish the chances of conviction, as due to such delay, the medical evidence and the other circumstantial evidence may rarely be available to support the case of prosecution.
17.It is a settled position of law, that every case is to be dealt based on its individual factual matrix and no set principle or straight jacket formula can be applied specifically while dealing with bail matters where only prima facie view can be taken to appreciate the facts in a given case.
18. Considering the facts of the present case, in light of the aforesaid discussion and the material on record, I am inclined to grant anticipatory bail to the petitioner. Accordingly in the event of arrest, the petitioner shall be released on bail subject to furnishing of his personal bonds in the Bail Appn. 311/2013 Page 13 sum of Rs. 50,000 with one surety of the like amount to the satisfaction of the arresting officer.

19. It is directed that the petitioner and his family members shall not visit the prosecutrix or try to intimidate her.
20. The present anticipatory bail application stands disposed of. It is ordered accordingly.
Dasti.
                                                    KAILASH GAMBHIR, J
MAY     22, 2013





Thursday, 27 July 2017

Misuse of sec.498-A IPC Dowry Laws in India Supreme Court Judgments.

Misuse of sec.498-A IPC Dowry Laws in India Supreme Court Judgments.

. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-

i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

 (b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

 (c) The Committee members will not be called as witnesses.

 (d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

 (e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

 (f) The committee may give its brief report about the factual aspects and its opinion in the matter.

 (g) Till report of the committee is received, no arrest should normally be effected.

 (h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

 (j) The Members of the committee may be given such honorarium as may be considered viable.

 (k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

 ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The 18 training may be completed within four months from today;

 iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

 iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

 v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

 vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

 vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

 viii) These directions will not apply to the offences involving tangible physical injuries or death.

 After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services 20 Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018. 21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action. 22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions


1 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 1265 OF 2017
[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]
Rajesh Sharma & ors. …Appellants Versus State of U.P. & Anr. …Respondents
J U D G M E N T
 Adarsh Kumar Goel, J
Leave granted.
 2. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Shri Nadkarni and learned senior counsel Shri Giri who in turn was 2 ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.

 3. Proceedings have arisen from complaint dated 2nd December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014 read as follows:
 “After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand. It appears that he has tortured the complainant. 3
 So far as torture and retaining of the stri dhan and demanding 50,000 and a gold chain and in not meeting the demand the torture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence under Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.”

 4. Against the above order, respondent No.2 preferred a revision petition and submitted that appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned appellants 2 to 5 also. The appellants approached the High Court under Section 482 CrPC against the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal. 4

 5. Main contention raised in support of this appeal is that there is need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.

 6. Learned counsel for respondent No.2 supported the impugned order and the averments in the complaint.

 7. Learned ASG submitted that Section 498A was enacted to check unconscionable demands by greedy husbands and their 5 families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows: “
 That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law.
 While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.
 10. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However 6 most surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.
 11. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”

 8. Referring to Sushil Kumar Sharma versus Union of India1 , Preeti Gupta versus State of Jharkhand2 , Ramgopal versus State of Madhya Pradesh3 , Savitri Devi versus Ramesh Chand4 , it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines: “It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 1 (2005) 6 SCC 281 2 (2010) 7 SCC 667 3 (2010) 13 SCC 540 4 ILR (2003) I Delhi 484 7 Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.”

 9. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail Application No.1627/2008 directed issuance of following guidelines : “2. Police Authorities: (a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously. (i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP. (ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP. 5 (2008) 151 DLT 691 8 (iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file. (b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance. (c) FIR in such cases should not be registered in a routine manner. (d) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR. (e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust. (f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”

 10. In Arnesh Kumar versus State of Bihar6 , this Court directed as follows : “11.1All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC; 11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 6 (2014) 8 SCC 273 9 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” 

 11. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari versus Government of Uttar Pradesh7 . Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.
 12. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498A should be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if 7 (2014) 2 SCC 1 11 the IO is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498A.

13. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.

 14. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. 12 The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted9 . The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti Gupta (supra) 13 provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable.
 15. Following areas appear to require remedial steps :- i) Uncalled for implication of husband and his relatives and arrest. ii) Continuation of proceedings in spite of settlement between the parties since the offence is non-compoundable and uncalled for hardship to parties on that account.

 16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a 10 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir Batham (2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 SCC 453- para-21 14 non-compoundable case of private nature, if continuing the proceedings is found to be oppressive.12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.

17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
 18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC 364- para -14 15 trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.

 19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
 (b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
 (c) The Committee members will not be called as witnesses.
 (d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
 (e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.
 (f) The committee may give its brief report about the factual aspects and its opinion in the matter.
 (g) Till report of the committee is received, no arrest should normally be effected.
 (h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
 (j) The Members of the committee may be given such honorarium as may be considered viable.
 (k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
 ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The 18 training may be completed within four months from today;
 iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
 iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
 v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
 vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
 vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
 viii) These directions will not apply to the offences involving tangible physical injuries or death.
 20. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services 20 Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018. 21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action. 22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions

. …………………………………….J. (Adarsh Kumar Goel)
…………………………………….J. (Uday Umesh Lalit)
New Delhi;

Tuesday, 16 May 2017

Enquiry under Section 202 of Cr.P.C mandatory even after Magistrate has taken cognizance.

Section 202 in The Code Of Criminal Procedure, 1973


202. Postponement of issue of process.


(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
Punjab-Haryana High Court
S.K. Bhowmik vs S.K. Arora And Anr. on 19 September, 2007
Author: R Singh
Bench: R Singh
JUDGMENT Ranjit Singh, J.

1. Invoking the amended provisions of Section 202 Cr.P.C., this petition for quashing the complaint and summoning order is filed by the petitioner with the submission that it is obligatory upon the Magistrate to enquire into the case before summoning an accused residing beyond his jurisdiction. Noticing the contentions raised on behalf of the petitioner that no enquiry, as envisaged under Section 202 Cr.P.C., was held before summoning the petitioner, notice of motion in this case was issued.

2. During the course of hearing, submissions are made by the counsel representing the parties. There does not appear to be much differences on the basic issue arising for consideration due to this amendment incorporated in Section 202 Cr.P.C. Mostly concerned with the debate on the legal issue so raised, the counsel did not make any submission before the court if the impugned order is revisable or the fact that the enquiry in this case was held by the Magistrate before summoning the petitioner or not. There was otherwise a consensus between the counsel appearing for the petitioner and contesting respondent that enquiry would now be mandatory in a case where an accused person is found to be residing beyond the jurisdiction of a Magistrate dealing with the case. There was some debate about the nature of this enquiry. There may not have been any requirement to go into the scope of the amendment introduced and the effect thereof in view of the consensus between the counsel, yet it may be appropriate to go into this aspect as the issue was indeed debated before the court.

3. To appreciate the submissions made, it would be essential to have a peep into the history of this provision. Section 202 Cr.P.C. makes a provision for postponement of an issue on process and has undergone modifications from time to time. Before its amendment, which came into force on 23.6.2006, Section 202 Cr.P.C. was a substantial reproduction of old Section 202 with certain modifications. Under the old Section, the Magistrate was required to record reasons in writing if he wanted to postpone the issue of process, which requirement, was done away with on the basis of recommendation made by the Law Commission. While recommending the deletion of this requirement, the Law Commission felt that no real purpose would be served by any expression of judicial opinion at that stage. Accordingly, words "for reason to be recorded in writing" occurring in Sub-section (1) of Section 202 were deleted. Originally, this section permitted a Magistrate to direct an enquiry or investigation by any Magistrate subordinate to him when he received any complaint. This again was deleted on the recommendation of the Law Commission, which observed that case was ultimately to be decided by the Magistrate himself and if the evidence is to be finally weighed by a particular Magistrate, it is proper that it should be heard by the same Magistrate. The division of responsibility, which was implied in this section, was considered wholly undesirable. Another change, which had come in this section, is the replacement of words "a scrutiny, a truth or falsehood of the complaint" as existing in the old sub-section with the words "deciding whether or not there is sufficient ground for proceeding". It was felt that the former words, noted here-in-before, did not represent the real purpose of preliminary enquiry. Truth or falsehood of a complaint is not open to be decided at the stage of summoning an accused. It was also felt that real purpose of enquiry is to ascertain whether the grounds exist for proceeding or not. Even Clause (a) in the proviso to Sub-section (1) was also a newly added provision. Sub-section (1) of Section 202 Cr.P.C. before recent amendment reads as under:

202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

4. The recent amendment in the year 2006 now makes the sub-section read as under:

202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

5. The words introduced by amendment as highlighted are:

and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction.

6. It would be noticeable that this amendment has not brought in any change so far as the nature of enquiry, required to be held under the section is concerned. It can further be noticed that holding of enquiry seems to have been made obligatory in a case where accused person is residing at a place beyond the area in which the Magistrate exercises jurisdiction thus seems to be the only change introduced by way of this amendment. It may be noticeable that prior to this amendment, holding of enquiry before issuing a process, was in the discretion of a Magistrate, which would continue to be so unless an accused person is the one who resides beyond the territorial jurisdiction exercised by the Magistrate. In Boya Lakshmanna v. Boyachinna Narasappa and Anr. 1976 Cri.L.J.127, it was held that it is optional for the Magistrate to hold enquiry and he can issue process direct as well. Ofcourse a Magistrate is not required to issue process against an accused as a matter of course and can hold an enquiry, if after perusing the statement of the complainant and the witnesses, he is not satisfied that a case for summoning is made out and wishes to further enquire into the matter. He would then follow the procedure indicated in Section 202(2) Cr.P.C. The statement of the complainant and the witness, referred to above, would have come before him under Section 200 Cr.P.C. This option of issuing process direct, which was available or is available with the Magistrate in other cases, would no more be available in cases where this amendment would be applicable. The purpose behind this amendment can well be noticed from the draft accompanying the amendment. This is as follows:

Clause 19.-False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend Sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.

7. The words "if he thinks fit" occurring before postpone the issue of process give clear indication about the option before a Magistrate to issue process or postpone the issue of the same in his discretion without holding an enquiry. This discretion now would not be available with the Magistrate in cases where amendment is made applicable. In short, the Magistrate would now be under obligation to enquire into a case either himself or direct investigation to find out whether or not there was sufficient ground for proceeding against an accused where he resides at a place beyond his area of jurisdiction. This is the only change introduced in the provision. The nature of enquiry envisaged under this section ofcourse has not undergone any change. It has been held that the nature of enquiry would vary with the circumstances of each case and the enquiry as contemplated certainly is such which should not be exhaustive. In Kewal Krishan v. Suraj Bhan and Anr. , the Hon'ble Supreme Court observed:

All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the stage of framing charges. Even at the state of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.

8. It was further observed that to ascertain whether or not the evidence so collected would disclose sufficient grounds for proceeding is lower than the one to be adopted at the stage of framing charges. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. , it is observed as under:

The scope of the inquiry under Section 202 is extremely limited-only to the ascertainment of the truth or falsehood of the allegations made in the complaint-(i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.

9. It can, thus, be said that degree of formality of the proceedings and the width and depth of the enquiry are entirely in the discretion of the Magistrate. It was also held that this provision is enabling and not obligatory. Though it was observed that it is not necessary that a Magistrate should hold an enquiry under this section in every case and it is only when he "thinks fit" that he may do so, but it was viewed that it would be advisable that an enquiry be held where the complainant is not speaking from his own knowledge. Even before amendment, there were some cases where such enquiry was held obligatory. Under Section 10 of the Child Marriage Restraint Act of 1929, such enquiry is obligatory and the failure to do was held to vitiate the whole trial. In this regard, reference may be made to State of Gujarat v. Patel Jivraj Khimji and Ors. 1966 Gujarat Law Reporter 935. This may be sufficient to appreciate the parameters in regard to the requirement of an enquiry now made obligatory in cases where an accused resides beyond the jurisdiction of a Magistrate. It would, thus, be proper to hold that in a case of person residing beyond jurisdiction of a Magistrate, if the process is issued without holding enquiry, it may vitiate the whole trial.

10. Since this effect of the amendment was not seriously disputed by the counsel appearing for the contesting respondent, I do not consider the need to go into the significance of word "may" or "shall" as argued by Mr. R.S. Cheema, learned Senior counsel appearing for the petitioner. To be fair to him, he has urged that the use of word "may" and "shall" in the same provision would cover two different situations and this provision is discretionary in one situation and mandatory in another. This would not appear to be in much dispute. Mr. Cheema appears to be justified in submitting that use of expression "may" conferring discretion upon the Magistrate with respect to one facts situation and that of "shall" in connection with another situation would give an indication of the fact that legislature had intended to make this provision mandatory in nature. The notice on the clause of amendment, as referred to above, and the use of word "shall" in the amended provision, in my view, does not leave much scope of debate in regard to the nature of this amendment introduced, making it to be obligatory. In regard to the implication of word "shall", Mr. Cheema has referred to Rubber House v. Excellsior Needle Industries Pvt. Ltd. . As per this, the word "shall" in its ordinary import is said to be obligatory. In Raza Buland Sugar Co. Ltd. Rampur v. Municipal Board, Rampur , the Hon'ble Supreme Court held that whether use of word is mandatory or merely directory cannot be resolved by laying down any general rule and would depend upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. In State of U.P. v. Babu Ram Upadhya , it is held that when a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.

11. Viewed in this background, it would be safe to say that the manner in which this amendment has been introduced and the wording thereof, when read in the light of objects behind the same, would make it clear that the legislature intended this provision to be made as obligatory/mandatory in nature. Thus, it would be proper to say that holding of an enquiry and the other options available to the Magistrate in this regard under Section 202 Cr.P.C. would be obligatory where it is found that person is residing beyond his jurisdiction. In this case, the present petitioner is not residing within the jurisdiction exercised by Judicial Magistrate Ist Class, Faridabad. Thus, it was obligatory for the Magistrate to hold enquiry envisaged under Section 202 Cr.P.C. before issuing process.

12. To ascertain if any enquiry was held or not, a mention to the facts, in brief, would be essential. Petitioner is a Managing Director of M/s Haldia Petrochemicals Limited with the address as 1Auckland Place, Kolkata. Respondent No. 1 has filed a complaint dated 11.5.2004 (Annexure P-1), against him before Judicial Magistrate Ist Class, Faridabad under Sections 323/452/504/506 IPC, which has led to his summoning vide order dated 14.10.2006 (Annexure P-2). The petitioner is a Managing Director of M/s Haldia Petrochemicals Limited ("HPL" for short) and is working with this concern since 10.8.2001. He was appointed as Chief Executive on 30.4.2002 and has been inducted in the Board of Directors w.e.f. 29.3.2005. HPL has appointed various agents across the country to sell its products. Such agents are to ensure payment to the HPL against the sale of the products to the customers. One IPF Vikram India Ltd. Panchkula, Haryana was appointed as an agent during the year 2000. During the year 2001-2002, IPF supplied certain products of HPL to another company named Himachal Filament Pvt. Ltd. Sirmour (Himachal Pradesh) ("HFPL" for short). HFPL had issued a cheque amounting to Rs. 37,08,115/-through its agent to HPL. This cheque was dishonoured. HPL issued power of attorney in favour of IPF to recover this price of goods supplied by HPFL as an agent of HPL to HFPL. An application was also given by IPF to the Inspector General of Police, Chandigarh for recovery of dues from HFPL. On 5.8.2002, HFPL was made to pay a sum of Rs. 31.83 lacs before Lok Adalat, U.T. Chandigarh and had agreed to pay a sum of Rs. two lacs on monthly basis. HFPL did not honour this order passed by Lok Adalat leading to registration of an FIR on 15.11.2002 against respondent No. 1. He was accordingly arrested. Respondent No. 1 filed a civil suit for defamation at Faridabad against the petitioner and one Shri Siddharth Anand of IPF. This suit is stated to have been dismissed in default on 6.2.2006 and application for its restoration is pending. It is disclosed that by suppressing these material facts, respondent No. 1 filed the present complaint in the court of Judicial Magistrate, Faridabad on 11.5.2004 alleging that the petitioner alongwith two unknown persons had come to his office for discussion in connection with the suit and had abused him, caught him from the collar and gave fist blows. Respondent No. 1 appeared as CW-1 in support of the complaint and further produced one Akash Wadhawan as CW-2. On the basis of this evidence, the Magistrate has summoned the petitioner vide its order dated 14.10.2006, which is under challenge in the present petition.

13. The primary submission made by the counsel for the petitioner is that petitioner is a resident of Kolkata and is, thus, residing beyond the area in which Judicial Magistrate at Faridabad exercises jurisdiction and hence could have been summoned only by holding an enquiry into the case as envisaged under Section 202 Cr.P.C. As already noticed above, the holding of enquiry by a Magistrate or in other manners of holding enquiry/investigation as he thinks fit, would be obligatory and mandatory in the present case since the petitioner is residing in an area beyond the jurisdiction of the Magistrate concerned. That being so, it is required to be seen if the process is issued to the petitioner by holding an enquiry as required under Section 202 Cr.P.C. or not.

14. While making submission, Mr. Cheema points out that the complaint in this case was made on 11.5.2004. The evidence of two witnesses, one of which is complainant, was recorded on 27.10.2004 and the order summoning the petitioner is dated 14.10.2006. From this, learned Counsel would contend that Magistrate obviously was not conscious about the amendment made in Section 202 Cr.P.C. As already noted, this amendment has come into force on 23.6.2006, much after filing of the complaint and recording of evidence, but before issuing of the process. It is urged that process in this case has been issued by the Magistrate without taking into consideration the amendment in Section 202 Cr.P.C. It is urged that if the Magistrate was conscious of this amendment at the time of issuing process, he would have done so after holding enquiry which is now obligatory. It is stated that the Magistrate has issued process in this case without holding enquiry envisaged under Section 202 Cr.P.C. It is reasonable to say that Magistrate has not taken note of this amendment if he had issued process without holding an enquiry. If one was to find that this process is issued after holding enquiry, then perhaps it cannot be urged that the process is issued without taking into consideration the amendment introduced in the section. As already noted, the process in this case is issued after recording the evidence of two witnesses. This according to Mr. Cheema is in terms of Section 200 Cr.P.C. This Section (200 Cr.P.C.) provides for examination of the complainants and the witnesses present, if any, by a Magistrate while taking cognizance. Section 202 Cr.P.C. is contained in Chapter XV, which deals with the provisions relating to the steps which a Magistrate has to take while and after taking cognizance of any offence on a complaint. Once the Magistrate takes cognizance of offence, then he has to follow the procedure prescribed under Section 202(1) Cr.P.C. Examination of the complainant and witnesses, if any, under Section 200 Cr.P.C. is done while or for taking cognizance. The Magistrate can then either hold enquiry or direct investigation to be made either by police officer or any other person. This is to help the Magistrate to decide if there is sufficient ground for him to proceed further. This seems to be emerging from the wording of Section 202 Cr.P.C. Thus, after taking cognizance, the stage of issuing a process would come, which under Section 202 Cr.P.C. can be postponed by the Magistrate if he thinks fit to hold an enquiry or direct an investigation to see if there are sufficient grounds for proceeding or not. This enquiry or investigation now is made obligatory/mandatory in a case where accused is residing at a place beyond the area in which he exercises jurisdiction. In other words, it would mean that such enquiry/investigation is mandatory even when he has taken cognizance after examining the complainant or his witnesses under Section 200 Cr.P.C. The examination of the complainant and witnesses as envisaged under Section 200 Cr.P.C. can not be equated or be a substitute for the enquiry/investigation required under Section 202 Cr.P.C. Prior to amendment, it was in the discretion of the Magistrate to hold enquiry or have the case investigated under Section 202 Cr.P.C., which now is made mandatory in the case of person residing at a place beyond the area of his jurisdiction. The nature of this enquiry or investigation continues to be the same as was prior to coming into force of the amendment in question.

15. The order summoning the petitioner is annexed on record. Process is issued without holding enquiry or getting the complaint investigated in any manner. Reference has already been made in regard to the nature of enquiry, required to be held under this section to see if prima facie case is made out or not. In Nagawwa's case (supra), the Hon'ble Supreme Court has observed that the enquiry envisaged under this section is extremely limited. This is for the limited purpose to find out whether a prima-facie case for issue of process is made out. As already noticed in this case, this is required to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Similarly in Kewal Krishan's case (supra), the Hon'ble Supreme Court observed that the Magistrate at this stage is not to weigh the evidence meticulously as if he was a trial court. Rather in this case the Hon'ble Supreme Court has observed the limits of Magistrate's discretion and infirmity, if he meticulously appreciates the evidence. The Hon'ble Supreme Court declined to interfere by saying that such would only be an irregularity and not illegality leading to any miscarriage of justice. Thus, where the Magistrate was to meticulously appreciate the evidence, it may lead to lapse on his part in overstepping the discretion available to him under this section. In other words, it can be stated that the Magistrate at the time of issuing process is not to weigh the evidence as already noted, width and depth of this enquiry are entirely in the discretion of the Magistrate, though such an enquiry may vary with the circumstances of each case, but it is not required to be exhaustive (see Kewal Krishan's case, supra).

16. Process is issued in this case only on the basis of examination of the complainant and CW-2. This is obviously under Section 200 Cr.P.C. It was done much prior to the date of amendment of Section 202 Cr.P.C. It is seen that no enquiry/investigation is held as is required under Section 202 Cr.P.C. The quashing of the summoning order is sought mainly on the ground that the Magistrate has not held enquiry, which is obligatory. If the Magistrate had considered the amended Section 202 Cr.P.C., he was bound to hold enquiry/investigation thereunder before issuing process, though this Court would not have any power to interfere or to substitute its own discretion over that of a Magistrate. Where Magistrate is seen to have exercised his discretion judicially, the same may not call for any interference. The defence of the accused is not the factor, which is required to be taken into consideration to call for any interference in the order. Even the irregularity in the procedure under this section, which does not result in miscarriage of justice, may not call for any interference by a court. Whether a prima- facie case is made out from the evidence recorded or not, would be a matter within the discretion of the Magistrate. In fact some inadequacy of the enquiry will also not call for any interference. But enquiry or investigation in case where the accused resides beyond his jurisdiction cannot now be wished away being mandatory. In this case, no enquiry or investigation have been held and process, as such, is issued in violation of the mandatory requirement of Section 202 Cr.P.C. and cannot be sustained. Thus, impugned order is accordingly set aside and case is sent back to the Magistrate to examine fresh by adhering to the requirement of Section 202 Cr.P.C.

17. The argument of Mr. Cheema based on the ground that it would sound improbable for a person to come and visit the office of the petitioner to behave in a manner as alleged, need not be gone into as the case is going back to the Magistrate to hold enquiry/investigation etc. The complaint otherwise can not be quashed on the ground that summoning was done without holding enquiry or investigation as envisaged under Section 202 Cr.P.C. It may not otherwise be open to judge the correctness or otherwise of the allegations made in the complaint in a petition under Section 482 Cr.P.C. Defence plea can also not be considered while exercising revisional jurisdiction or inherent powers. See S. Nihal Singh and Ors. v. Arjan Das, New Delhi 1983 Cri.L.J.777.


18. As a result, the present petition is partly accepted. The impugned order summoning the petitioner is set-aside. The case would go back to the Magistrate for deciding the case for issuing process afresh by following the mandatory provisions of law under Section 202 Cr.P.C.

Thursday, 16 February 2017

Quashing Petition under sec.482 of Cr.P.C in Proclaimed Offender Cases under sec.82/83 of Cr.P.C

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 the 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. Sections 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 Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 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.

So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.
Delhi High Court
Rohit Kumar @ Raju S/O Late Sh. Om … vs State Of Nct Delhi
Bench: V Gupta
JUDGMENT V.B. Gupta, J.
Petitioner herein had earlier filed Crl.M.C.No.2952/2007 under Section 482 Cr.P.C. seeking quashing of order dated 31st May, 2007 and 25th July, 2007 passed by Sh. Rakesh Tewari, Addl.Sessions Judge in Criminal Complaint case, whereby he had issued non-bailable warrants and process under Section 82 and 83 Cr.P.C. against the petitioner.
In that petition, it was also prayed that Addl.Sessions Judge be directed to bail out the petitioner in accordance with law and petitioner undertook that he will appear before the court of Addl.Sessions Judge, if directed and co-operate with the prosecution of the case on the next date of hearing, that is, 19th September, 2007.
On that petition, this Court on 17th September, 2007passed the following order:
Keeping in view the facts and circumstances of the case, the execution of process under Section 82/83 Cr.P.C. issued against the petitioner is stayed till 19th September, 2007 provided the petitioner deposit a sum of Rs. 2,500/- as adjournment costs with the trial court by that date and appear before the trial court on that day.

On 19th September, 2007 as directed by this Court, the petitioner appeared before the trial court who passed the following order, relevant portion of which reads as under:
Accused has appeared along with the counsel and has moved the bail application and annexed the copy of the order of the Hon’ble High Court of Delhi dated 17.09.07 in which he sought the stay of the order dated 31.05.07 and 25.07.07 whereby the process under Section. 82/83 Cr.P.C. was issued against the accused. The time requisite for process under Section. 82 Cr.P.C. had already expired on 29.08.07 when the process server returned the execution reports of the said process. Today the case was fixed for recording of the statement of the process server so that the accused could have been declared as a Proclaimed Offender and the case should have been fixed for recording the evidence under Section. 299 Cr.P.C. Although on 17.09.07 there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order and directed the accused to deposit the amount as cost as mentioned in the order which he has deposited with this Court.

Thereafter, trial court heard arguments on bail application and rejected the bail application of the petitioner and took him into custody.
Now, the present bail application has been filed on behalf of the petitioner and notice of the same was issued to State, as well as to respondent No. 2 and the trial court record was also summoned.
It has been contended by learned Counsel for the petitioner that, in terms of the order dated 17th September, 2007, petitioner appeared before the trial court and deposited the costs of Rs. 2,500/-, but the trial court rejected the bail application, making certain observations as mentioned above. The trial court had no business to make such comments and it deliberately disregarded the order, dated 17th September, 2007 and rejected the bail application of the petitioner.
With regard to the above observation made by the trial court, prima facie, it appears that the trial court was not at ease with the order dated 17th September, 2007 passed by this Court and the observation made by the trial court are uncalled for, as it cast aspertions on the functioning of this Court and the same have also been deprecated by the learned Counsel for the respondents.
Brief facts of the case are that respondent No. 2, BSES Rajdhani Power Ltd. had filed a complaint under Section 151 read with Section 154 of the Electricity Act, 2003 against one Raju (user), the present petitioner on 13th April, 2007. After registration of the case, the Addl.Sessions Judge listed the matter on 7th May, 2007 for pre-summoning evidence. On that date, pre-summoning evidence was filed by way of affidavits and the same was closed and the trial court passed the following order:
From the perusal of the record and the statements of the said witnesses, I am satisfied that a prima facie case is made out against the accused under Section 135 of the Electricity Act, 2003. Let the accused be summoned for the said offence on filing of PF and RC and process be given dusty and accused be served through prescribed courier service also for 31.5.07.

Sd/-

Rakesh Tewari ASJ, Delhi/07.05.2007

On 31st May, 2007, the trial court passed the following order:
Present: Deemed APP for the complainant The tenant at the premises in question informed that accused is residing at Daryaganj, Delhi.

Issue NBW against the accused through SHO, P.S. Sangam Vihar, New Delhi for 25.07.07.

Sd/-

Rakesh Tewari ASJ, Delhi/31.05.2007

According to these proceedings, prima facie, it is apparent that the petitioner was never served with any summon nor he was avoiding to receive the summon. Be that as it may, on 25th July, 2007, the trial court passed the following order:
Present:- Deemed APP for the complainant company The accused being the landlord of the premises in question seldom visits the premises as per report on NBW.

Issue process under Section 82/83 Cr.P.C. against the accused through SHO, PS. Sangam Vihar, New Delhi on the last known address for 29.08.07.

Sd/-

Rakesh Tewari ASJ, Delhi/25.07.2007

On 29th August, 2007, the following order was passed:
Present: Deemed APP for the complainant company Process under Section 82/83 Cr.P.C. received back against the accused. Let the Process Server be summoned for recording of his statement on 19.09.07.

Sd/-

Rakesh Tewari ASJ, Delhi/29.08.2007

In the meanwhile, on 17th September, 2007, this Court has passed the order in Crl.M.C.No.2952/2007 as mentioned above.
This observation made by the trial court that:- ‘Although, on 17th September, 2007, there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order…’ goes on to show that process under Section 82/83 Cr.P.C. was duly executed, but that was not the case in reality.
It appears that the learned Addl.Sessions Judge is not aware with the basics of Code of Criminal Procedure, as it is apparent from record that process under Sections 82/83 Cr.P.C. was never executed in accordance with law. For his knowledge and reference, Sections 82 and 83 of Cr.P.C are reproduced as under:
Section 82. Proclamation for person absconding.-(1) 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 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 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) Where a proclamation published under Sub-section (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, 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.

(5) The provisions of Sub-sections (2) and (3) shall apply to a declaration made by the Court under Sub-section (4) as they apply to the proclamation published under Sub-section (1).

Section 83. 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 or any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the 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 the proclamation.

(2) Such order shall authorise the attachment of any 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 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).

The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:
(i) issuing of a proclamation (Section 82)

(ii) attachment or sale of property (Section 83)

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.
The expression ‘reason to believe’ occurring in Section 82 Cr.P.C. suggests that the Court must be 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.’
The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory.
Here the question to be seen is as to whether proclamation under Section 82 Cr.P.C. has been effected in accordance with law or not.
As per proclamation under Section 82 Cr.P.C. placed on record, the same was issued on 27th July, 2007 directing the petitioner to appear before the court on 29th August, 2007. As per service report on the back of this proclamation, a copy of this proclamation was pasted on the house and another was pasted on the main door of the court, on 6th August, 2007.
So, admittedly, as the proclamation has been effected on 6th August, 2007 and petitioner was given time to appear in the court on 29th August, 2007, the petitioner was granted less than thirty days from the date of publishing of the proclamation, to appear in the court. As per Section 82(1) Cr.P.C. the court was required to give time ‘not less than thirty days from the date of publishing such proclamation’.
The proclamation issued under Section 82 Cr.P.C. requires appearance of the person, against whom warrant has been issued, at a specified time, at a specified place. The date fixed should be not less than thirty days from the date of publication of the proclamation. If that be so, simultaneous attachment of property cannot be effected.
Since the proclamation under Section 82 Cr.P.C. had been effected only on 6th August, 2007, so the petitioner, could not be asked to appear before the court on 29th August, 2007, as specified time of not less than thirty days was not given to him.
Now, coming to proclamation issued under Section 83 Cr.P.C, it was issued on 27th July, 2007 directing the petitioner to appear in the court on 29th August, 2007. As per service report on the back of this proclamation interestingly, it was effected only on 29th August, 2007, that is, the day on which the petitioner was supposed to appear in the court.
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 the 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. Sections 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 Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 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.
So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.
When on 29th August, 2007, no valid proclamation under Section 82 and 83 Cr.P.C. has been effected, then where was the question for the trial court for recording the statement of the process server so, that the petitioner could have been declared as a proclaimed offender and case should have been fixed for recording the evidence under Section 299 Cr.P.C. It appears that the trial court was in undue haste and was bent upon to declare the petitioner as proclaimed offender, without following the due process of law.
So, the above mentioned orders passed by Sh. R.K.Tewari, Additional Session Judge goes on to show that he lacks even elementary knowledge about the Code of Criminal Procedure and also does not know as to in which cases and in what manner, proclamation under Section 82/83 Cr.P.C. are to be issued. In spite of the fact that Sh. R.K.Tewari has no basic knowledge of the criminal law, he has chosen to comment on the order passed by this Court, which amounts to judicial indiscipline.
It also appears that, this judicial officer is not aware of the fact or does not have even that knowledge, that the sub-ordinate courts are, by way of constitutional provisions, bound by the decision of local High Courts as is every court in the country including the High Courts, are bound by the decision of the Supreme Court by virtue of provisions of Article 141 of the Constitution of India and on this point, judgment of this Court on its own motion v. Central Bureau of Investigation 2004 (72) DRJ 629 may be relevant and para 28 of it is reproduced as under:
There is no gain saying the fact that the disobedience or disregard of the law laid down by the High Court by the subordinate courts is not only against the very concept of rule of law but also verges on the contempt of court as subordinate courts are, by way of constitutional provision, bound by the decision of the local High Court as is every court of the country including the High Courts, bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the Constitution. If the subordinate courts start ignoring the law laid down by their High Courts and start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure of the country, rule of law and concept of liberty of citizens will be the first casualty.
The observations made by the trial court in its order dated 19th September, 2007 are per se disobedience of the order passed by this Court and verges on the contempt of court. Since Sh. R.K. Tewari, Additional Session Judge does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances, it would be appropriate, if Sh.Rakesh Tewari, Addl.Sessions Judge, undergoes refresher course at Delhi Judicial Academy in criminal law and procedure, at the earliest and the District and Sessions Judge would see to it that name of this officer is recommended in the first available such course and this officer should undergo training in Dehli Judicial Academy, under the supervision of the Director, Delhi Judicial Academy at least for a period of three months and, Director, Delhi Judicial Academy, should submit to this Court, performance report, with regard to this judicial officer.
Registrar General of this Court is directed to send the copy of this Judgment to all the Judicial Officers of Delhi for guidance and one copy be sent to the Inspecting Judge as well as one copy of Judgment be placed in the personal file of this Judicial Officer.

Trial Court record be sent back forthwith. Ordered accordingly.