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2021 SCC OnLine Del 5335
In the High Court of Delhi at New Delhi
(BEFORE MANOJ KUMAR OHRI, J.)
In the Matter of:
Mohd. Haris Usmani … Petitioner;
Versus
State (N.C.T. of Delhi) … Respondent.
Crl.M.C. 1871/2021, CRL.M.A. 12846/2021 and CRL.M.A.
12847/2021§
Decided on December 8, 2021, [Reserved on : 28.10.2021]
Advocates who appeared in this case:
Mr. Vikas Pahwa, Senior Advocate alongwith Ms. Raavi Sharma, Mr.
Nitin Singh, Mr. Parvez Dabas & Mr. Murari Tiwari, Advocates.
Mr. Hirein Sharma, APP for State with SI Mukesh Kumar, P.S. Kalkaji
Ms. Aishwarya Rao & Ms. Mansi Rao, Advocates for Complainant.
The Judgment of the Court was delivered by
MANOJ KUMAR OHRI, J.:— By way of the present petition filed under
Section 482 Cr.P.C., the petitioner seeks quashing of the order dated
08.07.2020 passed by the learned Duty M.M. (South-East District),
Saket Courts, New Delhi as well as the orders dated 03.08.2021 and
06.08.2021 passed by the learned Metropolitan Magistrate-06 (South-
East District), Saket Courts, New Delhi in case arising out of FIR No.
601/2019 registered under Sections 376/506/406/323/313/34 IPC at
Police Station Kalkaji, New Delhi, whereby the petitioner has been
declared an Absconder.
2. Brief facts, necessary for deciding the present petition, are that
the aforesaid FIR came to be registered on 04.12.2019. During the
pendency of investigation, the Investigating Officer of the case
obtained NBWs against the petitioner on 09.01.2020. Thereafter, the
Investigating Officer also moved an application dated 06.02.2020
before the concerned Court seeking initiation of proceedings under
Section 82 Cr.P.C. against the petitioner. In the application, it was
stated that search was made for the petitioner, however, he was not
found available at any address. It was also mentioned that an
application filed on behalf of the petitioner seeking anticipatory bail
came to be dismissed vide order dated 25.01.2020 passed by the
learned Addl. Sessions Judge. On the aforesaid application, vide order
dated 10.02.2020, process under Section 82 Cr.P.C. was directed to be
issued against the petitioner for 24.03.2020. On 08.07.2020, the
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learned Duty Metropolitan Magistrate recorded the statement of the
process server and on the same date, i.e., 08.07.2020, the petitioner
was declared an Absconder. Later, an application filed on behalf of the
petitioner seeking recall/setting aside of the order dated 08.07.2020
was also dismissed on 03.08.2021. Vide order dated 06.08.2021, a
typographical error in the order dated 03.08.2021 was corrected.
3. Mr. Vikas Pahwa, learned Senior Counsel appearing for the
petitioner, has assailed the proceedings initiated against the petitioner
under Section 82 Cr.P.C. by contending that there was complete non-
application of mind while declaring the petitioner an Absconder. It is
submitted that process under Section 82 Cr.P.C. was issued against the
petitioner on 10.02.2020 for 24.03.2020, however, a nationwide
lockdown came to be imposed on 24.03.2020 on account of the Covid-
19 pandemic and as such, the petitioner, who was required to appear
before the Court on 24.03.2020, could not appear on the said date. It is
also submitted that in between the petitioner had preferred an
application seeking anticipatory bail in which he was directed to join
investigation, however, he could not join the same as he was prescribed
15-day home stay isolation by the concerned Doctor from Community
Health Centre, Ghosi Distt., Mau (U.P.). It is stated that a copy of the
medical slip issued by the said Doctor was also sent on behalf of the
petitioner to the Investigating Officer.
4. It is next contended that the non-application of mind by the
Metropolitan Magistrate is also apparent from the fact that while the
present case pertains to the jurisdiction of Police Station Kalkaji, the
impugned order mentions the name of Police Station as Amar Colony.
5. Learned Senior Counsel further contended that the petitioner
could not have been declared an Absconder; in terms of Section 82(4)
Cr.P.C., he could have been pronounced as a ‘proclaimed person’, but
that too only after making of an inquiry in this regard. It is submitted
that even an inquiry under Section 82(4) Cr.P.C. would require
application of mind. In support of his submissions, learned Senior
Counsel for the petitioner has placed reliance on the decisions in Sunil
Tyagi v. Govt. of NCT of Delhi reported as 2021 SCC OnLine Del 3479
and Sanjay Bhandari v. State (NCT of Delhi) reported as 2018 SCC
OnLine Del 10203.
6. Mr. Hirein Sharma, learned APP for the State, duly assisted by Ms.
Aishwarya Rao, learned counsel on the panel of DHCLSC and
representing the complainant/prosecutrix in this case, has opposed the
present petition. It is submitted that the petitioner has failed to appear
before the Investigating Officer and he deliberately avoided joining of
investigation, for which reason he was rightly declared an Absconder.
7. I have heard learned counsels for the parties and gone through
the material placed on record as well as the records of the concerned
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Court.
8. As the contentions raised by the learned counsels for the parties
involve Section 82 Cr.P.C., it is deemed relevant to reproduce the same
hereunder:—
“82. Proclamation for person absconding.-(1) If any Court has
reason to believe (whether after taking evidence or not) that any
person against whom a warrant has been issued by it has absconded
or is concealing himself so that such warrant cannot be executed,
such Court may publish a written proclamation requiring him to
appear at a specified 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 Sections
302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399,
400, 402, 436, 449, 459 or 460 of the Penal Code, 1860, 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).]”
9. A plain reading of sub-section (1) of Section 82 Cr.P.C. would
show that if a Court has ‘reason to believe’ that a person, despite
issuance of warrant against him, is concealing or absconding himself so
that such warrant remains unexecuted, the Court may publish a written
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proclamation requiring the person to appear at a specified place and
time, which is not less than 30 days from the date of publishing of such
proclamation.
10. The expression ‘reason to believe’ appearing in sub-section (1)
of Section 82 Cr.P.C. means sufficient cause to believe. Section 26 IPC
also explicates that a person is said to have ‘reason to believe’ a thing if
he has sufficient cause to believe that thing but not otherwise. Thus,
‘reason to believe’ that a person against whom warrant is issued is
either absconding or concealing himself should be reflected by the
material placed on record before the Court. The use of expression ‘so
that such warrant cannot be executed’ further implies that the person
must be attributed with the knowledge that such warrant has been
issued against him and his abscondence or concealment is intentional.
11. Before proceeding to analyse the facts of the present case, I
deem it apposite to refer to the decision rendered by a Co-ordinate
Bench of this Court in Dalmia Resorts International Pvt. Ltd. v. Deepak
Gupta reported as 2002 SCC OnLine Del 538 while dealing with a
complaint case under the N.I. Act, wherein it was opined that issuance
of proclamation and attachment orders are exceptional remedies. While
also taking note of the non-application of mind by the concerned
Magistrate to the Report of the process server, the Court had quashed
the proceedings initiated under Sections 82/83 Cr.P.C. against the
accused therein in the following terms:—
“3. …This apart, proclamation for any person absconding can be
issued if the Court has the reasons to believe that the person against
whom a warrant has been issued by it has absconded or is
concealing himself and that warrant of arrest cannot be executed
only then the Court is empowered to publish a written proclamation
requiring him to appear to a specified date and time, within thirty
days from the date of publication of such proclamation. The term
‘absconding’ does not necessarily imply a change of place. The
petitioner being a private limited company, the question of its
absconding does not arise. The process of proclamation and
attachment are exceptional remedies and should not be issued as a
matter of course whenever the warrant is returned unexecuted. The
non-conformance of Section 82(1) and (2) would be violation of the
procedure established by law within the meaning of Article 21 of the
Constitution of India. It appears that while issuing process under
Sections 82/83 Cr. P.C., the Court did not even notice the report on
the warrant. The impugned order issuing proclamation against the
petitioner, on the face of it is not sustainable.”
(emphasis added)
12. It is deemed expedient to refer also to the decision rendered by
another Coordinate Bench of this Court in G. Sagar Suri v. State
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reported as 2003 SCC OnLine Del 759, where the importance of
recording of reasons by the Magistrate before issuing written
proclamation has been noted, besides highlighting that the processes
illustrated in Section 82 Cr.P.C. may first be exhausted before directing
attachment of property of the person absconding:—
“13. It is manifest form the provisions of Section 82 Cr. P.C. that
before publishing the written proclamation requiring the accused to
appear under the provisions of Section 82 Cr. P.C. the court has to
record the reasons either after taking evidence or without evidence
that a person against whom warrants have been issued has
absconded or is concealing himself so that such warrants cannot be
executed. The procedure for publication of the proclamation is laid
down in sub-section (2) of Section 82. Sub-section (1) provides that
the Court shall wait for thirty days after publication of the
proclamation for the appearance of the accused and it is only after
processes under Section 82 Cr. P.C. are exhausted that the next step
under Section 83 is to be taken by the Court.”
(emphasis added)
13. Recently, this Court in Rajesh Ebrahimkutty Majidhabeevi v.
State (Govt. of NCT of Delhi) reported as 2021 SCC OnLine Del 4642
also held that the provisions of Section 82 (1) and (2) Cr.P.C. should be
construed strictly and before issuing process, the concerned Court has
to record its satisfaction that the accused has absconded or is
concealing himself to avoid execution of warrants.
14. Adverting to the present case, it is noted that vide order dated
10.02.2020, the learned Metropolitan Magistrate issued process against
the petitioner under Section 82 Cr.P.C. in a cryptic manner. The order
reads as under:
“Heard.
File perused.
82 Cr.P.C. issued against Accused Haris Usmani for 24/03/2020.”
15. Judicial notice is taken of the fact that on 24.03.2020, a
nationwide lockdown was imposed in the country, for which reason the
physical functioning of Courts was suspended. The same is also evident
from the fact that in pursuance of the process issued under Section 82
Cr.P.C., a Report came to be filed by the concerned Investigating
Officer on 06.07.2020, wherein it was stated that the Report could not
be filed in the Court on 24.03.2020 because of the imposition of
national lockdown. It was also stated in the Report that on the
application filed on behalf of the applicant seeking anticipatory bail, the
learned Addl. Sessions Judge had directed the applicant to join
investigation and on 14.06.2020, the Investigating Officer received a
medical prescription dated 04.06.2020 from the petitioner, in terms
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whereof he was required to remain in home isolation for a period of 15
days.
16. From the above, it is apparent that it was not possible for the
petitioner to appear on 24.03.2020 and his non-appearance on the said
date before the concerned Court was neither deliberate nor willful but
due to reasons which were beyond his control.
17. On a perusal of Section 82(4) Cr.P.C., it is observed that the use
of the expression ‘after making such inquiry as it thinks fit’ implies that
at the time of pronouncing a person as ‘proclaimed person’ or
‘proclaimed offender’, the concerned Court has to satisfy itself that the
steps indicated in Section 82(1) Cr.P.C. are scrupulously followed. The
Court is required to record reasons either after taking evidence or
without evidence that the person against whom warrant was issued has
absconded or concealed himself so that such warrants cannot be
executed.
18. It is worthwhile also to note that the issuance of process under
Section 82 Cr.P.C. and pronouncing a person as ‘proclaimed person’ or
‘proclaimed offender’ entail serious consequences, including not only
deprivation of personal liberty of a person, but also attachment of
properties and initiation of proceedings under Section 174A IPC against
such person. Therefore, any order to that effect must reflect satisfaction
of the Court that the person concerned has absconded or is concealing
himself to avoid the process of law. Even otherwise, reasons form the
heart and soul of any judicial pronouncement. No judicial order is
complete without reasons and it is expected that every Court, which
passes an order, should give reasons for the same [Refer : Sebastiani
Lakra v. National Insurance Company Limited reported as (2019) 17
SCC 465].
19. However, in the present case, an overview of the impugned
orders would show that while passing the same, the learned
Metropolitan Magistrate has not recorded any reasons for his belief that
the petitioner either concealed himself to avoid execution of warrants
and/or absconded.
20. Notably, the petitioner, who is stated to be a practicing
Advocate, has placed on record various order-sheets to support the
averment that he was not concealing himself from the process of law at
the relevant time, and was in fact appearing as a counsel before
different District Courts in Delhi including Saket Courts, subsequent to
issuance of NBWs against him. From the material placed on record, it is
also discernible that the process server's report, to the effect that the
petitioner was not found at his chamber in Saket Courts, was based on
a visit to chamber No. 435 of the Court. However, the petitioner has
disputed the search conducted for him at Saket Courts. It has been
submitted on the petitioner's behalf that his chamber No. is 456, which
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he was duly visiting at the relevant time.
21. For the reasons stated hereinabove and in view of the Report
filed by the Investigating Officer that the petitioner failed to appear on
the date specified in the proclamation i.e., on 24.03.2020, this Court is
of the opinion that the learned Magistrate ought to have issued a fresh
proclamation under Section 82(1) Cr.P.C. requiring the petitioner to
appear before it on a subsequent date,.
22. The impugned order dated 08.07.2020, when tested in the light
of the mandate of Section 82 Cr.P.C. and the decisions mentioned
hereinabove, fails on the touchstone of judicial scrutiny that application
of mind is required before pronouncing a person as ‘proclaimed person’
or ‘proclaimed offender’.
23. Further, in view of the decisions of Coordinate Benches of this
Court in Sanjay Bhandari (Supra), Arun Kumar Parihar v. State (Govt.
NCTD) reported as 2021 SCC OnLine Del 2767 and Manoj Tandon v.
State, CRL.M.C. 1961/2020, the petitioner, who is not accused of any of
the offences punishable under Sections enumerated in Section 82(4)
Cr.P.C., could only have been pronounced as a ‘proclaimed person’ and
not declared as an Absconder.
24. Keeping in view the aforesaid discussion, the petition is allowed
and the impugned order declaring the petitioner an Absconder,
alongwith the orders dated 03.08.2021 and 06.08.2021, is set aside.
Miscellaneous applications are disposed of as infructuous.
25. A copy of this order be communicated to the concerned Court
forthwith.
———
§
2021:DHC:4057
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