Hema Chaturvedi vs State And Anr.
2003 Latest Caselaw 952 Del

JUDGMENT

J.D. Kapoor, J.

1. The impugned order dated 2.8.2003 passed by Sh. Dilbagh Singh, learned Addl. Sessions Judge is on the face of it most unusual and suffers from inherent infirmity. Petitioner is the wife of co-accused who is accused No. 2. Her husband has deserted her and is not residing with her for the last more than two years. Non-bailable warrants were issued against the petitioner for 2nd August, 2003. On 2.8.2003, the petitioner appeared in person Along with her surety. On that day itself, the learned ASJ sought an undertaking from the petitioner to furnish the address of her husband failing which non-bailable warrants issued against her would come into operation. So much so even the surety of the petitioner was also asked to give an undertaking to furnish the address of accused No. 2 and on account of his failure to do so, his bonds would be forfeited and penalty would be imposed.

2. It is imperceptible as to what prompted the learned ASJ to adopt the procedure which is unknown in the criminal jurisprudence. Every accused has his own independent entity. For the non-appearance of the husband, wife cannot be put to condition and jeopardy of being sent to jail. Once having exercised the option of condoning the execution of non-bailable warrants by not sending the petitioner to judicial custody, the court could riot have kept the warrants in abeyance subject to the undertaking that she would furnish the address of her husband who has deserted her and not living with her for the last two years. Similarly the surety has no liability to furnish the address of accused for whom he had not given any surety. Element of whimsicality or capriciousness cannot be allowed to creep in the criminal proceedings.

3. If at all the learned ASJ was so incensed by the non-appearance of the husband of the petitioner requisite proceedings under Sections 82/83 Cr.P.C. could have been resorted to. Instead of proceeding in accordance with the provisions of law, the learned ASJ has adopted a new methodology to secure the presence of an absconded accused with which neither the petitioner nor the surety has anything to do.

4. Once the petitioner appeared before the court Along with her surety, the only course open to the learned ASJ was to consider the cancellation of non-bailable warrants issued against her and the notice to the surety as to why penalty be not imposed after passing the order of forfeiture of surety bonds.

5. In view of the foregoing reasons, I have no other option than to allow the petition and set aside the impugned order. Learned ASJ shall proceed against accused No. 2 in accordance with the provisions of law whereby the accused can be declared proclaimed offender if he is found to be absconding or concealing and non-bailable warrants cannot be executed against him.

6. Petitioner is given liberty to challenge the order of learned ASJ whereby his application for recalling the summoning order was rejected by making an appropriate petition.

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