Neeraj Gulati vs State
2009 Latest Caselaw 1555 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                  CRL.M.C. 1092/2009 & CRL.M.A.4020/2009

       NEERAJ GULATI                              ..... Petitioner
                                 Through: Mr. D.C.Mathur, Senior Advocate with
                                 Mr.Devinder Chauhan and Mr.Maruf Khan,
                                 Advocates.

                        versus

       STATE                                           ..... Respondent
                                 Through: Mr. Pawan Bahl, APP
                                 Mr.Sanjay Lao, APP.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

                  1.    Whether Reporters of local papers may be
                        allowed to see the judgment?            Yes

                  2.    To be referred to the Reporter or not?        Yes

                  3.    Whether the judgment should be reported Yes
                        in Digest?

                                        ORDER

21.04.2009

1. This is a petition under Section 482 of the Code of Criminal Procedure

1973 (CrPC) seeking the following prayers:-

a) To call for record of the case and after examination of the case quash the proceeding arising out of the FIR No.54/2007.

b) To withdraw/cancel/quash the red corner notice issued against the petitioner in the present FIR.

c) Set-aside the order dated 23.08.2007 passed by Shri Gautam Manan, M.M. New Delhi declaring the petitioner a proclaimed offender"

2. On 19th February 2007, FIR No.54/2007 under Section 376 IPC was

registered at Police Station Naraina against the Petitioner, a citizen of the

United States of America (U.S.A) and holder of a passport of that country, at

the instance of the prosecutrix, aged 18 years and a permanent resident of

Jharkhand. She stated that she was working as a domestic help at the

residence of the Petitioner‟s father in New Delhi having been placed on that

since 14th December 2006 job by her maternal uncle who ran a placement

agency in Delhi. The Petitioner‟s father was the owner of the house. She

also used to live in the upper room of the same premises. She stated that on

6th February 2007 the Petitioner came alone live at his father‟s house leaving

behind his wife and children in the U.S.A. On 15th February 2007 at about 5

pm, the Petitioner asked for a glass of water. At that time he was in his bed

and the Petitioner‟s father had gone out for a walk. When the prosecutrix

gave water to the Petitioner he caught hold of her and when she protested he

shut her mouth with his hand and raped her. She stated that since the owner

of the house had locked the telephone, she could not immediately make a

call. She stated that on 17th February 2007 at about 6 pm, when the married

sister of the Petitioner came to the father‟s residence the prosecutrix informed

her of the incident. The prosecutrix was rebuked by the sister for making a

complaint. Thereafter that the Petitioner and his sister took the prosecutrix in

a car and dropped her at the placement agency. The prosecutrix confided the

facts to her uncle who then brought her to Deen Dayal Upadhyaya Hospital

on 18th February 2007 where she was medically examined. She gave a

statement to the police and on that basis the basis the above FIR was

registered on 19th February 2007 and investigation was taken up.

3. Annexed to this petition is a copy of a Look Out Circular dated 19 th

February 2007 addressed by the Deputy Commissioner of Police(South-West

District) to the Foreigners Regional Registration Officer mentioning that the

Petitioner was wanted in FIR No.54/2007 under Section 376 IPC registered at

Police Station Naraina and that he was evading arrest in the case.

4. On 21st February 2007, the statement of the prosecutrix under Section 164

CrPC was recorded and a warrant of arrest of the Petitioner was issued by the

learned Metropolitan Magistrate (MM). The Petitioner has annexed the

complete transcript of the proceedings under Section 164 CrPC wherein the

prosecutrix has reiterated before the learned MM that the Petitioner raped her

in the manner indicated in the FIR. On the same date the learned MM issued

a non-bailable warrant against the petitioner for 20th March 2007. The

application of the police, on which the said order was issued by the learned

MM was issued, has been annexed to this petition. It shows the address of the

petitioner at Georgia in the U.S.A. Annexed to this petition is a copy of the

red corner notice issued on 29th May 2007 for circulation in the media

(including the internet) with the photograph of the petitioner under the

caption „Fugitive wanted for Prosecution‟. A further proclamation under

Section 82 CrPC was issued on 30th June 2007 by the learned MM against the

petitioner which was pasted on his residence of his father as per the report of

the process server dated 18th July 2007. Consequently on 23rd August 2007

the learned MM passed an order declaring the petitioner as a proclaimed

offender (P.O).

5. The petition states that on 17th October 2007 a lawyer purporting to be of

the prosecutrix wrote to the In-charge P.S.Naraina that the prosecutrix had

got the FIR registered "under duress and threat from one Vinod who wanted

to settle his personal score against the father of the accused Neeraj Gulati." It

was claimed in this letter that the prosecutrix "has sworn this fact on an

affidavit too." Accordingly ti was requested that the In-charge should have

the statement recorded before the learned MM under Section 164 CrPC. It

appears that on 19th November 2007 the lawyer for the prosecutrix filed an

application before the learned MM seeking the re-recording of her statement

under Section 164 CrPC, enclosing an affidavit dated 9th August 2007 of the

prosecutrix to the above effect. A copy of the said application and the

affidavit dated 9th August has also been enclosed with the present petition.

6. The petition proceeds to state that a charge sheet filed by the police on 3 rd

March 2008 disclosing the offences under Sections 376/342/341/34 IPC and

cognizance of the offences was taken by the learned MM. The thrust of the

grounds urged in the petition is that there was no justification for declaring

the petitioner to be a P.O. since no proclamation notice was issued at his

address at the U.S.A which was known to the police. It is claimed that in

view of the affidavit dated 9th August 2007 of the prosecutrix the petitioner

"is totally innocent and he was falsely implicated in the said case" and

therefore "no fruitful purpose would be served in continuing the

proceedings."

7. According to Mr.D.C.Mathur, leanrd Senior Advocate appearing for the

Petitioner it was inconceivable how on 19th February 2007 there could be a

Look Out Circular for the Petitioner when one day prior thereto he had left

the country. He refers to the endorsement on the Petitioner‟s passport which

shows that he left the country on 18th February 2007 itself. He further

submits that it is inconceivable that on the date of the registration of the FIR

itself the police somehow came to know that the Petitioner was evading his

arrest.

8. During the course of the hearing of this petition on 17 th April 2009, this

Court sought the explanation as to why the Petitioner did not approach any

Court for over two years seeking the reliefs sought in this petition. This

appeared to be surprising according to the Petitioner the prosecutrix had

sworn to an affidavit dated 9th August 2007 stating that she had made a false

allegation against the Petitioner. Faced with this query, Mr.Mathur sought an

adjournment which was granted.

9. At today‟s hearing, Mr.Mathur produced print outs of certain pages from

the internet showing a news item titled „Who Are The World‟s Most

Wanted?‟ published in the Parade Magazine in the United States in February

2009. Among those featured in the news item is the Petitioner whose

photograph, age and nationality are indicated. Under the caption `Crime‟ it is

stated: "accused of raping a maid in India, fled the country before the local

authorities could arrest him." It is urged before this Court that till the

Petitioner saw the above publication on the internet, he was not aware that he

had been declared a P.O. and was required to surrender in India.

10. The above contention of the Petitioner is palpably false. This is apparent

from the record of the case available with the police, provided by the learned

APP, and perused by this Court. The Petitioner filed three applications for

anticipatory bail before the trial court in this very case and each of them was

rejected. The first of such application was filed by him on 9 th August 2007

itself. The second application appears to have been rejected on 22nd/23rd

August 2007 and soon thereafter the Petitioner was declared P.O. Since these

applications were filed by the petitioner through counsel there was no

question of his not being aware of these facts. It appears that on 19th

November 2007, an application for getting the prosecutrix‟s statement again

recorded under Section 164 CrPC was filed. This application was dismissed

by the learned MM on 21st November 2007. It appears that the affidavit dated

9th August 2007 of the prosecutrix was indeed enclosed with this application.

Clearly, the trial court was not persuaded by the affidavit dated 9 th August

2007 of the prosecutrix which in any event was not addressed to the Court.

11. What is surprising is that the fact of the Petitioner having applied for

anticipatory bail on more than one occasion without success has nowhere

been mentioned in the present petition. In the considered view of this Court,

this is a wilful suppression of a material fact. It also belies the submission

that the Petitioner was not aware that he was wanted in a criminal case.

Instead a false impression was sought to be given that the petitioner was not

aware of his being declared P.O till he noticed the aforementioned pages on

the internet. The Petitioner has not come to this Court with clean hands.

12. The Petitioner has also failed to inform this Court that the application for

re-examination of the prosecutrix under Section 164 CrPC on the basis of her

affidavit of 9th August 2007 was rejected by the learned MM on 21st

November 2007. This is yet another wilful suppression of a material fact.

13. The crime for which the Petitioner is wanted is for the commission of

rape and indeed a very serious one. According to the prosecution, he

committed the crime on 15th February 2007 and before the prosecutrix could

approach the police, he fled the country on 18th February 2007. The charge

sheet was filed on 3rd March 2008. The case has not been able to progress to

the next stage because of the deliberate attempt by the Petitioner in

frustrating the criminal process by staying outside the country knowing fully

well that he is wanted in a very serious offence. The attempt of the Petitioner

to file this petition seeking the quashing of criminal proceedings by

suppressing material facts calls for the strongest disapproval. It constitutes a

gross abuse of the process of law.

14. The petition and the application are accordingly dismissed with costs of

Rs.1 lakh which will be paid by the Petitioner to the Delhi Legal Services

Authority within a period of four weeks from today. Proof of payment of

costs be deposited with the Registry. It is expected that the Respondent will

take expeditious steps to have the Petitioner, who has remained a fugitive

from justice for over two years, brought back to this country to face

prosecution for the aforementioned offences.

15. A copy of this order be given dasti to both the parties. A copy of this

order be also sent to the learned trial court concerned forthwith.

S. MURALIDHAR, J.

APRIL 21, 2009 ks