Delhi High Court
Suresh Kaushik vs State Of Nct Of Delhi on 7 December, 2009
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 553/2009
SURESH KAUSHIK ..... Appellant
Through: Mr. Ramesh Gupta, Sr. Adv. with Mr.
Bharat Sharma, Adv.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Amit Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 07.12.2009
This is an appeal against the order dated 29 th May, 2009 passed by the
learned Addl. Sessions Judge, whereby the appellant was convicted and fined
under Section 350 of the Code of Criminal Procedure.
A perusal of the record of the trial court would show that a notice
addressed to SHO Police Station Nizamuddin was issued for 28 th May, 2009,
seeking a verification report in respect of the death of the accused Shorab
Sheikh. A notice, as a witness, was also issued to the SHO for 28 th May,
2009.
The notice issued to the appellant, who is SHO Police Station
Nizamuddin, was served for 28th May, 2009. He, however, did not appear on
that date and sent a request for giving some other date on the ground that
he was engaged in law and order duty on account of Punjab scenario.
The process, on which verification report was sought by the learned
Addl. Sessions Judge, was returned to the court with the report that 135,
Hastsal Road, Uttam Nagar was not a complete address and, therefore, the
summons could not be served.
The learned Addl. Sessions Judge issued notice, purporting to be under
Section 350 of the Code of Criminal Procedure, to SHO Police Station
Nizamuddin for 29th May, 2009, directing him to verify the death of the
accused Shorab Sheikh and file report on 29 th May, 2009.
A perusal of the process issued for 29 th May, 2009 would show that it
was served by Head Constable R.S. Rao on Smt. Anjum, wife of deceased-
accused Shorab Sheikh. It is thus obvious that this notice was never served
upon the appellant. Moreover, the process issued for 29 th May, 2009 cannot
be said to be the notice envisaged under Section 350 of the Code of Criminal
Procedure. A bare perusal of Section 350 of the Code would show that if any
witness being summoned to appear before a Court without just excuse
neglects or refuses to attend the Court, and the Court is satisfied that it is
expedient in the interests of justice that such a witness should be tried
summarily, it may take cognizance of the offence and after giving the
offender an opportunity of showing cause why he should not be punished
under this Section, sentence him to fine not exceeding one hundred rupees.
The notice issued to the appellant for 29th May, 2009 does not give any such
opportunity to him.
Mr. Ramesh Gupta, learned senior counsel for the appellant states that
no other notice was given to the appellant at any point of time before he was
convicted and sentenced to pay a fine of Rs.100/-.
Since neither the process issued by the learned Addl. Sessions Judge
for 29th May, 2009 was served upon the appellant nor can it be said to be a
notice envisaged under the aforesaid provision of the Code, the order passed
by the learned Addl. Sessions Judge cannot be sustained in law.
Since the process issued by the Court for 29 th May, 2009 was not
served upon the appellant and was not a notice as envisaged under the
Code, I need not go into the question as to whether the appellant can be said
to be a witness within the meaning of Section 350 of the Code of Criminal
Procedure, when he admittedly was neither a witness for the prosecution nor
for the defence and being SHO was merely directed to verify the death of an
accused.
For the reasons given in the preceding paragraphs, the impugned
order is set aside.
CRL.A. 553/2009 stands disposed of.
If the fine has already been recovered from the salary of the appellant,
it shall be refunded to him within four weeks. If any adverse entry has been
made in the ACR of the appellant, on account of the order of conviction
under Section 350 of the Code of Criminal Procedure, that entry shall also be
deleted within that period.
V.K. JAIN, J
DECEMBER 07, 2009
Ag
