Deepa Devi vs State Of Nct Of Delhi
2009 Latest Caselaw 5181 Del

* IN THE     HIGH     COURT       OF    DELHI        AT    NEW     DELHI
+     BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009

%                       Reserved on:               11th December, 2009
                        Date of Decision:          14th December, 2009

#     DEEPA DEVI                                          ..... Petitioners
      DAYA RAM and
      JAGDISH
                        Through:Mr. S.D. Singh and Mr. Rahul
                        Kumar Singh, Advocates
!
                        versus

$     STATE OF NCT OF DELHI                   ..... Respondent
                   Through:Mr. Amit Sharma, APP for the
                   State, Insp. J.S. Mishra, PS Burari.

*     CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the 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 in the Digest?                                    Yes

: V.K. JAIN, J.

1. These are three petitions for grant of anticipatory bail. The

petitioner Daya Ram is the father-in-law, Deepa Devi is the

mother-in-law and Jagdish is the brother-in-law of the deceased

Savita, who was married to Purshottam on 13th April, 2006 and

who committed suicide on 31st May, 2009, within 7 years of her

marriage.

2. Prakash, brother-in-law of the deceased Savita was granted

anticipatory bail by this court on 11.12.2009.

3. As per the status report filed by the respondent, the

evidence collected during investigation shows that the deceased

Savita was physically and mentally tortured by the petitioners as

well as her husband. It has been further stated in the status

report that during the course of investigation raids were

conducted but all of them are absconding and concealing

themselves deliberately in order to avoid investigation and arrest.

The bail application of the petitioners have already been

dismissed by the learned Addl. Sessions Judge.

4. During the course of arguments, the learned Addl. Public

Prosecutor placed on record the photocopy of the process issued

by Shri J.P. Nahar, Metropolitan Magistrate, Delhi against the

petitioners Deepa Devi, Daya Ram and Jagdish under section 82

of the Code of Criminal Procedure. The report of the process

server shows that after public proclamation, one copy of the

process was affixed on the spot and another copy was affixed on

the notice board of Tis Hazari Courts. One copy of the process

was also affixed at the gate of ISBT, Kashmiri Gate. The learned

MM had also directed that the process issued against the

petitioner under section 82 of Cr.PC be also executed by way of

publication in English and Hindi national newspapers. Though

the copy of the newspaper publishing proclamation has not been

placed on record, the learned Addl. Public Prosecutor, on

instructions from the Investigating Officer who was present in the

court, stated that the proclamation has been duly published in the

newspaper in terms of the order of the learned MM. A copy of

the order issued by the office of the Commissioner of Police, Delhi

seeking publication of proclamation in Times of India and Amar

Ujala has also been placed on record. Though the learned

counsel for the petitioners disputed the issue and publication of

the process under section 82 of Cr.PC , considering the

documents filed by the prosecution, I do not see any reason to

disbelieve the statement made by the learned Addl. Public

Prosecutor on instructions from the IO. I am, therefore, satisfied

that a process under section 82 of Cr.PC was issued against the

petitioners.

5. In my view, a person who is absconding despite rejection of

his application for anticipatory bail by the court of Sessions and

despite issue and publication of process against him under

section 82 of Cr.PC, is not entitled to grant of anticipatory bail

save in an exceptional case, justifying departure from this

principle. But for existence of peculiar and special facts and

circumstances of a given case, the Court would not be justified in

considering the anticipatory bail application of such a person on

merits. A person who is found to be absconding, ordinarily, is

not entitled to grant of such a discretionary relief. He must

surrender before the concerned court and seek regular bail. If

anticipatory bail is granted to a person who is evading the process

of law by absconding, despite rejection of his petition for grant of

anticipatory bail and publication of proclamation against him

under section 82 of Cr.PC, that would encourage the criminals to

go underground, evade the process of law by adopting dubious

means.

6. In Jagtar Singh vs. Satendra Kaur 2002(6) Scale, the

Hon'ble Supreme Court observed that normally when the accused

are absconding, there is no question of granting anticipatory bail

or regular bail. In State of Maharashtra vs. Mohd. Sajid Hussain

2008(1) SCC (Crl.) 176, the Hon'ble Supreme Court, while

examining the principles governing grant of anticipatory bail,

held that one of the four factors relevant for considering the

application for grant of anticipatory bail is the possibility of the

applicant, if granted anticipatory bail fleeing from justice. If a

person is found to be absconding despite raids conducted by the

police, benefit of anticipatory bail by the Sessions court and issue

and publication of process against him under section 83 of Cr.PC,

the prosecution would not be unjustified in claiming that no

anticipatory bail is granted to such a person who is not likely to

attend the trial and may flee from justice. Therefore, in the

absence of exceptional and peculiar circumstances, the court

would not be justified in granting anticipatory bail to such a

person.

7. After the order had been reserved, the learned counsel for

the petitioners has, in the afternoon, submitted photocopies of the

following judgments, without supplying copies or list of

judgments to the Addl. Public Prosecutor:

i). JT 2008 (7) SC 407 -Suresh Chander Raman Lal vs. State of

Gujarat & Anr.

ii). 98(2002) DLT 181 - Dalmiya Resorts Int. Pvt. Ltd. vs. Deepa

Gupta.

iii). 93(2001) DLT 804 - Sunil Kumar vs. State & Anr.

iv). 106 (2003) DLT 439 - G. Sagar Suri vs. State & Anr.

v). 132 (2006) DLT 692 -Sanjay Chaturvedi vs. State.

vi). 143(2007) DLT 744 -Rohit Kumar @Raju vs. State of NCT of

Delhi; and

vii). Order dt. 8.4.2009 passed in Criminal Revision Petition

No.645 of 2007 passed by this Hon'ble Court.

8. In the case of Sureshchandra Ramanlal (supra), the medical

report on the health of the appellant showed that he was suffering

from Lumbar Canal Stenosis with severe Lumber Sodalities of

L2-3-4 and L5S1. He had sustained fracture of ankle for which

he was operated. He was a known heavy diabetic on oral

anti-diabetic and was severally obese. He was not in a position

to do his daily activities without at least two assistants and was

absolutely bad ridden. There were 49 accused in the case and

each one of them had already been enlarged on bail. The charge

against the appellant was under section 406,409,420,439,471

and120B of IPC. The Chairman, Vice-Chairman, Managing

Director, a number of officers and 30 loanees of the bank had

been enlarged on bail. In the facts and circumstances of the

case, more particularly having regard to the health of the

appellant, anticipatory bail was granted to him. The facts of the

present case are altogether different. None of the petitioners is

suffering from such an acute illness. Moreover, in the present

case, the process issued against the petitioners under section 82

Cr.PC has already been executed by proclamation, affixation and

publication and has not been challenged in any proceedings.

9. In the case of Dalmiya Resorts Int. Pvt. Ltd.(supra) this

Court noted that absconding does not necessarily imply change of

place and the petitioner being a company the question of

absconding does not exist. This was the case of

non-performance of section 82(1) and (2) of Cr.PC and the

process was issued against the accused persons without noticing

the report of their warrants. The judgment has absolutely no

applicability to the facts and circumstances of the present case.

Moreover, the process issued under section 82 of Cr.PC is not

under challenge before this court.

10. In the case of Sunil Kumar (supra), no effort had been made

to serve the warrant on the address given in the FIR and the court

did not record satisfaction that the petitioner was concealing

himself. In these circumstances the order issuing proclamation

was set aside. Again the judgment has no application to the

present case.

11. In G. Sagar Suri (supra), this Court observed that it is

mandatory for the Metropolitan Magistrate to issue summons

before issuing coercive process of warrant of arrest and initiating

process under section 82 and 83 of Cr.PC. Again this judgment

has no applicability as the petitioners have not filed any petition

challenging the process under section 82 of Cr.PC

12. In the case of Sanjay Chatruvedi(supra), the petitioner was

not absconding and was in fact appearing through his counsel.

In these circumstances, this court took the view that non-bailable

warrant could not have been issued and process under section 82

and 83 of Cr.PC could not have been issued against him. The

facts of the present case are altogether different.

13. In the case of Rohit Kumar(supra) this court held that an

attachment warrant could be issued only after issuance of

proclamation under section 82 Cr.PC and that there must be a

report of absconding or concealment, before a process under

section 82 can be issued. Again, this judgment is of no help to

the petitioner as they have not challenged the process issued

against them. This judgment does not help the petitioners in any

manner.

14. In the case of Yogender Pratap Singh (supra) an effort was

made by the petitioner to appear through his counsel without

seeking bail and his application for that purpose was rejected by

the trial court. Again, this judgment has no applicability, in the

facts of the present case.

15. For the reasons given in the preceding paragraphs, I am of

the considered view that since the petitioners are absconding and

these are no exceptional circumstances, entitling them to this

relief, despite their being absconders, they are not entitled to

anticipatory bail. The bail application Nos. 1355/2009,

1588/2009 and 1926/2009 are hereby dismissed.

V.K. JAIN,J DECEMBER 14, 2009 RS