Jacob Martin vs State Of Nct Of Delhi
2011 Latest Caselaw 2044 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.M.C. 930/2011

                                                 Reserved on:      04.04.2011
                                                 Date of Decision: 08.04.2011

IN THE MATTER OF :
JACOB MARTIN                                                ..... Petitioner
                         Through: Mr. Rakesh Dwivedi, Senior Advocate with
                         Mr. Abhijat P. Medh, Mr. Rauf Rahim,
                         Mr. Viplav Sharma and Mr. Yadunandan Bansal,
                         Advocates alongwith petitioner in person.

                   versus

STATE OF NCT OF DELHI                                  ..... Respondent
                    Through: Mr. Pawan Sharma, Standing Counsel with
                    Mr. Navin Sharma, APP for the State, Mr. Harsh
                    Prabhakar, Advocate and Mr. R.A. Sanjeev, DCP,
                    Mr. Dev Raj, ACP and SI Rang Lal, Police Station:
                    IGI Airport, in person.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     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                             Yes
        reported in the Digest?

HIMA KOHLI, J.

1. The present petition is filed by the petitioner under Section 482

of the Cr.PC, praying inter alia for quashing of the orders dated 5.3.2011,

26.11.2010 and 22.12.2010 passed by the learned ACMM and for quashing

of process dated 3.1.2011 under Section 82 Cr.PC issued by learned ACMM

in the proceedings arising from FIR No.554/2004.

2. The brief facts of the case as set out in the status report filed by

the State in the connected matter, i.e., Bail Application No.218/2011, are

that the petitioner who claims to be a cricketer of repute at the international

level and is currently employed by the Railways, was the Manager of a

cricket club situated in Vadodara, by the name of Ajwa Sports Club. In his

capacity as the manager of the said club, the petitioner used to organize

cricket teams, which would play friendly matches in United Kingdom with

local English cricket clubs. In one such trip to United Kingdom, the petitioner

took a person by the name of Nemesh Kumar Manu Bhai Patel as a member

of his cricket team. The said person however stayed back in United

Kingdom, though the petitioner returned to India. On 11.12.2004, at the

instance of the Immigration Department, IGI Airport, the aforesaid FIR was

registered with Police Station: IGI Airport, New Delhi under Sections

420/468/471 IPC and Section 12 of the Passport Act, against Nemesh Kumar

Manu Bhai Patel, who had been caught by the United Kingdom Immigration

Department and deported back to India, as an illegal entrant on the ground

that on a scrutiny of his passport, it was found that the home stamp of

United Kingdom was counterfeit. In the course of the investigation, from the

disclosures made by the accused/passenger, it was ascertained that the

petitioner alongwith one Rajubhai Patel had taken `7 lacs from the

accused/passenger and had arranged for him to travel to United Kingdom,

by posturing as a member of a cricket team. For the said purpose, they had

obtained a UK visa for accused/petitioner from the British High Commission.

He further disclosed that while in United Kingdom, they had got a

counterfeit/forged United Kingdom home office stamp affixed on the

passport of the passenger/accused, through an agent namely, Janakraj

Bhogilal Pancholi, on payment of 3000 pounds. Further, three public

witnesses, namely, Kritbhai Shankarbhai, brother-in-law of the

accused/passenger, Rohit Purushottam Patel, a friend of Kritbhai and Rekha

Ben Patel, mother-in-law of the accused/passenger were examined and they

corroborated the facts disclosed by the accused/passenger. The British High

Commission was also requested by the Investigating Officer that the

documents and visa related to the accused/passenger be handed over,

however he was informed that the said documents had been weeded out and

could not be provided. It is stated that investigation was continued in the

case and it was finally realized that further investigation into the said matter

could only have been made with the assistance of the petitioner.

3. The petitioner has averred in the petition that he was informed

about the registration of the case in May-June 2010. The IO issued a notice

to the petitioner under Section 160 Cr.PC on 13.07.2010, calling upon him to

appear before him on 27.07.2010. However, the petitioner did not join the

investigation. A second notice was issued to the petitioner on 28.07.2010

for his appearance before the Investigating Officer on 23.8.2010 and for

providing a list of the players of Ajwa Sports Club, Baroda, who had gone to

United Kingdom alongwith him. However, the petitioner neither joined the

investigation nor did he furnish the list of players to the Investigating

Officer.

4. Finally, on 16.11.2010, the Investigating Officer approached the

learned ACMM with a request that non-bailable warrants be issued against

the petitioner and the agent, Rajender Bhikhubhai @ Rajubhai Patel, for the

purpose of further investigation. Non-bailable warrants against them were

issued by the Court on the same date. Pursuant to that, raids were

conducted at the houses of the petitioner and the agent, but the warrants

could not be executed as neither of the two could be found. On 22.12.2010,

the Investigating Officer submitted an application before the learned ACMM

stating inter alia that warrants against the petitioner and his co-accused

could not be executed and that they were deliberately avoiding arrest. It was

prayed that in the said circumstances, process under Section 82 Cr.PC be

issued against the said persons. On 3.1.2011, the learned ACMM ordered

for process to be issued against the petitioner under Section 82 Cr.PC, for

his appearance on 18.2.2011. On 03.1.2011 itself, the co-accused, Rajender

Bhikhubhai @ Rajubhai Patel was arrested and after a period of one month

he was released on bail. He had also made disclosures corroborating the

story of the accused/passenger. On 18.2.2011, instead of appearing before

the learned ACMM as directed, the petitioner filed an application for recall of

the NBWs and process under Section 82 Cr.PC issued against him by the

learned ACMM. The said application for recall was however dismissed vide

order dated 5.3.2011. Hence the present petition.

5. Learned Senior Counsel for the petitioner stated that the NBWs

and process under Section 82 Cr.PC were erroneously issued against the

petitioner and that the court below failed to appreciate the fact that he has

always been ready and willing to join the investigation. It was stated that

due to the ill health of his mother, the petitioner could not join the

investigation till December 2010. It is further stated that the petitioner had

travelled to Delhi on 26.12.2010 to appear before the Investigating Officer.

On his arrival at Delhi, the petitioner found out that the Investigating Officer

was out of station and he therefore stayed on till 30.12.2010. On

30.12.2010, the petitioner alongwith his lawyer approached PS IGI Airport,

where he had met ACP Dev Raj and DCP Mr. R.A. Sanjeev and remained

with them for two hours and subsequently, the said officers contacted the

Investigating Officer over telephone and after a detailed discussion with him

and on receiving an assurance from the petitioner that he would join the

investigation, he was allowed to return to Vadodara. The attention of this

Court was drawn to the letters dated 18.01.2011 and 9.2.2011 sent by the

petitioner to the ACP/DCP, where he had expressed his willingness to co-

operate with the investigation. It was submitted that the learned ACMM

erred in issuing the NBWs against the petitioner without following the proper

procedure of first issuing summons and other process to secure his

presence.

6. Learned Standing Counsel for the State vehemently opposed the

present petition on the ground that till date, the petitioner had neither

appeared before the Investigating Officer, nor joined the investigation. It

was contended that inspite of issuance of NBWs and process under Section

82 Cr.PC, the petitioner has deliberately evaded arrest. It was pointed out

that though the petitioner is employed with the Western Railways where he

is serving as a CTI, he has remained absent from duty for a period of one

and a half years. It was submitted that the petitioner had filed an application

before the learned ASJ for grant of anticipatory bail and when the same was

dismissed on 10.2.2011, he was strongly advised to join investigation, but

he failed to do so. The attention of this court was drawn to the letter dated

18.1.2011 faxed by the petitioner to the ACP/DCP on 20.1.2011, where he

mentioned his meeting with them at Delhi on 28.12.2010 and it was

submitted that the petitioner had made similar submissions before the

learned ASJ on 7.2.2011 during the hearing on his bail proceedings.

However, on 9.2.2011, when it came to his knowledge that the ACP/DCP had

filed an affidavit before the learned ASJ stating that the petitioner had never

met them and that DCP R.A.Sanjeev had remained on casual leave w.e.f.

27.12.2010 to 29.12.2010, the petitioner suddenly changed track. On the

very same date, i.e., 9.2.2011, the petitioner faxed a letter to the ACP/DCP

for amending his previous letter dated 18.1.2011 and claiming that the date

of meeting was wrongly mentioned as "28.12.2010" and in fact the correct

date was "30.12.2010". He simultaneously filed an additional affidavit before

the learned ASJ seeking to amend his bail application, to state that his

meeting with the DCP/ACP had actually taken place on 30.12.2010 and not

28.10.2010 as stated earlier. Learned Standing Counsel contended that the

change of date was a sheer afterthought and an attempt on the part of the

petitioner to improve his case and that the fact of the matter is that the

petitioner never met the DCP/ACP at Delhi on either 28.12.2010 or

30.12.2010. It is the contention of the State that in the light of the fact that

the petitioner has all along been avoiding arrest and till date he has not

joined the investigation and has further misled this court, the impugned

order of the learned ACMM needs no interference.

7. This court has heard the counsels for the parties. The argument

on behalf of the petitioner that the learned ACMM erred in issuing the NBWs

without following the proper procedure of law, has been dealt with at length

in the impugned order. The learned ACMM has not only dealt with the facts

of the case, and the relevant provisions of the Statute, he has also examined

all the decisions cited by the petitioner in support of his arguments only to

conclude that there was no merit in the said application seeking cancellation

of the order dated 16.11.2010 by which NBWs were issued against the

petitioner and the orders dated 22.12.2010, by which process under Section

82 Cr.PC was issued against him and finally, the subsequent process dated

3.1.2011.

8. This court is inclined to agree with the learned ACMM that the

authorities relied upon by the petitioner would have come to his aid had he

not neglected to join the investigation or not evaded arrest. Records reveal

that the petitioner was issued two notices dated 13.7.2010 and 28.7.2010

under Section 160 Cr.PC for his appearance as a witness before the

Investigating Officer and only when he failed to appear for a period of over

four months pursuant to the said notices, was a request made by the IO to

the learned ACMM in last week of December 2010, that NBWs be issued

against the petitioner. Even the said NBWs could not be executed against

the petitioner as he continued to evade arrest. When all the above steps

proved futile, as a last drop measure, the Investigating Officer requested the

trial court to issue process under Section 82 Cr.PC to secure the presence of

the petitioner. Looking at the above measures taken by the IO to secure the

presence of the petitioner before him, it is evident that due diligence was

exercised by the IO before approaching the Court for issuance of process

under Section 82 Cr.PC.

9. Further, admittedly, fact of the registration of the FIR in the

month of May-June 2010 was well within the knowledge of the petitioner.

Yet as per his version, it was only in the month of December 2010 that he

allegedly approached the Investigating Officer. It is also significant to note

that even though the learned ASJ advised the petitioner to join investigation

while rejecting his bail application on 10.2.2011, he failed to do so. The

petitioner further did not appear before the learned ACMM on 18.2.2010, as

directed in the process issued under Section 82 Cr.PC. Instead, he filed an

application for recall of the orders without bothering to appear before the

court of the learned ACMM. From the aforesaid conduct of the petitioner, it is

quite evident that he has been deliberately avoiding arrest and hence, the

contention that proper procedure was not followed by the learned ACMM

before taking coercive measures to secure the presence of the petitioner

before the court, is not borne out by the record.

10. The contention of the learned Senior Counsel for the petitioner

that the petitioner had expressed his willingness to join the investigation in

his letters dated 18.1.2011 and 9.2.2011, cannot be of any avail for the

reason that the abovementioned letters were issued subsequent to the

issuance of NBWs and process under Section 82 Cr.PC. Further, in the order

passed in Bail Application No.218/2011, decided by a separate order passed

today, this Court has expressed its serious reservations with respect to the

contention of the counsel for the petitioner that he had appeared before the

DCP/ACP, at PS IGI Airport on 30.12.2010, and participated in the

investigation, in view of the affidavits of the DCP/ACP denying that any such

meeting took place either on 28.12.2010 or 30.12.2010, more so when the

DCP had remained on casual leave from 27.12.2010 to 29.12.2010. It is

apparent from the record that the petitioner has been intentionally avoiding

the Court's proceedings. Records reveal that the IO had given a long rope to

the petitioner to present himself and participate in the investigation

voluntarily, however the petitioner has chosen to tie himself up with the very

same rope, leaving no room for doubt in the mind that he was unwilling to

co-operate in the investigation and it had become imperative to issue NBWs

and the process under Section 82 Cr.PC to secure his presence.

11. Given the aforesaid facts and circumstances, this Court declines

to interfere in the present petition, by exercising its inherent powers vested

under Section 482 of the Cr.PC. However, in view of the fact that upon the

directions issued to the petitioner by this Court on 15.3.2011, in his Bail

Application No.218/2011, calling upon him to present himself in Court on

4.4.2011, the petitioner duly appeared, he is granted a period of one week

to present himself before the trial court. If the petitioner surrenders before

the trial court within the time granted, the process issued against him under

Section 82 Cr.PC shall be recalled.

12. The petition is disposed of.

                                                      (HIMA KOHLI)
APRIL 08, 2011                                            JUDGE
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