Saurabh @ Neetu vs The State (Nct Of Delhi)
2012 Latest Caselaw 3849 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CRL.M.C. NO.2186 OF 2012 & Crl.M.A7776/12

                                 Date of Decision: 03.07.2012

SAURABH @ NEETU           ......               Petitioner
            Through: Mr.Mukesh Vatsa, Adv.

                           Versus

THE STATE (NCT OF DELHI)     ......         Respondent
             Through: Mr. Sunil Sharma, APP


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a petition filed by the petitioner under Section 482

Cr.P.C. assailing the order dated 22.5.12 passed by

Sh.S.C.Rajan, Additional Sessions Judge, Dwarka Courts

in Crl.Rev. No.98/12.

2. Briefly stated the facts of the case are that the petitioner

is an accused in case titled State Vs. Mukesh Rai & Ors.

which was registered vide FIR no.46/11, u/S

302/365/201/404/419/420/468/120B/34 IPC of PS

Palam Village.

3. The allegations against the petitioner and the other co-

accused persons were that they had kidnapped a lady

who was later on killed. However, on her behalf, some

other lady was presented before the office of the Sub-

Registrar and the property purportedly belonging to the

said lady, was transferred in favour of some third party

in furtherance of criminal conspiracy. There are

allegations of forging a document, using forged

document as genuine, cheating, destruction of evidence,

kidnapping and murder. The matter was investigated

and a charge sheet was filed against accused persons,

however, at the time of filing of the first charge sheet,

the petitioner was evading his arrest and consequently,

proceedings under Section 82/83 Cr.P.C. were initiated

against him.

4. The learned Magistrate declared the present petitioner as

proclaimed offender on 13.10.2011.

5. On 12.1.2012, the present petitioner was arrested by

Head Constable Naresh Kumar of P.S. Greater Kailash in

pursuance to the powers under Section 41(1) (c) of

Cr.P.C. and he was remanded to judicial custody on

13.1.12 when he was produced before the learned

Magistrate. Necessary intimation was given to the

concerned police station where FIR no.46/11 was

registered, whereupon after completing the formalities,

appropriate application before the learned Magistrate was

filed on 16.1.12 seeking permission to formally arrest the

present petitioner in the case pertaining to kidnapping,

murder, cheating and using forged document as genuine.

The IO obtained police remand and on 20.1.12, the

accused was remanded to judicial custody again. On

11.4.12, the petitioner filed an application u/S 167(2)

(a)(i) of Cr.P.C. seeking statutory bail on the ground that

he had been in custody for 90 days from the date of his

arrest on 12.1.12 and therefore, he be enlarged on bail.

6. The learned Magistrate dismissed the said application on

16.4.12 by observing that so far as the arrest of the

accused on 12.1.12 is concerned, it was in connection

with an offence u/S 174(A) IPC, which is an independent

offence of being a proclaimed offender. As regards, the

arrest of the petitioner in the present case, the date was

taken as 16.1.12, when he was formally shown to have

been arrested and therefore, the learned Magistrate

came to the finding that the period of limitation of 90

days reckoned from the date of formal arrest i.e. 16.1.12

and the same had not elapsed as the supplementary

charge sheet was filed within 90 days.

7. The petitioner filed the revision petition before the Court

of Sessions and relied upon case titled CBI Vs. Anupam J

Kulkarni AIR 1992 SC 1768 and State of Maharashtra

Vs. Bharti Chandmal Varma @ Ayesh Khan AIR 2002 SC

285 to contend that the period of limitation of 90 days is

to be taken from the date of his first arrest or at best

from 13.1.12 and not from the date 16.1.12 when he

was formally arrested in the instant case.

8. This plea of the petitioner was dealt with by the learned

Sessions Judge in extenso and the revision petition was

rejected by observing as under:-

"19) In the present case the accused/revisionist was initially arrested on 12.1.2012 u/s 41.1 Cr.P.C. and was remanded to JC on 13.1.2012. The information to IO of the present case was also sent on 13.1.2012 who appeared before the court on 16.1.2012 and arrested the revisionist in this case after due permission from the court in FIR no.46/11 of PS Palam Village and on the same day PC remand for four days was taken. Challan was filed on 12.4.2012 and application u/s 167(2) Cr.P.C. was filed on 11.4.2012. Firstly, the accused/revisionist was arrested u/s 41.1 Cr.PC on 12.1.2012 as he was declared proclaimed offender by the court of Ld. MM after initiating the proceedings u/s 82/83 Cr.PC which is punishable u/s 174A IPC. Thereafter, IO was informed and present petitioner was arrested by the IO in case FIR no.46/11 on 16.1.2012. Even the first PC remand was also taken on 16.1.2012. Case Law 2012(1) RCR (Criminal) 303 titled Pragyna Singh Thakur Vs. State of Maharashtra is clear on this aspect that the period of 90 days for filing chargesheet is date of first order of remand and not date of arrest. Taking 16th Jan as first police remand day, total days comes out as 86 days from the date of arrest of the accused/applicant.

                 20) Ld.  Counsel for  the        revisionist
                 contended that the period       should be



                  counted from 13th Jan. as on that day

revisionist was produced before the Ld. MM. Even if I take these arguments of the Ld. Counsel into consideration and after taking the help of case law State of MP Vs. Rustam (1995) 3 (Supp) SCC 221:1995 SCC (Cri) 830, wherein it has been stated that the day on which the accused was remanded to JC is to be excluded and the day on which the charge sheet is filed is also to be excluded to determine the period from the date of apprehension, it is quite clear that period is to be counted from 14th Jan. and thereby totaling 18 days of Jan., 29 days of Feb, 31 days of March and 11 days of April thereby totaling to 899 days.

21) I have perused the order passed by the Ld. MM dated 16.4.2012. Ld. MM cannot remand an accused to custody for a period of more than 90 days in total.

Accordingly, 90 days would start running from the date of first remand. In view of my above discussions the charge sheet has been filed within 90 days from the date of first order of remand. Therefore, revisionist is not entitled to default bail. There is no illegality, infirmity or impropriety in the order dated 16.4.2012 passed by the Ld. MM.

22) In view of my above discussions and material available on file, the order dated 16.4.2012 passed by the Ld. MM is maintained and the present revision petition is hereby dismissed."

9. I have heard the learned counsel for the petitioner. The

two judgments cited before the Court of Sessions i.e.

Anupam J. Kulkarni's case and Bharti Chandmal Varma's

case (supra) have been relied upon before this Court

also.

10. The learned counsel has not been able to explain as to

how he overcomes the bar under Section 397 (3) of the

Cr.P.C. which reads as under:-

"397. Calling for records to exercise powers of revision.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

11. A perusal of the aforesaid Section would show that a

party who has availed of the remedy of revision once in

the Sessions Court cannot be permitted to file the second

revision petition in the High Court even under the garb of

petition under Section 482 Cr.P.C.

12. In my considered opinion, by filing the present petition

under the garb of Section 482 Cr.P.C., the petitioner is

only trying to circumvent the provision of Section 397 (3)

Cr.P.C. as it tantamounts to a second revision. I am

cognizant of the fact that the language of Section 482

starts with non obstante clause and despite a party

having exercised his right of revision, still the Court may

in exercise of its powers under Section 482 Cr.P.C. in

appropriate cases, pass orders in the interest of justice or

to prevent the abuse of the processes of law.

13. I do not find that in the instant case, the facts are such

which warrant passing of an order in the interest of

justice or that there is any gross abuse of the processes

of law. This is on account of the fact that the allegations

against the petitioner are very serious in nature. There

are allegations of conspiracy of kidnapping a woman,

liquidating her and presenting other lady as impersonator

on behalf of the deceased and getting her property

registered in the Sub-Registrar's office. Despite

such serious allegations having been levelled against

him, the petitioner tried to evade the processes of law by

avoiding his arrest and not permitting the prosecution to

do its job. So much so, that he had to be declared as a

proclaimed offender and it was only by chance that he

was arrested on 12.1.12. Any person who seeks

invocation of the extraordinary powers of the High Court

must also show that he is a person who has an immense

faith in the processes of law, conversely a person who

does not have faith in law or tries to evade from the

processes of law does not deserve any sympathy or any

assistance by the Court.

14. In addition to this, the supplementary charge sheet, as

on date, stands already filed and this is in my view only

an exercise by the petitioner to come out from the jail by

taking advantage of the technicalities, rather than,

showing on merits that his involvement in the said case

is not there. Merely because this Court is a superior

Court and may hold a different view than the one which

has been held by the Court of Sessions does not mean

that this Court should exercise its discretion and

entertain a petition of this nature.

15. I accordingly feel that this petition u/S 482 Cr.P.C.

essentially tantamount to a second revision filed by the

petitioner which cannot be permitted to be done. Hence,

the petition is dismissed.

V.K. SHALI, J.

rd 3 July, 2012 RN