Delhi High Court
Ashok Malik vs M/S. Soga Impex Pvt. Ltd. & Anr on 6 July, 2012
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. No.2207/2012 & Crl. M.A. No.7855/2012
Date of Decision : 06.07.2012
ASHOK MALIK ...... Petitioner
Through: Mr. Arunab Chowdhary, Adv.
Versus
M/S. SOGA IMPEX PVT. LTD. & ANR. ...... Respondents
Through: Mr. Rajesh Mahajan, Adv.
for respondent no.1
Mr. Sunil Sharma, APP
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (oral)
Crl. M.A. No.7850/2012 (for exemption)
1. Allowed, subject to the deficiency being rectified.
Crl. M.C. No.2207/2012 & Crl. M.A. No.7855/2012
2. This is a petition filed under Section 482 Cr.P.C., challenging the
orders dated 2.3.2012 and 27.4.2012 passed by the learned
Metropolitan Magistrate, Saket Courts, New Delhi in Complaint
Case Nos.3648/01 of 2001 and 163/01 of 2001 titled M/s. Soga
Impex Pvt. Ltd. -vs- Ashok Malik.
3. I have heard the learned counsel for the petitioner and the
learned counsel for the respondent and have gone through the
record. I have also heard the learned counsel for the State, who
has appeared in response to the advance copy having been
served on him.
4. It has been contended by the learned counsel that the petitioner
was enlarged on bail on 19.12.2006 in the abovementioned
complaint cases on his furnishing a Personal Bond in the sum of
Rs.30,000/- with one surety for the like amount and thereafter
has been granted permanent exemption. However, on 2.3.2012,
the learned Metropolitan Magistrate had issued non-bailable
warrants on account of the non-appearance of the petitioner as
well as his counsel. It has been contended that the petitioner
had filed an application for cancellation of warrant under Section
70 (2) of Cr.P.C., however, the said application was dismissed by
the learned Metropolitan Magistrate and it was directed that his
proclamation under Section 82 Cr.P.C. be issued.
5. Feeling aggrieved, the present petition has been filed.
6. It has been stated that the petitioner is a resident of England
and, therefore, he could not come, as he had applied for
extension of his Visa to travel to India.
7. A perusal of the complaint shows that the petitioner was
summoned as an accused to face the trial in respect of an
offence under Section 138 of the Negotiable Instruments Act,
1881. The petitioner was enlarged on bail on 19.12.2006 and
was required to be present on all the dates in the Court
whenever the matter was to be taken up. It has been stated by
the learned counsel that the petitioner was exempted from
personal appearance. Even if the petitioner is exempted from
personal appearance, he is required to be present on all such
dates when he was directed so to appear. Even on the dates for
which he was exempted, he was required to be duly represented
by a counsel.
8. In the instant case, the petitioner had travelled beyond the
jurisdiction of India, without seeking the permission of the Court.
Normally speaking, if the petitioner wanted to travel abroad, he
ought to have obtained the permission from the Court for
undertaking such a travel. On 2.3.2012, neither the
accused/petitioner nor his counsel was present and consequently
after waiting for them till about the lunch time, the Court had no
other option but to issue non-bailable warrants. The petitioner is
purported to have filed an application under Section 70 (2) of
Cr.P.C. for cancellation of warrants. Various grounds for
cancellation of warrants have been given, including an
application seeking extension of Visa to travel to India.
9. First of all, warrants cannot be cancelled in absentia. For this
purpose, the accused has to appear before the Court concerned.
In addition to this, the learned Metropolitan Magistrate, on the
date when the application under Section 70 (2) of Cr.P.C. was
taken up, that is on 27.4.2012, found that the counsel
representing the accused had not filed his Vakalatanama and,
therefore, he had no authority to represent the accused and
even the records shows that even the surety was not available at
the address where he was supposed to be living. In such
circumstances, the Court had no other option but to issue the
proclamation against the accused.
10. The learned counsel has relied upon the judgment of this Court
in Prem Cashew Industries & Ors.-vs- Zen Pareo, 88(2000) DLT
59 to contend that before issuance of Proclamation, an
application for cancellation of warrants ought to have been
considered by the learned Metropolitan Magistrate. I have gone
through the said judgment. The facts of the said case are totally
different than the case in hand.
11. In the present case, the petitioner was exempted from personal
appearance after being enlarged on bail. Whenever the personal
exemption is granted, the accused is required to be duly
represented on all the dates by a duly authorized counsel. On
2.3.2012, neither the accused nor his duly authorized counsel
was present. In addition to this, the accused, without obtaining
the permission of the Court, had travelled beyond the jurisdiction
of this Court. This clearly is a violation of the terms and
conditions of the Bail Bond, as he ought to have first obtained
the permission and then only he could have travelled abroad.
Even if this was ignored, the surety should have at least been
available, to assure the Court that the accused would return
back to India. Even the surety did not appear and as a matter of
fact, he was also not traceable. Ultimately, this gives an
indication that both the accused as well as the surety are not
amenable to the processes of law. Under these circumstances,
the learned Metropolitan Magistrate was left with no other option
but to issue the proclamation, which he did.
12. I do not find any infirmity in the orders passed by the learned
Metropolitan Magistrate. Neither there is any abuse of the
processes of law in the impugned orders nor there is any other
order required to be passed in the interest of justice.
Accordingly, the petition filed by the petitioner is totally
misconceived and the same is dismissed.
V.K. SHALI,J
July 06, 2012/tp
