Delhi High Court
Deepak Kumar @ Deepak Saha vs State on 21 March, 2012
Author: Suresh Kait
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No.787/2012
% Judgment delivered on: 21st March, 2012
DEEPAK KUMAR @ DEEPAK SAHA ..... Petitioner
Through: Mr. Nagendra Rai, Sr. Advocate with
Mr. Sandeep Kumar, Mr. Chandra Bhushan Prasad
and Mr. Jitendra Sarin, Advs.
versus
STATE ..... Respondent
Through: Ms. Rajdipa Behura, APP for State.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the instant petition, the petitioner has sought to quash the order
dated 12.10.2010, passed by Addl. Sessions Judge, Tis Hazari Courts, Delhi
in Crl. Rev. No. 69/2010, PS-Special Cell.
2. Mr. Nagendra Rai, Sr. Adv. appearing on behalf of the petitioner has
raised legal issue that the Revisional Court neither issue any notice nor right
of hearing was given to the petitioner. Therefore, the impugned order passed
by the Revisional Court is bad in law.
3. The facts in brief of the case are that a case was registered against the
petitioner vide FIR no. 69/2007 under Section 384/506/34 Indian Penal Code
at PS-Special Cell, Delhi. Chargesheet and thereafter supplementary charge
sheet have already been filed against co-accused Brijesh Kumar and
Tribhuvan, however no charge sheet has been filed against the petitioner as
he is absconding.
4. Ld. Sr. Adv. has further submitted that the charge-sheet against the
petitioner has not been filed because of the fact that investigation is pending.
5. Vide order dated 07.07.2010, the Investigating Officer moved an
application for issuance of NBW against the petitioner. Same has been
dismissed by the ld. ACMM-01, Delhi, on the ground that in the course of
proceedings cognizance was taken by the court on 17.08.2008 and
Production Warrants were ordered to be issued against co-accused Brijesh
Singh.
6. It is further recorded in the said order that in the charge-sheet, it is
stated that efforts were made to trace out the petitioner Deepak along with
co-accused, but they could not be traced out, therefore, against them
investigation are still going on and proceedings under Section 173 (8) of
Cr.P.C. will be carried out in future, in the event they are traced out.
7. Ld. ACMM has further recorded that no action has been taken by the
Court against the petitioner along with the co-accused till date, even the
supplementary chargesheet or any report pursuant to the investigations under
Section 173 (8) Cr.P.C. has been filed in the present case against them. At
the most, it can be presumed that the investigations are going on against the
accused named in the application. Thus, no proceedings are pending in the
court against them.
8. While relying on the case decided by Hon'ble Supreme Court reported
in AIR 1997 SC 2495 titled as State vs. Dawood Ibrahim Kaskar, the
application moved by the Investigating Officer was rejected.
9. Being aggrieved, the Police approached the Court vide Crl. Rev. No.
69/10, same was allowed on the ground that petitioner is evading arrest and
absconding, even after cognizance has been taken against other co-accused.
Accused Brijesh Kumar is facing trial and production warrant has been
issued against accused Tribhuwan, whereas the petitioner along with co-
accused Sanjay Pratap Singh are evading arrest.
10. Ld. Revisional Court has recorded that the trial court is competent to
issue NBW against the petitioner and co-accused Sanjay Pratap Singh and it
has committed error in appreciating the ratio of decision of Apex Court in
Dawood Ibrahim Kaskar (Supra).
11. Accordingly, the Revisional Court directed ld. ACMM to issue the
process.
12. Ld. APP on the other hand submits that petitioner along with co-
accused Sanjay Pratap Singh have been evading arrest, therefore, the police
has already initiated proceedings under Section 82 Cr.P.C. and thereafter
proceedings Under Section 83 Cr.P.C. are also being initiated.
13. Since the chargesheet and supplementary charge-sheet have been filed
against the co-accused persons, who are facing trial, therefore application
made before the trial court were in a proper procedure and the ld. ACMM
ought to have allowed the same.
14. Ld. APP further submits that even before initiating the proceedings
under Section 82 Cr.P.C. they moved an application on 10.05.2010.
15. On the legal issue raised by ld. Counsel as the opportunity of being
heard not given by the Revisional Court while setting aside the order of trial
court, at least, at that stage, the right of being heard accrued of the petitioner.
16. On this issue, though, I find force on the issue raised by ld. Counsel
for the petitioners, I have already taken the same view while relying upon
the case of Pepsi Food Ltd. & Anr. Vs. Special Judicial Magistrate and
Ors., 1998 (5) SCC 749, in Crl. M.C. 1737/2011 decided on 19.03.2012 and
the Coordinate Bench of this Court has also taken the same view as taken by
this Court. However, the same issue has been referred to the Larger Bench
because of the fact that another Coordinate Bench of this Court has taken a
view contrary to the view taken by this Court and the other Coordinate
Bench of this Court. However, the case in hand is on different footing.
17. Against the petitioner cognizable case has been registered. The
Investigating Officer has tried his level best to arrest him however, till date
the petitioner has managed to abscond. If I set aside the impugned order, the
position will remain the same. He cannot be allowed to evade the
investigation. And vide the instant petition the petitioner is not seeking
quashing of FIR registered against him.
18. Other legal issue raised by ld. Counsel for the petitioner is that against
the interlocutory order Revision was not maintainable.
19. Without going on the issues raised, in the facts and circumstances of
this case, since the petitioner has approached this Court, therefore, the
proper way for him would be either he surrender before the Investigating
Officer or before the Trial Court, since the case has been registered against
him and pending for investigation.
20. At this stage, ld. Counsel appearing on behalf of the petitioner sought
two weeks time to do the needful.
21. Accordingly, request of ld. Counsel accepted. Therefore, the
petitioner is directed to surrender either before Investigating officer or
before ld. Trial Court within 2 weeks as prayed, so that the pending
investigation may be completed.
22. I here make it clear that if the petitioner does not comply the
directions issued by this court, in that eventuality, the ld. Trial Court shall
take steps as directed by ld. Revisional Court.
23. Crl. M.C. 787/2012 is disposed of on the above terms.
24. Since the main petition is disposed of Crl. M.A. 2758/2012 (Stay)
become infructuous and disposed of as such.
25. Dasti.
SURESH KAIT, J
MARCH 21, 2012
Jg
