State vs Virender Yadav & Anr
2013 Latest Caselaw 4818 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CRL.L.P. 356/2012
      STATE                                                  ..... Petitioner
                          Through:     Mr. Dayan Krishnan, Additional
                                       Standing Counsel (Crl.) with
                                       Ms.Manvi Priya, Advocate

                          versus

      VIRENDER YADAV & ANR                   ..... Respondents
                  Through: Mr. Sunil Tiwari, Advocate for
                           respondent No. 2.

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MS. JUSTICE INDERMEET KAUR

                               ORDER

%                              22.10.2013

KAILASH GAMBHIR, J.

1. Present criminal leave petition has been preferred by the State

challenging the judgment dated 22nd October 2011 passed by the learned

Additional Sessions Judge, Fast Track, New Delhi, thereby acquitting the

accused persons for the offence punishable under Section 21 of NDPS

Act. Notice of this criminal leave petition was directed by this court vide

orders dated 24th September 2011, pursuant thereof, respondent No. 2 had

appeared alongwith his counsel. But so far as respondent No. 1 is

concerned, he remained unserved. Non-bailable warrants were directed

by this court against respondent No. 1 vide order dated 1 st August 2013

but the same also remain unexecuted. Therefore, fresh Non-bailable

warrants were also executed against him for today but without there being

any change in the position.

2. Mr. Dayan Krishnan, learned Additional Standing Counsel

(Criminal) for the State submits that respondent No. 1 is already an

accused in FIR No.380/2008 under Section 21 of NDPS Act, Police

Station, Connaught Place, New Delhi and in the said case also,

respondent No. 1 has not been appearing and consequently the

proceedings under Section 82 of Criminal Procedure Code,

1973(hereinafter referred to as the "Cr.P.C.") for declaring him a

proclaimed offender have been initiated by the learned trial court.

Learned Additional Standing counsel (Crl.) for State submits that the

State has made all efforts to trace him which includes circulation of his

photographs to all the beat staff and the secrete informers. Further the

search of respondent No. 1 has also been carried at several places like

Palika Bazar, Hanuman Mandir, Bangla Saheb Gurudwara, New Delhi

Railway Station. However, despite best efforts, his whereabouts could not

be ascertained.

3. As per learned Additional Standing Counsel (Criminal) for the

State, in the absence of any information with the police about his latest

address, it is now difficult to execute the Non-bailable warrants against

him. Learned Additional Standing Counsel (Criminal) requests that the

present criminal leave petition be adjourned sine die and as and when

respondent No. 1 appears in the said criminal case or is traced otherwise,

then the State shall be allowed to move an application to seek revival of

the present leave petition.

4. We have heard learned Additional Standing Counsel for the State.

5. Section 437A, Cr. P.C. was introduced by Clause 40 of the Code of

Criminal Procedure (Amendment) Bill, 2006. It has been enacted as Code

of Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of 2009) (the

Amending Act) and enforced with effect from 21.12.2009. The same is

reproduced as under:-

1. Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months

2. If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.

6. The above provision mandates that before the conclusion of the

trial and before the disposal of the appeal, the trial court or the appellate

court, as the case may be, shall require the accused to execute bail bond

with sureties to appear before the High Court as and when such court

issues notice in respect of any appeal or petition, filed against the

judgment of the respective courts and such bail bonds shall be in force for

six months. The provision further envisages that the bail bond shall be in

force for the period of six months. Clause 2 of Section 437A Cr.P.C.

deals with the consequences where the accused fails to appear before the

appellate court then, it will result in forfeiture of his bond and the

procedure under Section 446 Cr.P.C. shall be followed against him.

Notes on Clause 40 (by which 437A was introduced) of the Bill provides

the purpose of the amendment as follows:

"to provide for the Court to require accused to execute bail bonds with sureties to appear before the higher Court as and when such Court issues notice in respect of an appeal against the judgment of the respective Court"

7. Thus the said section was introduced by the Legislature with the

solemn object that till the order of acquittal passed by the learned trial

court attains finality the accused is legally bound to appear before the

next appellate court.

8. Once the leave to appeal is granted to the State, such appeal

acquires the same status as is conferred on the accused to challenge the

order of conviction and sentence in terms of Section 374 Cr.P.C. The

presence of the accused even though he has been acquitted by the learned

trial court is imperative before the appellate court because, if after the

order of acquittal, he runs away, then he will be successful in defeating

and deflecting the course of justice. After the grant of leave by the

appellate court it is for the accused to contest the appeal and to support

the order passed by the learned trial court. It is a settled legal position that

the appeal is the continuation of the trial court proceedings and order of

conviction or acquittal, if it is challenged by either the accused or the

State, will become final after the decision is given by the appellate court.

9. So far as the non-appearance of the accused persons in the appeal

preferred by the state challenging the order of their conviction after

suspension of their sentence by the Appellant Court is concerned, a recent

judgment of the Hon'ble Apex court in the case of Surya Baksh Singh

vs. State of U.P reported in, 2013(12) SCALE 492, has succinctly stated

the legal position. The situation which we are confronted with in the

present criminal leave to appeal and in various such other leave petitions

preferred by the State is that invariably in all such state appeals the State

is not able to serve the respondent mainly because the respondent is not

found at his last address or has shifted to some new address. After an

order of acquittal is passed in favour of such an accused, whether

intentionally or unintentionally, he moves out from his residence where

he lastly resided. To deal with this malady, the legislature had introduced

Section 437A Cr.P.C. on the statute book. The provision of Section 437A

Cr.P.C. is not being strictly adhered to by Subordinate Judiciary dealing

with the criminal matters as told to us by the learned Standing Counsel,

and therefore, we feel it imperative to direct the learned Metropolitan

Magistrates and the Sessions Judges, dealing with the trial of the criminal

cases or exercising the Appellate powers, to strictly comply with the

mandate of Section 437A Cr.P.C. and also require the accused and the

surety to annexe their latest passport size photographs along with their

latest residential proof at the same time. Consequently, the final judgment

passed by the learned Magistrates or Sessions Judges shall carry an

endorsement that necessary bail bond with surety, in compliance with the

order, has been furnished by the accused along with latest passport size

photographs and residential proof. The strict observance to the said

provision by the Magistrates and the Sessions Courts to a large extent

shall prevent unscrupulous persons from absconding to defeat the course

of justice.

10. Adverting back to the facts of the present case, we find that this

Court has not yet granted leave to appeal to State and the present criminal

leave to appeal is still at the service stage. Non-bailable warrants issued

against respondent No.1 remained unexecuted as he was not found at both

of his addresses, as were available in the police record. In fact, the

permanent address which he had furnished was found to be incorrect as

Village Badgaon where he is stated to be residing even does not exist.

11. The Division Bench of this Court in the case of State vs. Ram

Gopal, reported in 2006 Crl. LJ 2805, while dealing with a batch of

petitions and some of them being State appeals, was confronted with

similar issues and held as under:-

"In view of the principles enunciated in Dwarkaprasad's case and State Government, Madhya Pradesh v. Vishwanath Nadhanji and others (supra) and the judgments of the Supreme Court referred to in preceding paras, the following orders are required to be passed:

i) Crl.A. 597/1999- State Ram Gopal Crl.L.P. 54/2005 and Crl.L.P.83/2004-State v. Jai Kumar Das, where the

respondents/accused having not been served at all even with the notice for leave to appeal against the order of acquittal, the said appeal/leave to appeal cannot be heard in the absence of the respondents by appointing of an amices Curiae, the State cannot be absolved of the obligation of serving the respondents in appeal. The aforesaid appeal and leave to appeal are accordingly adjourned sine die.

ii) Crl.A.506-2003 State v. Shamshad In this case, after issuance of show cause as to why leave to appeal should not be granted even though the respondent was not reported as served, Counsel appeared on 23rd April, 2002 and entered appearance on behalf of the respondent. Subsequently, the counsel did not appear and the delay in filing of the appeal was condoned and leave to appeal was also granted. Directions were issued to the respondent to furnish bond for appearance. An application was moved on behalf of the respondent for recalling the order of grant of leave to appeal and condoning the delay. This application was dismissed. Non-bailable warrants were issued and respondent after grant of leave was not served with the notice of actual date of hearing of the appeal. This would be a case where the counsel entered appearance and took positive steps by seeking to have the order of grant of leave recalled but failed. This case thus cannot be treated at par with cases where the respondent/accused has not been served. Respondent having full knowledge of the leave to appeal, opposed the grant of leave to appeal and sought to have the order recalled. This is a case where the respondent/accused appeared in appeal proceedings and presented himself at the stage prior to and after grant of leave. He had knowledge of the appeal and is keeping himself away. The proceedings for declaring him a proclaimed offender can be resorted to and after the same, the court can appoint an amices Curiae to represent his interest and proceed with the matter based on the decision of the Supreme Court in Rambachan Hardwar v. The State of Gujarat (supra).

We, accordingly, appoint Mr.Rajesh Mahajan, Advocate as an amices Curiae and direct the appeal to be set down for hearing.

13. We direct that in cases of State seeking leave to appeal where notice to show cause as to why leave to appeal be not granted, was issued but the record had not been received, the Court may call for the records of the case and examine the same in depth even in the absence of the respondent and if it is of the view on scrutiny and study of the record that the notice needs to be discharged, it may choose to so proceed. However, where the Court is of the view that notice issued in the leave to appeal should be proceeded further, it may attempt service of the notice and if the same is not feasible, the State appeals be adjourned sine die after the respondent had been declared as the proclaimed offender and the properties, if any, be attached."

12. As would be seen from the above, while dealing with the

absenteeism of the accused, in the leave to appeal preferred by the State,

where such an accused had already appeared, the direction given was that

the proceeding for declaring such an accused as a proclaimed offender

can be resorted to and after the same, the court may appoint amicus

curiae to represent his interest and thereafter proceed with the matter. The

Division Bench also placed reliance on the decision of the Apex Court in

Ram Chand Hardwar v. State of Gujarat, reported in AIR 1974 SC 855.

13. In Ram Chand Hardwar (supra), the accused challenged the

decision of the High Court because the High Court had appointed amicus

curiae to represent the accused, as the accused had failed to appear in the

appeal even after the notice was served upon him. In that case the High

Court did not take any step to first direct the proceeding for declaring

such an accused as a proclaimed offender.

14. We are also of the view that so far as the initiation of the

proceeding for declaring accused, a proclaimed offender, is concerned,

the same can be resorted to, after the High Court accepts the state appeal

and set aside the order of acquittal and before that stage if for any reasons

the accused, after being served, fails to appear, the High Court can

proceed to appoint an amicus curiae to represent him in the appeal and

then decide the case on merits.

15. So far as the cases where leave to appeal is preferred by the State

against the order of acquittal and the court after hearing the preliminary

arguments of the state counsel and on examination of the Trial Court

record, finds that the case deserves issuance of show cause notice to the

respondent(s), it shall direct the state to make all attempts to serve notice

to the respondent(s) in terms of the address furnished by the

respondent(s) in his bail bond. Where such an appeal is preferred against

a judgment passed by the Sessions Court after the introduction of Section

437-A of the Cr.P.C. and the respondent does not cause an appearance

despite the steps taken in this regard, a notice shall also be directed by the

court to the sureties as per address disclosed by the sureties in the bond

furnished by them before the Sessions Court. In all such cases, if the

respondent is not served despite the efforts made by the State, the court

shall adjourn such appeals sine die while directing the learned Trial Court

to initiate the proceedings for declaring the respondent, a proclaimed

offender, in terms of Sections 82-83 of the Cr.P.C. Further, even after,

adjourning such appeals sine die and declaring the respondent, a

proclaimed offender, the State shall continue to make all possible efforts

to trace the respondent and shall not sit silent by the mere fact that their

job is over after such a person has been declared as a proclaimed

offender.

16. In cases where leave to appeal is preferred by the state against

judgment passed by the learned Sessions Court, prior to introduction of

Section 437-A of the Cr.P.C., the state shall make all possible efforts to

serve the respondent(s) and if despite making all possible efforts the

respondent(s) are not served then the same procedure be followed for

adjourning such State leave to appeal sine die and simultaneously

directing the proceeding to declare such an accused as a proclaimed

offender in terms of Sections 82-83 of the Cr.P.C.

17. Applying the aforesaid principles in the facts of the present case,

the present leave to appeal filed by the state is adjourned sine die as

respondent No.1 has not been appearing in this matter and proceedings

for declaring him as a proclaimed offender has already been initiated by

the learned Trial Court in another case pending against him under Section

21 of NDPS Act.

18. The State is directed to revive the present leave to appeal, at any

stage, if the state is able to apprehend respondent No.1 in the said FIR

No.380/2008 or otherwise.

19. Copy of this order be sent to all the District Judges for its

circulation to all Additional Session Judges and Metropolitan Magistrates

for necessary compliance.

KAILASH GAMBHIR, J

INDERMEET KAUR, J OCTOBER 22, 2013 v