Delhi High Court
Rakesh Mohan Sharma & Anr. vs State (Govt Of Nct Of Delhi) & Ors on 18 September, 2018
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 18th September, 2018
+ CRL.M.C. 907/2015 & CRL.M.A. 3408/2015 (stay)
RAKESH MOHAN SHARMA & ANR. ..... Petitioners
Through: Mr. Rajiv K. Garg, Advocate
with Mr. Ashish Garg,
Advocate along with Petitioners
in person.
versus
STATE (GOVT OF NCT OF DELHI) & ORS...... Respondents
Through: Mr. Amit Ahlawat, APP for the
State
Mr. Shaju Francis, Adv. with
Mr. Abhishek Soni, Adv. for
R-2 & R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The case at hand might possibly go down in the legal history as
an illustration of how the judicial process can be defeated as long as
one wants if those responsible fail to exercise control. The
proceedings in a criminal case arising out of first information report
(FIR) No.774/2000, registered by Police Station Connaught Place,
involving offences allegedly committed under Sections
409/420/506/34 of the Indian Penal Code, 1860 (IPC), in which report
(charge-sheet) under Section 173 of the Code of Criminal Procedure,
1973 (Cr.P.C.) were instituted way back on 14.11.2003 and have been
successfully kept stalled for almost fifteen years with not a single
effective step taken.
2. The petition at hand invoking the jurisdiction of this court under
Section 482 Cr.P.C. with the prayer for quashing of the criminal case
was brought on 09.03.2015 on the basis of some terms settled with the
complainants' side but has remained pending now for over 3½ years,
the pendency of these proceedings and some of the orders passed
therein having also been misused to keep the Metropolitan Magistrate
at bay from making any progress. Unfortunately, all agencies
involved including the prosecution, the defence and the judicial
apparatus have aided and assisted in the design of the petitioners to
keep the cliched long arm of the law away for the last eighteen years
after the offences were allegedly committed.
3. The above can be demonstrated by taking note of how the case
before the trial court proceeded.
4. As mentioned above, the charge sheet was filed on 14.11.2003.
The petitioners are the two persons who had been sent up for trial for
allegedly committing the aforementioned offences. The second
petitioner is the sister of the first petitioner. On 08.04.2004, a counsel
appeared on their behalf and took exemption for their personal
appearance. The matter was adjourned to 19.07.2004. On 19.07.2004,
none appeared and so the trial magistrate issued non-bailable warrant
(NBW) with notices to sureties under Section 446 Cr.P.C. for
27.04.2005. On 04.09.2004, the first petitioner moved application for
cancellation of NBW which was granted, subject to payment of
Rs.100/- as penalty. Since both petitioners have been together in
contest, including by the petition before this court, it has to be
assumed that the second petitioner would be privy to the duress
process that had been issued by order dated 19.07.2004. Yet, no
immediate move on her behalf was made.
5. On 27.04.2005, both petitioners appeared together with a
counsel. The application of second petitioner for cancellation of
NBWs was also considered and granted, both being released on bail.
On 15.10.2005, the first petitioner again took exemption and the
matter again was adjourned. On 13.12.2005, it was the turn of the
second petitioner to seek exemption. The matter again stood
adjourned. On 22.03.2006, once again exemption was taken for the
second petitioner. It was stated before the magistrate that the dispute
had been compromised with "all the investors" and payments had
been made to them. Adjournment was taken to move for
"compounding". On 28.07.2006, the magistrate granted exemption to
the second petitioner and noted that the petitioners intended to move
this court for getting the FIR quashed. The case was adjourned to
27.10.2006 for consideration of the issue of charge. On 27.10.2006,
exemption was taken and matter was again adjourned. On 24.01.2007,
exemption was again granted and matter adjourned for the same
purpose.
6. The above continued till 12.07.2007, when the petitioners were
again absent, leading to NBWs being issued against them, which were
cancelled by a very cryptic order on 04.08.2007. Yet, on the very next
date, i.e., 29.10.2007, the first petitioner was again absent leading to
fresh NBWs being issued against both the petitioners with notices to
their sureties. These duress processes were cancelled by order dated
14.11.2007, subject to penalty of Rs.500/- each.
7. The matter was again at the stage of charge when on
20.02.2008, exemption was again sought and readily granted, the case
being adjourned for three months thereafter. On 21.05.2008 again
exemption was taken and the matter again adjourned. On 31.07.2008,
the petitioners informed the court again that the matter had been
"settled" amicably with the complainants'. Time was sought for
petition to be filed for "quashing". Neither any details were given nor
the magistrate was interested, nor it was recorded as to what were the
settlement terms and why no petition had been filed till then. The fact
remains that no petition for quashing was filed around that time.
8. The case before the magistrate continued to linger on. On
03.02.2009, again exemption was taken and the matter adjourned for
"further proceedings". Five months thereafter on 07.07.2009, the
petitioners mercifully were present but their counsel was not available
and so there was another occasion for three months' adjournment
being granted.
9. In a case of 2000 in which charge-sheet had been filed in 2003
there seemed to be no hurry on anybody's part. On 06.10.2009, again
there was absence on the part of the petitioners. This time, the
magistrate was not satisfied with the reasons for exemption. He issued
bailable warrants against the petitioners with notices to their sureties.
On 14.01.2010, they did appear in person but no effective proceedings
took place. This continued till 06.01.2011 when, again on account of
absence, NBWs were issued against the petitioners with notices to
their sureties. The processes had not returned on 22.02.2011 and, thus,
were renewed for 30.03.2011. On the said date, the first petitioner
appeared and NBW against him was cancelled, subject to penalty of
Rs.400/-. Exemption request on behalf of second petitioner was
declined because of her continued absence. But, on 16.05.2011, two
months thereafter she did appear and NBW was again cancelled with
penalty of Rs.500/-.
10. At this stage, the counsel for petitioners rose up to point out that
arguments on the question of charge were heard on 16.05.2011, but
the same had remained inconclusive. This is of no solace since the
matter was adjourned for the same purpose to 29.06.2011 when the
petitioners again chose to remain absent, leading to fresh NBWs being
issued. Later, on the same date, the first petitioner did appear and
NBWs were suspended till the next date. On 05.08.2011, NBW
against first petitioner was cancelled with "warning" for him to be
"careful in future". The second petitioner was still absent and NBW
was renewed against her. On 03.10.2011, both the petitioners were
again absent. Exemption was sought and granted, subject to costs of
Rs. 500/- on behalf of the first petitioner. NBW against second
petitioner was cancelled on 15.11.2011, subject to costs of Rs.200/-.
On 16.02.2012, second petitioner again took exemption, and the case
was yet again adjourned for consideration of the question of charge to
26.04.2012. Similar move for exemption on 26.04.2012 again was
successful in evading the hearing and leading to matter being
adjourned to 25.07.2012.
11. On the last said date, the petitioners were once again absent, and
fresh NBWs were issued, the NBW against the first petitioner being
cancelled on his appearance later and, at his request, NBW against
second petitioner being stayed till next date, caution to be careful in
future being again reiterated.
12. The drama continued on 26.09.2012 when both the petitioners
were again absent. Their counsel moved application for exemption
which was granted to the first petitioner, but declined in the case of
second petitioner, though execution of duress process was stayed. This
did not have any effect since on 18.12.2012 again the petitioners were
absent and fresh NBWs were issued. On 28.02.2013, application for
cancellation was moved. The NBWs against first petitioner were
cancelled on costs of Rs.500/- and the NBWs against second petitioner
were stayed, she being still absent. Similar proceedings were recorded
on next date, i.e., 17.05.2013 and, yet again, on 05.08.2013, costs of
Rs.300/- being imposed. Yet, on 23.10.2013 there was again absence.
NBWs against second petitioner were renewed and exemption to first
petitioner was granted for that date. Similar proceedings took place
again on 06.01.2014, and on 27.03.2014.
13. On 26.05.2014, both the petitioners were finally present
together and NBW against second petitioner was stayed, the matter
being adjourned to 26.08.2014. On 26.08.2014, on account of absence
of second petitioner, another round of NBW and notice to her surety
started.
14. On 21.10.2014, the magistrate eventually felt constrained to
record that the process was being evaded and, thus, issued
proclamation under Section 82 Cr.P.C. against the second petitioner.
The proclamation was returned published on 06.01.2015 and the
matter was adjourned for recording of the statement of the process
server. On 04.03.2015, the statement of the process server was
recorded. It was, however, noted that there was another address of the
second petitioner. Therefore, duress process directed at the said
address was issued for 08.05.2015.
15. As noted earlier, by this time the petition before this court had
been brought on 09.03.2015. By order dated 01.05.2015, the second
petitioner was permitted by a learned judge of this court to appear
before the trial court "through counsel" and to file an application for
her exemption from personal appearance. It is not clear as to whether
or not the above noted evasive conduct of the said petitioner in the
earlier proceedings had been brought to the notice of the court at that
stage.
16. Be that as it may, the evasion before the trial court continued
even after the present petition had been brought. While on one hand
the proceedings in this petition were adjourned from time to time, the
proceedings before the trial court were evaded. After protection of
this court had been taken by order on 23.11.2015, there was total
absence before the trial court. Neither the petitioners would appear
nor their counsel would assist by appearing or making any
submissions.
17. The magistrate was constrained to issue fresh NBWs against the
petitioners with notices to their sureties. On 17.09.2015, a learned
judge of this court, on fresh application moved directed the NBWs to
be kept in suspension. Against this backdrop, on fresh application
being moved, the NBWs against the first petitioner were cancelled by
the magistrate on 22.12.2015. Exemption for second petitioner was
granted on subsequent dates, one after the other.
18. Noticeably, from 16.05.2016 onwards, adjournments were taken
before the magistrate on the ground that the petition at hand seeking
quashing of the proceedings on settlement was pending, this even
while it was submitted before this court on 19.10.2016 that the second
and third respondents, on whose consent the quashing request
depended, were not coming forward to co-operate in terms of the
proceedings recorded in the corresponding civil case - FAO
No.120/2002. The case before the trial court came to a complete halt
with the order dated 16.08.2017 of a learned single judge of this court
in these proceedings staying the further proceedings in the criminal
case, till 08.03.2018, the said order having thereafter continued to
operate.
19. It is clear from the above chronology that the petitioners have
virtually mocked at the system with impurity. They have demonstrated
how the judicial process can be rendered toothless and meaningless, if
such evasive conduct, as noted above, is adopted. The counsel for the
private party respondents have submitted through counsel that the
petitioners have not been true to their word in abiding by the terms on
which there had been an understanding for the dispute to be settled as
had formed the basis of the order in the civil case and, therefore, they
are not willing to concede to the request for quashing on its basis.
20. The casual and callous manner in which the trial court has
proceeded with the criminal case cannot be approved of or
countenanced. Effective control over the proceeding will have to be
exercised. There is always a need for expedition. Easy grant of
adjournments, just for the asking, by cryptic orders only leads to the
initiative going out of the hands of the presiding judge. It is nothing
but abdication of duties and responsibilities of the court.
21. In the above facts and circumstances, there can be no occasion
or reason for this court to exercise its inherent power under Section
482 Cr.P.C. to bring an end to the criminal process.
22. Having regard to the conduct of the petitioners, the petition at
hand is dismissed with costs of Rs.2,00,000/- (Rupees Two Lakh
Only) to be deposited with concerned District Legal Services
Authority within two weeks, vacating all the interim orders, with
following further directions:-
(i) The petitioners shall be obliged and duty bound to appear
in person with counsel of their choice, duly briefed and
instructed, ready to assist on each and every date of
hearing before the concerned criminal court;
(ii) No further indulgence or request(s) for exemption from
personal appearance or for adjournment(s) shall be
entertained or granted;
(iii) In case the process is again evaded, the Metropolitan
Magistrate will pass effective orders and issue necessary
process to compel and secure the presence, and in case
such request(s), as above for cancellation of duress
process(es) are made, the same shall be considered, inter
alia, in light of the previous conduct;
(iv) The proceedings in the criminal court will hereafter be
taken up on day-to-day basis, the question of charge to be
considered first and, in case charge is found made out, for
the further proceedings as per law to be conducted with a
sense of expedition; and
(v) The costs as imposed above, if not deposited within the
specified above, shall be recoverable as fine by necessary
process to be initiated by the magistrate.
23. The way the criminal case referred to above has been handled
by various judicial officers presiding over the court of Metropolitan
Magistrate over the years provides a model that cannot be allowed to
be emulated. The society at large reposes trust in the judicial organ
and it must never fail to discharge the responsibilities arising out of
such trust, howsoever difficult, challenging or onerous they may be.
The court cannot lose control over the initiative. As said before,
adjournment cannot be granted for the asking. The judicial process
has to be expeditious. The criminal court must take the process to
logical end with absolutely no undue indulgence for one side at the
cost of other, lest it is reduced to a charade or farce. A copy of this
order shall be sent to Delhi Judicial Academy for suitable advice and
instructions to the judicial officers through its various training
programs.
24. The petition and the applications filed therewith stand disposed
of in above terms.
25. Trial court record shall be returned forthwith with copy of the
order.
R.K.GAUBA, J.
SEPTEMBER 18, 2018
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