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Proclaimed Offender Declaration Under Section 82(4) CrPC Cannot Be Made Against Person Accused Of Sections 406, 420 IPC: Delhi HC

 

It has to be mentioned before mentioning anything else that in a fresh, welcome and worth mentioning development, the Delhi High Court just recently on 26 March 2021 in a latest, learned, laudable and landmark judgment titled Arun Kumar Parihar vs State (Govt NCTD) in Crl.M.C.No. 863/2021 has minced just no words to hold that a person accused of offences under Section 406 (criminal breach of trust), 420 (cheating) and 120B (criminal conspiracy) under the Indian Penal Code (IPC)  cannot be declared as a ‘proclaimed offender’ under Section 82(4) of the Code of Criminal Procedure. The Single Judge Bench of Justice Anu Malhotra of Delhi High Court held that such a declaration can be made only against persons accused of the offence specified under Section 82(4) which are Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC. It must be mentioned here that since Sections 406, 420 and 120B of the IPC are not mentioned in Section 82(4), the Delhi High Court quashed the order issued by the trial court for issuing process against the petitioner under Section 82 in the case Arun Kumar Parihar v State (Govt NCTD).

To start with, it is first and foremost stated in para 1 by a single Judge Bench of Justice Anu Malhotra of Delhi High Court that, “The petitioner vide the present petition seeks the quashing of the order dated 05.01.2021 as well as the non-bailable warrants issued against him vide order dated 05.01.2021 by the Court of the learned CMM, PHC in FIR No.147/2020, PS EOW, under Sections 406/420/120B of the Indian Penal Code, 1860, whilst seeking quashing of order dated 02.03.2021, vide which the prayer made by the petitioner herein before the learned trial Court seeking cancellation of non-bailable warrants issued vide order dated 05.01.2021 was declined. The petitioner has also sought the quashing of an order dated 03.03.2021 of the learned CMM, PHC along with the process under Section 82 of the Cr.PC, 1973 issued against the petitioner in the said FIR by the learned trial Court.”

While elaborating on the prayer made by the petitioner, it is then observed in para 2 that, “At the outset, it is essential to observe that as regards the prayer made by the petitioner seeking quashing of the proceedings initiated vide order dated 03.03.2021, under Section 82 of the Cr.PC, 1973 in as much as the FIR in the instant case is registered under Sections 406/420/120B of the Indian Penal Code, 1860, the said provisions of law sought to be invoked by the Investigating Agency do not fall within the ambit of Section 82(4) of the Cr.PC, 1973 and thus the applicant cannot be declared a Proclaimed Offender thereunder in view of the verdict of this Court in in Manoj Tandon Vs. State in Crl.M.C.1961/2020, dated 25.11.2020 whereby there is a reference made to the verdict of this Court in Sanjay Bhandari vs. State in Crl.Rev.Pet.No.223/2018, a verdict dated 31.07.2018, the verdict of the Hon’ble High Court of Rajasthan in Rishabh Sethi vs. State of Rajasthan and Ors. in Petition No.5767/2017.”

As a corollary, it is then stated in para 3 that, “In view thereof, the order dated 03.03.2021 of the learned trial Court directing the issuance of process under Section 82 of the Cr.PC, 1973 against the petitioner in FIR No.147/2020, PS EOW, under Sections 406/420/120B of the Indian Penal Code, 1860 is quashed.”

While elaborating on the petitioner’s submissions, it is then envisaged in para 4 that, “The petitioner vide the present petition has submitted that the FIR in question is maliciously instituted with motivated reasons to extort the petitioner though the matter relates to a civil commercial dispute and that arbitration proceedings in relation to the dispute are also pending. The FIR in the instant case has been lodged on the complaint of Mr. Anuj Tyagi, Authorized Representative of M/s Saya Cementation Ltd. wherein the complainant stated that Mr. Amit Mavi, Director of M/s Alisha Infratech Pvt. Ltd. and M/s Baya Weaver Ltd. had informed them that he was developing a project in Sector-129, Jaypee Greens Wish Town, Noida, UP in the name and style of ‘Oh My God’ but that he had been unable to complete the project which had been launched in the year 2013 and that till that time not more than 5% of the work including the structure had been done at the site and thus Mr. Amit Mavi proposed to transfer the shareholding of these two companies to the complainant company. A sum of Rs.350 crores was taken by the complainant as a loan from India Infoline Finance Ltd. (IIFL) and the Share Purchase Agreement dated 30.03.2020 was executed between the complainant and the accused for a total consideration of Rs.3.13 crores and the demand drafts of Rs.11.58 crores towards settlement of various litigations against Amit Mavi.”

As we see, it is then enunciated in para 10 that, “It was thus submitted on behalf of the State through the status report as also orally submitted that the reply received from the petitioner had vague answers and he did not disclose anything about siphoning of funds to the tune of Rs.9 crores and thus his custodial interrogation was required to unveil the conspiracy hatched by them in siphoning of funds which were exclusively paid for making clients payments and that on 23.12.2020, his office was raided, which was found to be already vacated by the accused persons whereafter his house in Ghaziabad was raided where the mother of Arun Kumar was there who informed that the petitioner had gone out with his family and she however refused to disclose any whereabouts of the petitioner and that the petitioner had absconded and thereafter on 05.01.2021, non-bailable warrants against the petitioner and two others were obtained and raids were conducted to arrest them whereafter, the proclamation under Section 82 of the Cr.PC, 1973 was issued by the learned CMM, returnable for 15.04.2021.”

Be it noted, it is then stipulated in para 11 that, “Apparently, the status report submitted by the State dated 16.03.2021 under signatures of Mr. Nageen Kaushik, ACP, EOW, Delhi indicates clearly that the applicant had joined the investigation on 29.10.2020 and that too at Delhi. Merely because he is alleged to have evaded queries put by the Investigating Agency, it cannot be claimed by the State that the petitioner was evading the process of law as rightly contended on behalf of the petitioner.”

Of course, it must be mentioned here that it is then put forth in para 13 that, “Reliance was placed on behalf of the petitioner on the verdict of the Hon’ble Supreme Court in Inder Mohan Goswami and Ors. Vs. State of Uttaranchal and Ors. in Crl.A.1392/2007, a verdict dated 09.10.2007 to contend to the effect that personal liberty is paramount and that the issuance of a warrant whether bailable or non-bailable is entirely in the discretion of the Court nevertheless that discretion has to be exercised with care in as much as the issuance of non-bailable warrants involves interference with personal liberty and the Courts have to be extremely careful before issuing non-bailable warrants which can be issued to bring a person to Court when summons or bailable warrants are unlikely to have the desired result and can be issued when

• it is reasonable to believe that the person will not voluntarily appear in court; or

• the police authorities are unable to find the person to serve him with a summon; or

• it is considered that the person could harm someone if not placed into custody immediately.”

Briefly stated, it is also worth mentioning here that it is then mentioned in para 15 that, “Reliance was also placed on behalf of the petitioner on the verdict of the Hon’ble Supreme Court in State through C.B.I. Vs. Dawood Ibrahim Kaskar and Ors., a verdict dated 07.05.1997 with reliance placed on paras 13 to 26 of the said verdict,  to contend to the effect that a warrant of arrest under Section 73 of the Cr.PC,1973 cannot be issued by the Courts solely for the production of the accused before the police in aid of investigation.”

While mentioning another relevant case law, it is then postulated in para 16 that, “Reliance was also placed on the verdict of the High Court of Punjab and Haryana in Gurjeet Singh Johar Vs. State of Punjab and Haryana in CRM-M No.47872/2019 (O&M), a verdict dated 08.11.2019 with specific reference to observations in paras 13 to 17 thereof, which read to the effect:

“13. Still further, in case of judgment in the case of Dawood Ibrahim Kaskar (supra), the Supreme Court has dealt with the language of Section 73 of Cr.P.C., and has explained the situation in which the Magistrate can issue warrant of arrest. As observed above, although the bare language of the Section, read as it is, requires as a precondition; for the issuance of warrants by the Magistrate, only this much, that the person is evading the arrest, however, even this has been interpreted by the Supreme Court. It has been held by the Supreme Court that to arrest such a person, who is evading arrest, the Magistrate has to exercise his discretion, in judicial manner and the Magistrate cannot issue warrants of arrest only for the purpose of the arrest, and for the aid and assistance to the police officer.

14. This court also finds that more often then not, the police use the power of the Magistrate to issue warrant of arrest against an accused, only as a tool to avoid its responsibility to carry out the investigation to the logical end; and only for the purpose of getting such an accused declared as proclaimed offender. This methodology is normally adopted by the police just to get rid of the responsibility of putting a report before the Magistrate qua investigation, which otherwise is a mandate of law cast upon the police, or even to avoid arresting an accused in inconvenient cases or inconvenient circumstances. As a result, lots of persons are got declared as proclaimed offenders; and forgotten altogether by the police thereafter. Hence, as observed above, this court is also of the view that before the Magistrate/court has taken cognizance of any offence, the power of issuance of warrants of arrest under any provision of Cr.P.C., on an application of a police officer, cannot be invoked by the Magistrate as a routine matter. Needless to say, at the cost of repetition; that under the provisions of Cr. P. C. itself, the police have power to arrest a person without warrant even by following such a person at any place in India. Therefore, it is clear that only for arresting a person; the police do not require any warrant as such. Hence, it would not lie in the mouth of the police to allege before the Magistrate, without there being any specific reasons or any barrier in their way, that the accused is evading arrest. During investigation; even if there is some specific legal or factual obstacle or barrier, which makes the arrest without warrant impossible, and if the police intend to seek warrant of arrest from the Magistrate for such arrest, under any provision of the Cr.P.C., the police are required to specify the obstacle, which the warrant issued by the court would remove and because of which such obstacle or the barrier in way of the police; the accused was succeeding in evading his arrest. Unless, there is any specific obstacle; because of which the police were not able to arrest; and which could not be removed by the police on their own and without the aid of the warrant of the court, the issuance of warrant of arrest by the Magistrate, only on assertion of the police that the accused was evading arrest, would be only a routine exercise, and would be only for the aid of the investigating officer, which could not be done by the Magistrate, as has been held by the Supreme Court in the case of Dawood Ibrahim Kaskar (supra).

15. Coming to the facts of the present case, undisputedly, the petitioner has not been arrested by the police despite having power to arrest him without warrant. Therefore, there is nothing on record of the present petition; showing whether the investigating officer was ever satisfied qua the requirement of the petitioner to be arrested or not. This court is presented with only an application moved by the police officer before the Magistrate; seeking issuance of warrant against the petitioner. The said application is silent qua any reason, which requires assistance from the court for arresting the petitioner. The application does not specify whatever obstacles, which were preventing the investigating officer from arresting the accused/petitioner without the aid of the warrant. Not only this, no reason, whatsoever, has been spelt out in the application, even qua the requirements of arrest as mentioned in Section 41 Cr.P.C, to justify arrest of the petitioner, except to say that the petitioner is evading arrest. It is upon this application that the impugned warrants of arrest have been issued against the petitioner.

16. By perusing the warrants issued by the Magistrate also, it is quite clear that the Magistrate has issued the warrant only to enlarge the effort of the police qua its investigation; as the reason for issuing warrant of arrest. The only other reason mentioned is that there is no stay of arrest qua the petitioner by any other court. Although the Magistrate may not be required to record any detailed reasons as such for issuing warrants, however, this court is of the view that none of these reasons given in this case is germane to the provisions under which the Magistrate is required to exercise his powers to issue warrants of arrest. There is nothing, either in the order passed by the Magistrate, from which it can be discernible that the Magistrate had some reasons or material to justify the discretion exercised by him.

17. Accordingly, this court finds that impugned warrants issued by the Magistrate cannot be sustained. Hence, the present petition is partly allowed. The impugned warrants of arrest and consequent orders impugned in the present petition are quashed.”

to contend to similar effect that the issuance of warrants by the Magistrate to enlarge the effort of the police qua its investigation cannot be resorted to.”

Adding more to it, the Single-Judge Bench then elucidates in para 17 stating that, “Reliance was also placed on behalf of the petitioner on the verdict of this Court in Prem Cashew Industries and Ors. Vs. Zen Pareo in Crl.Rev.Pet. 55/1999, a verdict dated 22.09.2000 to contend to the effect that non-bailable warrants ought not to have been issued by the learned trial Court vide the impugned order dated 05.01.2021.”

Going ahead, it is then also pointed out in para 18 that, “Reliance was also placed on behalf of the petitioner on the verdict of the Hon’ble Supreme Court in Vikas Vs. State of Rajasthan, in Crl.A.1190/2013, a verdict dated 16.08.2013 also to contend to the effect that at the first instance, the Court should issue summon or bailable warrants failing which, a non-bailable warrants be issued.”

Ostensibly, it is then mentioned in para 19 that, “On behalf of the State it was submitted by the learned APP for the State that the petitioner as per contents of the application dated 05.01.2021 of the Inspector Amit Choudhary, Sec-V/EOW was absconding and thus non-bailable warrants were required.”

What’s more, it is then stated in para 20 that, “As submitted by the petitioner, a notice had been sent to the petitioner under Section 41A of the Cr.PC, 1973 dated 22.10.2020 and he joined the investigation at EOW on 29.10.2020.”

Needless to state, it deserves mentioning here that it is then pointed out in para 21 that, “Rather, the status report that has been submitted by the State vide para 8 thereof states categorically that the petitioner, the Director of the accused companies M/s Alisha Infratech Pvt. Ltd. and M/s Baya Weaver Ltd. had been examined wherein he had stated that Mr. Amit Mavi was the Chairman of the company which had carried out the complete deal with the complainant company and Mr. Arun Kumar, the present petitioner had evaded other queries raised during the investigation and stated that he would submit the detailed reply in due course and a consolidated reply would also be submitted by Mr. Amit Mavi on behalf of all directors, whereafter on 03.11.2020, unsigned replies from Mr. Arun Kuma and Mr. Amit Mavi were received and thus it becomes apparent from the response to the queries raised by the Investigating Agency as depicted in the table submitted through the status report as adverted to hereinabove itself make it apparent that the petitioner had joined the investigation and was not absconding and that the petitioner according to the Investigating Agency did not give the requisite desired answers to the Investigating Agency, which can be no ground per se for issuance of non-bailable warrants against the applicant in as much as every accused is entitled to the right to silence to prevent self-incrimination in terms of Article 20(3) of the Constitution of India.”

As a corollary, it is then held in para 22 that, “In view thereof, the present petition is allowed and the non-bailable warrants ordered against the petitioner vide order dated 05.01.2021 by the Court of the learned CMM, PHC as well as the order dated 02.03.2021 declining the prayer of the applicant seeking cancellation of non-bailable warrants of the learned CMM, PHC in FIR No.147/2020, PS EOW, under Sections 406/420/120B of the Indian Penal Code, 1860 are set aside.”

In a nutshell, this notable judgment thus makes it abundantly clear that ‘proclaimed offender’ declaration under Section 82(4) CrPC cannot be made against person accused of Sections 406, 420 IPC. To reach this ineluctable conclusion, the Single Judge Bench of Justice Anu Malhotra very rightly referred to the precedents in Manoj Tandon Vs State (Delhi HC decision in Crl.M.C. 1961/2020, dated 25.11.2020), Sanjay Bhandari vs State (Delhi HC decision in Crl.Rev.Pet.No.223/2018, dated 31.07.2018) and Rishabh Sethi vs State of Rajasthan and Ors (Rajasthan HC decision in Petition No.5767/2017). There can be certainly no denying it!

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