Blog

The proceedings conducted by the concerned Court while declaring the petitioner an ‘Absconder’ shows complete non-application of mind and also the same was held in the judgement passed by a single bench judge comprising HON’BLE SRI JUSTICE MANOJ KUMAR OHRI, in the matter RAJESH EBRAHIMKUTTY MAJIDHABEEVI  V.  STATE (GOVT. OF NCT OF DELHI) & ANR, dealt with an issue mentioned above.

The petition was filed under Section 482 Cr.P.C. assailing the order dated 14.08.2018 passed by the learned Metropolitan Magistrate-04, NI Act, and also the petitioner has also sought quashing of FIR No. 338/2018 and FIR No. 231/2019. The complaint filed by respondent No. 2  in the present case was under Section 138 N.I. Act read with Sections 141 and 142 N.I. Act and Section 420 CRL.M.C. 2514/2020 Page 2 of 11 IPC being Complaint Case No. 8416/2017 against the petitioner and others.

Learned counsel for the petitioner has assailed the order declaring the petitioner as an ‘Absconder’ as well as consequent registration of the aforementioned FIR, According to the following contentions:

• Two FIRs on the same cause of action could not have been registered.
• The procedure prescribed under Section 82 Cr.P.C. was given complete goodbye.
• The proceedings conducted by the concerned Court while declaring the petitioner an ‘Absconder’ shows complete non-application of mind.

It was also submitted that the petitioner was declared Absconder after following due process of law, then the learned counsels for the parties as well as gone through the Trial Court Record. Before proceeding further, I deem it apposite to refer to Section 82 Cr.P.C.  A plain reading of sub-section (1) of Section 82 Cr.P.C. would show that publication of proclamation must be preceded by the issuance of a warrant and the satisfaction of the Court having ‘reason to believe that the person against whom warrant has been issued is absconding or concealing himself so that such warrant cannot be executed.

Briefly, it can be stated that the facts discernible from the material placed on record are that the complainant/respondent No. 2 had preferred a complaint under Section 138 N.I. Act read with Sections 141 and 142 N.I. Act impleading the petitioner as one of the Directors of the accused company, and in pursuance, the petitioner was summoned vide order dated 05.08.2017.

The matter was taken up on 04.12.2017, on which date an application was filed by the complainant thereby bringing on record the fresh address of the petitioner in Karnataka. Later it was mentioned that As per the Report of the process server, he had visited the petitioner’s given address in Kerala on 28.04.2018 and finding the house locked, made enquiries from the neighbour Vibhu Kumar, who informed him that the petitioner CRL.M.C. 2514/2020 Page 7 of 11 had sold the premises 8-10 years ago and nobody was living at the said address.

At one point in time, they deem it profitable to refer to the decision in Inder Mohan Goswami and Another v. State of Uttaranchal and Others reported as (2007) 12 SCC 1, wherein the Supreme Court cautioned the Courts to not issue bailable and non-bailable warrants without proper scrutiny. And few more cases were referred. From the foregoing, it follows that the provisions of Section 82(1) and (2) Cr.P.C. should be construed strictly. Before issuing process, a Court is required to record its satisfaction that the accused has absconded or is concealing himself to avoid execution of warrants. Later on, a specific query, learned APP for the State replied that the second FIR was inadvertently registered as the impugned order was received twice in the concerned Police Station.

The court perused the facts and argument’s presented, it thought that-“On a careful reading of the material placed on record and because of the above discussion, it is apparent that the impugned orders suffer from the vice of non-application of mind and deserve to be set aside. The declaration of the petitioner as an ‘absconder’, as well as attachment of his properties, was neither fit in the facts and circumstances of the case nor was it following the law. Accordingly, the impugned orders passed in proceedings under Sections 82/83 Cr.P.C. against the present petitioner are set aside. As a necessary consequence, the proceedings initiated in consequence of the impugned order dated 14.08.2018, i.e., FIR No. 338/2018 and FIR No. 231/2019 registered under Section 174A IPC at Police Station Hauz Khas, Delhi are also quashed. The petition is allowed. The petitioner’s undertaking to the effect that he shall regularly appear before the Trial Court is taken on record”.

Click here for judgment

Judgment Reviewed by: Mandira BS