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High Court Of Delhi|03 July, 2012


V.K. SHALI, J. (Oral)
1. This is a petition filed by the petitioner under Section 482 Cr.P.C. assailing the order dated 22.5.12 passed by Sh.S.C.Rajan, Additional Sessions Judge, Dwarka Courts in Crl.Rev. No.98/12.
2. Briefly stated the facts of the case are that the petitioner is an accused in case titled State Vs. Mukesh Rai & Ors. which was registered vide FIR no.46/11, u/S 302/365/201/404/419/420/468/120B/34 IPC of PS Palam Village.
3. The allegations against the petitioner and the other co- accused persons were that they had kidnapped a lady who was later on killed. However, on her behalf, some other lady was presented before the office of the Sub- Registrar and the property purportedly belonging to the said lady, was transferred in favour of some third party in furtherance of criminal conspiracy. There are allegations of forging a document, using forged document as genuine, cheating, destruction of evidence, kidnapping and murder. The matter was investigated and a charge sheet was filed against accused persons, however, at the time of filing of the first charge sheet, the petitioner was evading his arrest and consequently, proceedings under Section 82/83 Cr.P.C. were initiated against him.
4. The learned Magistrate declared the present petitioner as proclaimed offender on 13.10.2011.
5. On 12.1.2012, the present petitioner was arrested by Head Constable Naresh Kumar of P.S. Greater Kailash in pursuance to the powers under Section 41(1) (c) of Cr.P.C. and he was remanded to judicial custody on 13.1.12 when he was produced before the learned Magistrate. Necessary intimation was given to the concerned police station where FIR no.46/11 was registered, whereupon after completing the formalities, appropriate application before the learned Magistrate was filed on 16.1.12 seeking permission to formally arrest the present petitioner in the case pertaining to kidnapping, murder, cheating and using forged document as genuine. The IO obtained police remand and on 20.1.12, the accused was remanded to judicial custody again. On 11.4.12, the petitioner filed an application u/S 167(2) (a)(i) of Cr.P.C. seeking statutory bail on the ground that he had been in custody for 90 days from the date of his arrest on 12.1.12 and therefore, he be enlarged on bail.
6. The learned Magistrate dismissed the said application on 16.4.12 by observing that so far as the arrest of the accused on 12.1.12 is concerned, it was in connection with an offence u/S 174(A) IPC, which is an independent offence of being a proclaimed offender. As regards, the arrest of the petitioner in the present case, the date was taken as 16.1.12, when he was formally shown to have been arrested and therefore, the learned Magistrate came to the finding that the period of limitation of 90 days reckoned from the date of formal arrest i.e. 16.1.12 and the same had not elapsed as the supplementary charge sheet was filed within 90 days.
7. The petitioner filed the revision petition before the Court of Sessions and relied upon case titled CBI Vs. Anupam J Kulkarni AIR 1992 SC 1768 and State of Maharashtra Vs. Bharti Chandmal Varma @ Ayesh Khan AIR 2002 SC
285 to contend that the period of limitation of 90 days is to be taken from the date of his first arrest or at best from 13.1.12 and not from the date 16.1.12 when he was formally arrested in the instant case.
8. This plea of the petitioner was dealt with by the learned Sessions Judge in extenso and the revision petition was rejected by observing as under:-
“19) In the present case the accused/revisionist was initially arrested on 12.1.2012 u/s 41.1 Cr.P.C. and was remanded to JC on 13.1.2012. The information to IO of the present case was also sent on 13.1.2012 who appeared before the court on 16.1.2012 and arrested the revisionist in this case after due permission from the court in FIR no.46/11 of PS Palam Village and on the same day PC remand for four days was taken. Challan was filed on 12.4.2012 and application u/s 167(2) Cr.P.C. was filed on 11.4.2012. Firstly, the accused/revisionist was arrested u/s 41.1 Cr.PC on 12.1.2012 as he was declared proclaimed offender by the court of Ld. MM after initiating the proceedings u/s 82/83 Cr.PC which is punishable u/s 174A IPC. Thereafter, IO was informed and present petitioner was arrested by the IO in case FIR no.46/11 on 16.1.2012. Even the first PC remand was also taken on 16.1.2012. Case Law 2012(1) RCR (Criminal) 303 titled Pragyna Singh Thakur Vs. State of Maharashtra is clear on this aspect that the period of 90 days for filing chargesheet is date of first order of remand and not date of arrest. Taking 16th Jan as first police remand day, total days comes out as 86 days from the date of arrest of the accused/applicant.
20) Ld. Counsel for the revisionist contended that the period should be counted from 13th Jan. as on that day revisionist was produced before the Ld.
MM. Even if I take these arguments of the Ld. Counsel into consideration and after taking the help of case law State of MP Vs. Rustam (1995) 3 (Supp) SCC 221:1995 SCC (Cri) 830, wherein it has been stated that the day on which the accused was remanded to JC is to be excluded and the day on which the charge sheet is filed is also to be excluded to determine the period from the date of apprehension, it is quite clear that period is to be counted from 14th Jan. and thereby totaling 18 days of Jan., 29 days of Feb, 31 days of March and 11 days of April thereby totaling to 899 days.
21) I have perused the order passed by the Ld. MM dated 16.4.2012. Ld. MM cannot remand an accused to custody for a period of more than 90 days in total. Accordingly, 90 days would start running from the date of first remand. In view of my above discussions the charge sheet has been filed within 90 days from the date of first order of remand. Therefore, revisionist is not entitled to default bail. There is no illegality, infirmity or impropriety in the order dated 16.4.2012 passed by the Ld. MM.
22) In view of my above discussions and material available on file, the order dated 16.4.2012 passed by the Ld. MM is maintained and the present revision petition is hereby dismissed.”
9. I have heard the learned counsel for the petitioner. The two judgments cited before the Court of Sessions i.e. Anupam J. Kulkarni’s case and Bharti Chandmal Varma’s case (supra) have been relied upon before this Court also.
10. The learned counsel has not been able to explain as to how he overcomes the bar under Section 397 (3) of the Cr.P.C. which reads as under:-
“397. Calling for records to exercise powers of revision.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”
11. A perusal of the aforesaid Section would show that a party who has availed of the remedy of revision once in the Sessions Court cannot be permitted to file the second revision petition in the High Court even under the garb of petition under Section 482 Cr.P.C.
12. In my considered opinion, by filing the present petition under the garb of Section 482 Cr.P.C., the petitioner is only trying to circumvent the provision of Section 397 (3) Cr.P.C. as it tantamounts to a second revision. I am cognizant of the fact that the language of Section 482 starts with non obstante clause and despite a party having exercised his right of revision, still the Court may in exercise of its powers under Section 482 Cr.P.C. in appropriate cases, pass orders in the interest of justice or to prevent the abuse of the processes of law.
13. I do not find that in the instant case, the facts are such which warrant passing of an order in the interest of justice or that there is any gross abuse of the processes of law. This is on account of the fact that the allegations against the petitioner are very serious in nature. There are allegations of conspiracy of kidnapping a woman, liquidating her and presenting other lady as impersonator on behalf of the deceased and getting her property registered in the Sub-Registrar’s office. Despite such serious allegations having been levelled against him, the petitioner tried to evade the processes of law by avoiding his arrest and not permitting the prosecution to do its job. So much so, that he had to be declared as a proclaimed offender and it was only by chance that he was arrested on 12.1.12. Any person who seeks invocation of the extraordinary powers of the High Court must also show that he is a person who has an immense faith in the processes of law, conversely a person who does not have faith in law or tries to evade from the processes of law does not deserve any sympathy or any assistance by the Court.
14. In addition to this, the supplementary charge sheet, as on date, stands already filed and this is in my view only an exercise by the petitioner to come out from the jail by taking advantage of the technicalities, rather than, showing on merits that his involvement in the said case is not there. Merely because this Court is a superior Court and may hold a different view than the one which has been held by the Court of Sessions does not mean that this Court should exercise its discretion and entertain a petition of this nature.
15. I accordingly feel that this petition u/S 482 Cr.P.C. essentially tantamount to a second revision filed by the petitioner which cannot be permitted to be done. Hence, the petition is dismissed.
3rd July, 2012 RN V.K. SHALI, J.
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High Court Of Delhi

03 July, 2012
  • Shali