[1.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused to quash and set aside the impugned order dated 07.03.2011 passed below Exh.16 in Special Case No.28 of 2011 by which the learned trial Court has rejected the said application preferred by the applicant – original accused and refused to discharge the applicant on the ground that the applicant has absconded for more than 3 to 4 years and considering the provisions of Section 470(4)(b) of the CrPC, is not entitled to benefit under Section 467 of the CrPC. [2.0] That a complaint came to be filed against the applicant – original accused on 20.09.2006 for the offences alleged to have happened on 0910.05.2006. That the applicant came to be charge sheeted on 25.12.2009. That according to the applicant, as the trial Court took cognizance of offence after a period of three years, he submitted the application for discharge for getting the benefit under Section 468 of the CrPC. The said application was opposed by the prosecution by submitting that as such as the applicant had absconded for all these years, the Court could not take cognizance and as soon as he was arrested, the Court took the cognizance and therefore, the applicant cannot get the benefit under Section 467/468 of the CrPC. Considering the fact that the applicant had absconded for more than three years and was arrested on 07.11.2009 and thereafter, the investigation was concluded and the chargesheet came to be filed in the Court of learned Chief Judicial Magistrate on 08.01.2010 and thereafter, send to the learned Special Court, the learned Special Judge has rejected the said application by observing that as the applicant had absconded, he cannot get the benefit under Section 467 of the CrPC.
[2.1] Being aggrieved and dissatisfied with the impugned order passed by the learned Special Court in rejecting the discharge application submitted by the applicant original accused, the applicant has preferred the present Criminal Revision Application under Section 397 read with Section 401 of the CrPC.
[3.0] Shri Gondaliya, learned advocate appearing on behalf of the applicant has made only one submission that as such the applicant cannot be said to be absconding. It is submitted that in absence of any proceedings initiated by the concerned IO declaring the applicant absconded, it cannot be said that the applicant had absconded and therefore, he is not entitled to the benefit under Section 467 of the CrPC considering section 470(4)(b) of the CrPC. It is submitted by Shri Gondaliya, learned advocate appearing on behalf of the applicant that as such the applicant was very much available at his residence at Madhavpura. Therefore, it is requested to allow the present Criminal Revision Application.
[4.0] Present application is opposed by Ms. C.M. Shah, learned Additional Public Prosecutor appearing on behalf of the respondent State. It is submitted that as such in the affidavit before the learned Special Court, the IO specifically mentioned that the applicant was not available for arrest for three years and he was arrested in the year 2009 only and thereafter the investigation was proceeded further and immediately thereafter the chargesheet has been filed and therefore, no illegality has been committed by the learned Special Court in dismissing the application Exh.16 in Special Case No.28 of 2011 and rejecting the discharge application submitted by the applicant.
[5.0] Heard learned advocates appearing on behalf of respective parties at length. At the outset it is required to be noted that the complaint came to be filed against the applicant for the offence under Section 135 of the Indian Electricity Act, 2003 on 20.09.2006 for the offences alleged to have happened on 0910.05.2006. However, it appears that as the applicant had absconded and he was not available for the investigation, the investigating agency could not investigate the complaint and could not file the chargesheet. It appears that the applicant came to be arrested on 07.11.2009 and immediately thereafter after concluding the investigation, the chargesheet has been filed on 25.12.2009. In the affidavit filed by the IO, before the learned Special Court it has been specifically mentioned that despite various efforts, the applicant could not arrested and the applicant has absconded and was arrested only on 07.11.2009. There is no counter filed by the applicant to the affidavit filed by the IO disputing the contents of the affidavit filed by the IO produced at Exh.17. Under the circumstances, merely because the applicant was not declared absconded, it cannot be said that the applicant is entitled to benefit under Section 467/468 of the CrPC. In the facts and circumstances of the case, the learned Special Court has rightly held that considering Section 470(4)(b) of the CrPC as the applicant has avoided his arrest, he is not entitled to benefit under Section 467 of the CrPC and consequently the learned Special Court has rightly rejected the discharge application.
[6.0] In view of the above and for the reasons stated above, there is no substance in the present Criminal Revision Application which deserves to be dismissed and is, accordingly, dismissed.
(M.R. Shah, J.) menon