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2017 Supreme(Del) 436
IN THE HIGH COURT OF DELHI AT NEW DELHI
I.S. MEHTA, J.
DEEPAK KUMAR @ DEEPAK SAHA – Petitioner
Versus
STATE – Respondent
CRL.M.C. 4703 of 2014 & Crl. M.A. 15996 of 2014
Decided On : 07-02-2017
For the Petitioner: Mr. Sandeep Kumar, Ms. Priya Hingorani, Mr. Akhand Pratap & Mr. Chandra Bhushan
For the Respondents: Ms. Kusum Dhalla
The Investigating Officer cannot add Section 174A IPC in the charge-sheet before the accused is declared a proclaimed offender by the Competent Court of Law.
Headnote:
Section 174A IPC - Quashing of Orders - 82, 83 Cr.P.C. - [Sections 82, 83 Cr.P.C., Section 174A IPC] - The court quashed the orders passed by the learned CMM, Patiala House Courts, New Delhi under Sections 82 and 83 Cr.P.C. and declared the petitioner as a proclaimed offender. The court held that the Investigating Officer could not have added Section 174A IPC in the charge-sheet before declaring the petitioner as a proclaimed offender by the Competent Court of Law.
Fact of the Case:
The petitioner sought to quash orders passed by the learned CMM, Patiala House Courts, New Delhi, declaring him a proclaimed offender under Sections 82 and 83 Cr.P.C.
Finding of the Court:
The court quashed the impugned orders as the purpose of the proceedings under Sections 82 and 83 Cr.P.C. had already been met, and the Investigating Officer could not have added Section 174A IPC in the charge-sheet before the petitioner was declared a proclaimed offender.
Issues: Whether the Investigating Officer could add Section 174A IPC in the charge-sheet before declaring the petitioner as a proclaimed offender.
Ratio Decidendi: The court held that the Investigating Officer could not add Section 174A IPC in the charge-sheet before the petitioner was declared a proclaimed offender by the Competent Court of Law.
Final Decision: The court quashed the impugned orders and allowed the present petition.
I.S. MEHTA, J.
1. By virtue of present petition filed under Section 482 Cr.P.C. the petitioner seeks to quash three orders dated 07.12.2010, 04.02.2011 and 10.10.2013 passed by learned CMM, Patiala House Courts, New Delhi, by which process under Sections 82 and 83 Cr.P.C. were issued against the petitioner and he was declared to be a proclaimed offender respectively.
2. The brief facts stated are that an FIR No. 69/07 dated 08.10.2007 under Sections 384/506/34 IPC was registered at Police Station Special Cell, Lodhi Colony, New Delhi. Consequently, one Brijesh Singh and Tribhuvan Singh were arrested. The co-accused Deepak Saha and Sanjay Singh could not be arrested and Non-bailable warrants (NBWs) were issued against them. Thereafter, Head Constable Sunil Gaur and Ajay Kumar executed the process under Sections 82 and 83 Cr.P.C. against the present petitioner. The Statement of process server under Section 82 Cr.P.C. was recorded by the learned CMM and subsequently, issued process under Section 83 Cr.P.C. qua against the present petitioner vide order dated 06.04.2011.
3. Thereafter, Sub Inspector Mr. Mukesh Singh and Head Constable Sunil Gaur visited the house of the petitioner Deepak Kumar for the execution of the process under Section 83 Cr.P.C. against him but the same could not be executed for want of property in the name of the petitioner.
4. This Court vide order dated 21.03.2012 directed the petitioner to surrender before the trial Court.
5. The petitioner filed Special Leave Petition before the Hon'ble Supreme Court of India and the said SLP was dismissed on 13.03.2013.
6. In the meanwhile, Investigation Officer filed a supplementary charge-sheet dated 31.08.2013 under Sections 384/387/419/420/467/468/471/474/ 174A/506/120B/34 IPC.
7. Thereafter, the petitioner filed an anticipatory bail application before the learned ASJ, New Delhi District and the learned ASJ after considering the application granted anticipatory bail in favour of the present petitioner on the basis of pendency of the present proceedings on 25.06.2016 .
Hence the present petition.
8. The learned counsel for the petitioner has submitted that Deepak Kumar was declared to be a proclaimed offender on 10.10.2013 by the learned CMM Patiala House Courts and has strongly urged that the Investigating Officer had no power to add Section 174A IPC in the supplementary charge-sheet dated 31.08.2013 prior to declaring the petitioner a Proclaimed Offender by the trial Court.
9. The learned counsel for the petitioner has further submitted that the petitioner is already been released on anticipatory bail vide order dated 25.06.2016 passed by learned ASJ, New Delhi and the supplementary charge-sheet qua against the petitioner was filed on 31.08.2013.
10. The learned counsel for the petitioner has further submitted that the process initiated qua against the petitioner is without the knowledge of the petitioner as the impugned order itself indicates that process under Section 83 Cr.P.C. could not be completed for want of the property.
11. The learned counsel for the petitioner has further submitted that since the petitioner has joined the trial and the charge-sheet is already been filed the impugned orders be set aside.
12. On the other hand, the learned APP for State opposes the contention of the learned counsel for the petitioner and has pointed out that the charge-sheet filed qua against the present petitioner is dated 31.08.2013 under Sections 384/387/419/420/467/468/471/ 474/174A/506/120B/34 IPC and further submitted that Section 174A IPC is a substantive offence and it requires trial.
13. The whole question hinges around whether Section 174A IPC could be added by the Investigating Officer before declaring the petitioner to be a proclaimed offender?
The answer is NO.
14. The petitioner was declared to be a proclaimed offender vide order dated 10.10.2013 which is reproduced hereunder:
"FIR No. 69/07
u/s 384/387/419/420/467/468/471/474/174A/506/120-B/34 IPC PS Special Cell
Stat
