Back
2017 Supreme(Del) 664
IN THE HIGH COURT OF DELHI AT NEW DELHI
S.P. GARG, J.
PURUSHOTTAM DEV ARYA & ORS. - Petitioners
Versus
CBI - Respondent
CRL.REV.P. 182, 181 of 2012 & CRL.M.A. No. 4191, 4188 of 2012
Decided On : 23-02-2017
For the Petitioner:Mr. Jitendra Sarin, Advocate.
For the Respondent:Ms. Sonia Mathur, Standing Counsel with Mr. Sushil Kumar Dubey & Mr. Abhishek Chauhan, Advocates.
Important Point—It is not necessary for Sessions Court that offence should be one exclusively triable by Courts of Sessions.
Headnote:(A) Indian Penal Code, 1860—Section 120B read with Section 174A—Criminal Procedure Code, 1973—Section 482—Conspiracy and non-appearance in response to proclamation—Framing of charge—Petitioners along with others are facing trial in a case registered under Sections 120B/420 IPC and Section 13(2) read with Section 13(1)(d) of PC Act—Petitioners did not put appearance before Trial Court despite issuance of non-bailable warrants—Since petitioners had deliberately avoided to appear before Trial Court and despite rejection of their applications seeking personal exemption they did not bother to appear, issuance of process under Section 82 Cr.P.C. cannot be faulted—Bar of Section 195 (1) (a) Cr.P.C. is not applicable to facts and circumstances of this case—Cognizance taken for offence under Section 174A IPC cannot be faulted—Offence under Section 174A IPC which arises out of proceedings conducted during main case, can be tried and disposed of by same Court—Lodging of separate FIR for commission of offence under Section 174 IPC is not always required—Prima facie, there was sufficient and enough material before Court to proceed for commission of offence under Section 120B IPC read with Section 174A IPC and Section 174A IPC—Petitions dismissed. (Paras 13, 14, 21 to 27)
(B) Criminal Procedure Code, 1973—Section 26—Trial of offences—Sessions Judge has power to try any offence under Indian Penal Code—It is not necessary for Sessions Court that offence should be one exclusively triable by Courts of Sessions. (Para 25)
S.P. GARG, J.
1. Present petitions have been preferred by the petitioners under Section 482 Cr.P.C. to challenge the legality and correctness of an order dated 26.03.2012 of learned Special Judge, CBI by which charges under Section 120B read with Section 174A IPC and Section 174A IPC were framed against them. The petitions are contested by the respondents.
2. I have heard the learned counsel for the parties and have examined the file. It is not in dispute that the petitioners along with others are facing trial in a case registered vide FIR bearing RC No.DAI/2010/A/044 registered under Sections 120B/420 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act.
3. Admittedly, FIR was lodged on 29.11.2010 on the basis of ‘source information’. The petitioners were arrayed as accused No.7 and 8 respectively. By an order dated 23.05.2011, learned Special Judge took cognizance of the aforesaid offences. It is urged that instead of issuing summons or warrants under Section 204 Cr.P.C. for appearance of the petitioners, the Trial Court straight away issued proclamation under Section 82 Cr.PC. on the basis of report on the warrants procured by the Investigating Agency. The proclamation required the petitioners to appear on 14.07.2011 at 10.00 a.m.
4. On 14.07.2011, the petitioners did not appear personally due to pendency of anticipatory bail before this Court. They appeared through advocate before the Trial Court who filed an undertaking as desired by the Court to appear within 5 – 6 working days after the disposal of the anticipatory bail application on 15.07.2011.
5. It is averred that on 21.07.2011 the learned Special Judge without cogent reasons rejected the ‘undertaking’ furnished by the petitioners despite pendency of anticipatory bail petition. After recording statement of the process server regarding execution of the process under Section 82 Cr.P.C., the Trial Court issued order of attachment of immovable properties.
6. The petitioners approached this Court for quashing of the process issued under Section 82 Cr.P.C. vide Crl.M.C.2136/2011 and also moved bail applications No. 885/2011 and 882/2011 respectively for anticipatory bail. Both were dismissed vide orders dated 02.08.2011. SLP (Crl.) Nos. 5991/2011 and 5989/2011 were dismissed as ‘withdrawn’ on 11.08.2011.
7. Undisputedly, the petitioners surrendered on 16.08.2011 before the learned Special Judge and were sent to judicial custody. On 18.08.2011, the petitioners were remanded to police custody for five days. Subsequently, they were lodged to judicial custody. The petitioners have since been granted bail in the main case i.e. CC No.22/11 on 23.01.2012. In CC No.24/11 relating to Section 174A read with Section 120B IPC, the petitioners were admitted to bail on 16.02.2012.
8. On 08.11.2011, CBI filed supplementary charge-sheet under Section 174A read with Section 120B IPC in the main case i.e. CC No.22/11 and the impugned charge was framed therein. Learned counsel for the petitioners urged that the CBI Court had no jurisdiction to issue process under Sections 82/83 Cr.P.C. as they had put appearance before the Trial Court through counsel and had furnished the required ‘undertaking’. Proclamation as envisaged under Section 82 Cr.P.C. did not specifically require ‘personal appearance of the petitioners on the date and time mentioned therein.’ Appearance through their counsel was due compliance of the proclamation issued under Section 82 Cr.P.C. Moreover, petitioners’ applications under Section 438 Cr.P.C. for seeking anticipatory bail was pending consideration before this Court; they could not have been deprived of their fundamental right to seek legal remedies. There was no intentional default on behalf of the petitioners to put appearance before the Trial Court and it was due to sufficient and valid reasons.
9. Learned counsel further urged that CBI Court had no jurisdiction to take cognizance of the charge-sheet filed under Section 174A IPC; CBI had no jurisdiction
