Back
2017 Supreme(Del) 1142
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
KAILASH AGARWAL – Petitioner
Versus
STATE OF NCT OF DELHI & ANR. – Respondents
CRL.M.C. 1243 & 1246 of 2017
Decided On : 12-04-2017
For the Petitioner: Mr. Tanveer A. Mir, Mr. Pranay Sohini, Advs.
For the Respondents: Mr. Hirein Sharma, APP with SI Aditya PS Rajouri Garden, Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Baban Kr. Sharma, Mr. Neeraj Grover, Advs.
Compliance with the provisions of Section 41-A of the Cr.P.C. and the guidelines laid down by the Supreme Court in Arnesh Kumar case is crucial to avoid unnecessary arrest and ensure legal proceedings are conducted in accordance with the law.
Headnote:
proclaimed offenders - Criminal Procedure - 379/420/468/471/120B/467/406 IPC - Section 156(3) Cr.P.C. - Section 41(1)/41A Cr.P.C. - Section 82 Cr.P.C. - Arnesh Kumar Vs. State of Bihar & Anr. (2014) 8 SCC 273
Fact of the Case:
The petitioners were declared proclaimed offenders in a case registered under various sections of the IPC. Despite joining the investigation and being granted interim protection by the High Court and the Supreme Court, the petitioners were declared proclaimed offenders by the Metropolitan Magistrate.
Finding of the Court:
The court found the order declaring the petitioners as proclaimed offenders to be illegal and in contempt of the Supreme Court's order. The court set aside the impugned order.
Issues: The main issue was the legality of declaring the petitioners as proclaimed offenders despite their compliance with the court's orders and the provisions of the Cr.P.C.
Ratio Decidendi: The court emphasized the importance of complying with the provisions of Section 41-A of the Cr.P.C. and the guidelines laid down by the Supreme Court in Arnesh Kumar case to avoid unnecessary arrest and proclaimed the impugned order as illegal and in contempt of the Supreme Court's order.
Final Decision: The court set aside the order declaring the petitioners as proclaimed offenders and directed the copy of the order to be placed before the Inspecting Committee of the Court.
MUKTA GUPTA, J.
1. By the common impugned order dated 21st February, 2017 the two petitioners were declared proclaimed offenders in case FIR No.600/2016 registered under Sections 379/420/468/471/120B IPC at PS Rajouri Garden wherein Sections 467 and 406 IPC were subsequently added. Above-noted FIR was registered on the complaint of one Madhu Sudan Agarwal S/o Mool Chand Agarwal, Director of Haldiram Snacks Pvt. Ltd. pursuant to an order dated 8th June, 2016 under Section 156 (3) Cr.P.C. passed by the learned Metropolitan Magistrate Shri Ajay Kumar Malik, Tis Hazari Courts. The allegations in the FIR are not relevant to the decision of the present case.
2. Despite the FIR having been registered on 9th June, 2016 no notice was served on petitioner Kailash Agarwal till 20th December, 2016 when the first notice under Section 41(1)/41A Cr.P.C. was served on him to join investigation on 20th December, 2016 whereafter he filed an application for grant of anticipatory bail before the learned Additional Sessions Judge, Tis Hazari which was dismissed vide order dated 26th December, 2016. Subsequent thereto Kailash Agarwal filed an application seeking anticipatory bail before this Court wherein this Court vide order dated 10th January, 2017 granted interim protection subject to his joining the investigation. However, pursuant to the status report filed and after hearing the parties, the anticipatory bail application of Kailash Agarwal was dismissed by this Court vide order dated 3rd February, 2017. Thus, the petitioner Kailash Agarwal had a protection of no arrest from this Court from 10th January, 2017 till 3rd February, 2017.
3. Aggrieved by the order dated 3rd February, 2017 passed by this Court rejecting the anticipatory bail application, Kailash Agarwal filed a Special Leave Petition before the Hon’ble Supreme Court which came up for hearing on 15th February, 2017 and was disposed of on the same day by the following order:
“This special leave petition is disposed of with a direction that the petitioner will not be arrested for a period of two weeks from today. In the meanwhile, the petitioner will be at liberty to surrender and move an application for regular bail before the concerned court, with at least one day advance notice to the public prosecutor. The Trial Court will consider and decide the application for bail as far as possible on the same day, having regard to the contentions which may be raised, in accordance with law.”
4. As noted above that after registration of FIR the investigating officer issued a notice under Section 41(1)/41A Cr.P.C. to Kailash Agarwal only to join the investigation on 20th December, 2016 which he could not join and time was sought for appearance by the learned counsel for Kailash Agarwal by filing an application along with his medical certificate. The investigating officer issued another notice under Section 41(1)/41A Cr.P.C. to Kailash Agarwal and simultaneously filed an application before the learned Metropolitan Magistrate, Tis Hazari for issuance of non-bailable warrants and vide order dated 27th December, 2016 the learned Metropolitan Magistrate issued non-bailable warrants against Kailash Agarwal and posted the matter for 9th January, 2017. On 9th January, 2017 the investigating officer filed another application before the learned Metropolitan Magistrate seeking issuance of process under Section 82 Cr.P.C. which was allowed and the matter was listed on 18th and 19th February, 2017.
5. On 21st February, 2017 the investigating officer filed an application before the learned Metropolitan Magistrate informing the process under Section 82 Cr.P.C., orders passed by this Court and the Hon’ble Supreme Court, prayed for recording of the statement of the process server and to declare the petitioner Kailash Agarwal and Subhash Agarwal as proclaimed offender. The facts noted in the application of the investigating officer dated 21st February, 2017 are reproduced as under:
“Hon’ble Court has issued pr
