Orders under Section 82 Cr.P.C. must not be issued mechanically; accused should be given the opportunity to appear before the court to avoid being treated as absconders.

JUDGMENT

Anoop Kumar Mendiratta, J. (Oral)--The present petition has been filed on behalf of the petitioners under Section 482 Cr.P.C. for setting aside the order dated 24.02.2022 passed by learned C.M.M., New Delhi District, Patiala House Court in FIR No.169/2021 dated 26.08.2021 registered at Police Station: Crime Branch.

2. In brief, an FIR No.169/2021 dated 26.08.2021 was registered at Police Station: Crime Branch, New Delhi under Sections 170/419/420/384/120B/34 I.P.C. Accused Sharukh Khan was arrested and in his disclosure named the petitioners. The Investigating Officer moved an application before the learned trial court for initiating the proceedings under Section 82 of Cr.P.C. since the accused/petitioners were untraceable.

A written proclamation under Section 82 of Cr.P.C. was accordingly issued and published in the newspaper thereby fixing the date for appearance for 24.02.2022, before the learned trial court.

3. As per the case of the petitioners, on coming to know regarding the initiation of proceedings, an application was moved on 10.02.2022 before the learned trial court with a request to drop the proceedings initiated under Section 82 of Cr.P.C. The said application was posted for 24.02.2022. On 24.02.2022, petitioners claim to have joined the proceedings through video-conferencing but the application was dismissed by learned trial court after hearing the counsel.

4. The order passed by learned C.M.M. may be reproduced for reference:

"

FIR No.169/2021

P.S CRIME BRANCH NEW DELHI

UNDER SECTION 170/419/420/384/120B/34 IPC

24.02.2022

Present: Shri Vikas Ld. APP For the State

Ld. Counsel for the applicant

An application has been moved seeking dropping of proceeding under section 82 Cr.P.C accused persons namely Ahmed khan, Iqbal, Aamir Khan, Rijwan, Rajjak, and Asam Khan.

It is submitted by the Ld. Counsel that accused person are very much residing on the given address and never received any notice or warrant issued by the 10. Therefore, process U/S 82 Cr.P.C was initiated against them and same was published in newspapers from where accused persons came to know regarding the proclamation issued against them. All have deep roots in the society and they are ready to join investigation as directed by the 10. The 10 has replied that in the instant FIR Sharukh Khan and Iqbal was arrested and subsequently chargesheeted. Shahrukh Khan disclosed the name of his maternal cousins namely Ahmed, Iqbal, Amir, Rijwan, Rajjak, and Asam in the sextortion racket. These accused persons were not found at their address and their NBWs were obtained and their house was visited but they were not found. Thereafter, process under section 82 Cr.P.C was obtained which is returnable on 24.02.2022.

It is submitted that Mobile Phones, SIM Cards, Bank Accounts used in the alleged crime and to be recovered and account holders are to be identified which are used for sextortion racket operation.

Heard Perused.

Since the accused persons have been evading as NBWs remained unexecuted at their address, and their custodial interogation appears to necessary, this court sees no justification in dropping the provision under section 82 Crpc against all the accused persons.

Hence application is accordingly dismissed.

CMM Patiala House Court

New Delhi."

5. Learned counsel for the petitioners aggrieved by the aforesaid order submits that the proceedings under Section 82 of Cr.P.C. were not dropped in terms of the prayer made in the application in a mechanical manner.

Reliance is also placed upon the judgment passed by Hon'ble Supreme Court in `State of Madhya Pradesh vs. Pradeep Sharma', (2014) 2 SCC 171, wherein it has been observed as follows:

"when the relief of anticipatory bail is curtailed, as a consequence of an order passed under Section 82 of the Code, declaring a person absconder, the said order cannot be passed in mechanical manner without recording satisfaction and reasons nor can the same be passed without following the procedure as laid do