A person cannot be declared a Proclaimed Offender if they have expressed intent to surrender and are taking steps to comply with legal processes.

ORDER

Poonam A. Bamba, J.

1.0. Vide this petition u/S.482 Cr.PC, the petitioner has sought for setting aside of order dated 20.11.2021 ('impugned order' in short), passed by Ld. Chief Metropolitan Magistrate ('CMM' in short), Tis Hazari Court declaring the petitioner as a Proclaimed Offender ('PO' in short) in FIR No. 240/2021, u/Ss. 392/34 IPC, PS Desh Bandhu Gupta Road.

2.0. It is submitted that the petitioner has been falsely implicated in the above FIR. On coming to know about his implication, the petitioner filed an application u/S. 438 Cr.PC for anticipatory bail before the Ld. ASJ, Tis Hazari Court, which was dismissed vide order dated 28.09.2021. Subsequently, the petitioner approached this court for anticipatory bail vide Bail Application no. 3693/2021, which was also dismissed vide order dated 07.10.2021.

2.1. It is further submitted that aggrieved by the above order of this court, the petitioner preferred an SLP bearing No. 8357/2021 before the Hon'ble Supreme Court. Vide order dated 17.11.2021, the said SLP was also dismissed and the petitioner was directed to surrender before the concerned authorities within one week. Accordingly, on 18.11.2021, the petitioner filed an application for surrender before the court of Ld. CMM, along with the copy of the order of the Hon'ble Supreme Court. The petitioner was directed to supply copy of the application to the State and the matter was put up for consideration for 22.11.2021. On 22.11.2021, the petitioner duly appeared before the Ld. CMM for the purpose of surrender.

2.2. It is further submitted that thereafter, an application for cancellation of proceedings u/S. 82 Cr. PC was also filed on behalf of the petitioner. The petitioner was apprised that he has already been declared PO by the Ld. CMM on 20.11.2021 and his application was dismissed.

3.0. The petitioner has challenged the aforesaid order dated 22.11.2021 on the ground that the petitioner was granted liberty to surrender within a week by Hon'ble Supreme Court, vide order dated 17.11.2021. The said order was even filed along with the petitioner's application for recalling of proceedings u/S. 82 Cr.PC. But the Ld. CMM dismissed his application without considering this vital aspect.

3.1. It is also argued that on one hand, the petitioner's application for surrender filed on 18.11.2021 was kept pending for consideration on 22.11.2021 and on the other hand, in the meanwhile, the petitioner was declared absconder on 20.11.2021. Thus, the impugned order is perverse and is a gross abuse of process of law and, calls for setting aside.

4.0. Per contra, this application is strongly opposed by the State submitting that the present petition is not maintainable as the petitioner has an efficacious alternate remedy by way of revision petition before the Ld. ASJ and placed reliance upon judgment of Punjab & Haryana High Court dated 20.07.2020 in CRM.M. 14089/2020 titled as Mehar Singh vs. State of Punjab and also on the judgment of Rajasthan High Court dated 17.02.2018 in S.B. Criminal Miscellaneous (Petition) No. 6800/2017 titled as Ishwar Lal Kuldeep vs. State of Rajasthan Through PP.

4.1. It is further submitted that even otherwise, this petition deserves to be dismissed on facts. It is submitted that there are serious allegations against the petitioner in the aforesaid FIR; that after arrest of co-accused Ravi Gupta, efforts were made to arrest the present petitioner and to recover the case property, but he has been evading arrest. Consequently, on 13.09.2021, proceedings u/S. 82 Cr.PC were initiated against him.

4.2. Ld. Prosecutor also submitted that despite dismissal of the petitioner's application for anticipatory bail by Ld. ASJ vide order dated 28.09.2021 and even by this court vide order dated 07.10.2021, the petitioner did not surrender and filed an SLP challenging the order of this court by way of SLP, which also came