Full Text
CRLM.C. 2020/2011
SANJEEV SWAROOP BHATNAGAR Petitioner Througli:lvir.Rakesh Khanna, Sr. Advocate witli |vir.Ral<esli Malliotra, Mr.R.K. Tripathi
Advs.
Through:Mr. Arvind K. Gupta, APP with SI Sunil Kumar, PS EOW
14.07.2011
ORDER
1. Mr.Sanjeev Kumar Sinha, the Complainant, got registered the FIR No.142/2010 under Section 420/406/409/120B Indian Penal Code, 1860 at Police Station EOW against the company namely M/s.Fortune Cabs and Fortune Infra Private Limited and its directors namely Mr.Manjeet Singh, Mr.Narender Kumar, Mr.Manish Sharma and Ms.Sarita Bhatnagar.
2. As submitted by Mr.Rakesh Khanna, Sr. Advocate, accused Sarita Bhatnagar has been arrested in this case on 18.03.2011, who was released on interim bail vide order dated 08.04.2011 passed by learned ACMM.
3. On 30.04.2011, after hearing bail applications, matter was adjourned for 02.05.2011 and accused Sarita Bhatnagar could not appear due to illness and hospitalisation. CRLM.C. 2020/2011 2011:DHC:15417
4. Learned Trial Court dismissed the bail application of the accused Manish Sharma and Sarita Bhatnagar as well vide its order dated 02.05.2011.
5. Further, the Trial Court issued NBWs against accused Sarita Bhatnagar on 13.05.2011 through Investigating Officer and interim bail was rejected.
6. While issuing NBWs against accused Sarita Bhatnagar, further directed the Investigating Officer to seal the house of accused Sarita Bhatnagar vide order dated 13.05.2011, further the warrants of arrest was also ordered to be issued against her surety.
7. The petitioner Sanjeev Swaroop Bhatnagar, who is absolute owner of the First Floor, House No.L-2/70, Mahavir Nagar, New Delhi wherein he is residing with his family which includes; accused Sarita Bhatnagar, his wife, and three minor school going children aged around 17, 13 and 5 years. On 30.05.2011, Investigating Officer in compliance of the order dated 13.05.2011, passed by the learned Trial Judge, sealed the house of the Petitioner.
8. Learned counsel for Petitioner submits that the Petitioner never received any notice from the Court. On 07.06.2011, he came to know the sealing order dated 13.05.2011. Being aggrieved by the aforesaid order, the Petitioner has filed the instant petition. CRL.M.C. 2020/2011 Page 2 of[9]
9. Though, the Petitioner is absolute owner of the property First Floor, House No.L-2/70, Mahavir Nagar, New Delhi, however, accused Sarita Bhatnagar is also residing in the same.
10. In the present situation, learned ACMM had to proceed under Section 82/83 Cr. P. C., if an accused has absconded.
11. Section 82 Cr. P. C. provides as unden- "82.Proclamation for person absconding.- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may public a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:- (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinl<s fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
12. Section 83 Cr. P. C. provides for attachment of the property as under:- "83.Attachment of property of person absconding.- (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise that the person in relation to whom the proclamation is to be issued, - (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, CRLM.C. 2020/2011 4 of[9] it may order tine attachment simultaneously with the issue of the proclamation. (2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. (3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made- (a) by seizure; or (b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; on
(d) by all or any two of such methods, as the
Court thinks fit. (4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases- (a) by taking possession; or (b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the
Court thinks fit. (5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court. (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908(5 of 1908)." CRL.M.C. 2020/2011 Page 5 of[9]
13. Learned counsel for Petitioner submits that learned Trial Court has not followed the procedure which is to be attached in cases where accused has absconded.
14. Section 446 Cr. P. C. prescribed when bond has been forfeited, which reads as under:-
446. Procedure when bond has been forfeited:-(l) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. Explanation:- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: V Provided tliat where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as Surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonnnent in civil jail for a term which may extend to six months. (3) The Court may, as its discretion, remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved. i<r
15. In the present case, the petitioner stood surety for accused Sarita Bhatnagar, who is his wife also. If the accused did not appear on any date or dates, then the learned trial Court was supposed to take the steps as provided under Section 82/83 Cr. P. C.
16. In the present case, I wonder the concerned ACMM (West) Ms.Ravinder Bedi passed the order dated 13.05.2011 as unden- "Present: Ld.APP for State. 10 SI Sunil Kumar (CBT Section /EOW). Heard. CD perused. Accused Sarita Bhatnagar has jumped the Interim Bail and is also not found at her stated address, as stated by 10. In such circumstances, issue non-bailable warrants against the ac Sarita Bhatnagar. Let the premises of the accused be also sealed with the seal of 10. Issue warrants of arrest against her surety. (Ms.Ravinder Bedi) ACMM(WEST)/Delhi 13.05.2011"
17. It is informed that accused Sarita Bhatnagar has already surrendered in the Court and granted bail on 11.07.2011 and warrants of arrest against the Petitioner (surety) still stands operative. Ld. Trial Court should have adopted the procedure prescribed in Cr. P. C., which she failed.
18. In the above facts and circumstances, the accused Sarita Bhatnagar has already been surrendered, thereafter, granted bail on 11.07.2011, I hereby quash the order dated 13.05.2011 passed against the petitioner.
19. The Investigating Officer Sub Inspector Sunil Kumar, Police Station EOW, who is present in the Court is directed to de-seal the property i.e. First Floor, House No.L-2/70, Mahavir Nagar, New Delhi within two hours i.e. by 7 0'clocl< today itself.
20. In the above terms, CrI. M. C. No.2020/2011 is allowed accordingly.
21. Further, I would like to suggest to the learned ACMM Ms.Ravinder Bedi, who has passed this order in hest, she should have adopted the procedure prescribed in the Cr. P. C., certainly not in the arbitrary manners as she has passed the order dated 13.05.2011. Reason is obvious, the house does not belong only to one person, the other family members are also there, who may be school going children or old ailing parents. Such arbitrary order affects the education, health and the liberty of the concerned. In case of sealing of the house, under any circumstance, the Court has to adopt proper procedure, so that they can avail the remedy available with them. I advised her through this order that in future, be careful in passing such unwarranted order.
22. It is made clear that this order will not come in her career in any way; it is advisory one.
23. I direct the Registrar General of this Court to bring this order into the notice of the learned ACMM for her information and compliance.
SURESH KAITJ JULY 14, 2011 RS/mk