Subhash Kakkar and Others vs State of Uttaranchal and Another

Hon''ble Servesh Kumar Gupta, J.—By means of this petition, a prayer has been advanced to quash the entire proceedings of criminal complaint case no.270/2004 (previous no.183/96), titled as ''Smt. Kiran Bhatia Vs. Smt. Neelam Bhatia & others'', pending in the court of Judicial Magistrate-I, Dehradun, and the order of cognizance dated 4.11.1995 passed therein, asking the petitioners to stand trial for the offences punishable u/s 452, 447, 504 and 506 IPC. The facts, pertaining to the controversy between the parties, relate back to almost around 25 years ago when Smt. Neelam Bhatia (petitioner no.2) was espoused with Praveen Bhatia, way back on 14.1.1986. Praveen Bhatia and his family hailed from Dehradun, whereas, Smt. Neelam belonged to a business class family, based at Delhi. Within a couple of years, the differences between the husband and wife and their respective families became sour, so Smt. Neelam Bhatia was constrained to leave her matrimonial house, and to reside with her father Mulkh Raj Kakkar. She lodged an FIR no.291/1991 in Delhi itself, in pursuance of which, the house of Praveen Bhatia was raided by one Satish Chandra Sharma, a Sub-Inspector of Police (Women''s Cell), P.S. Nanakpura, New Delhi, along with four other constables, in the company of Smt. Neelam, her father Sri Mulkh Raj Kakkar and two real brothers, namely, Sri Subhash and Shri Shailey. It is an admitted case between the parties that Praveen Bhatia happened to be a government servant in Air Force and posted somewhere at a very remote place in Maharashtra, and he was not present at the time of both the alleged incidents of 8.5.1992 and 18.5.1992. This search was conducted, allegedly on the strength of a search warrant by the police, and it has been alleged by Smt. Kiran Bhatia that police personnel, who were being led by S.I. Satish Chandra Sharma, plundered her house on the persuasions and shadow of directions given by petitioners. She approached the local police officers for rendering assistance against this highhandedness, being led by Smt. Neelam along with her father and two brothers, but her prayer could not solicit any heed on the part of local police officers at Dehradun. So, she was constrained to file the instant complaint on 21.9.1993 against all the petitioners and the police personnel of Delhi Police. Learned Magistrate, after recording the statements u/s 200 and 202 Cr.P.C., was of the view that no offence was made out against the police personnel, inasmuch as, they were conducting search on the basis of an alleged search warrant. He further expressed his opinion that there might be some irregularities on the part of police personnel but the same were not sufficient to take cognizance against them and he found a fit case for taking cognizance against the petitioners for the offence of Sections 452, 447, 504 and 506 IPC.

The process was repeatedly sent by the court concerned to ensure the presence of accused for several years but they did not put their appearance in the court, rather they moved to Hon''ble Apex Court, seeking transfer of the instant complaint case from Dehradun to Delhi court. The Hon''ble Apex Court was not convinced with the prayer entailed in petition, and dismissed the same on 30.7.2001, by permitting them to apply exemption from personal appearance before the court. It was also directed that in case such exemption application is made, the same shall be granted on the conditions that, a counsel on petitioners'' behalf would be present in the court whenever their case is taken up; the petitioners will not dispute their identity as the accused in the case and that the petitioners will be present in the court, when such presence is imperatively needed.

Petitioners, instead of putting their appearance before the trial court, moved an application through their advocate on 12.10.2001, whereby they sought time to file objection against the summoning order. However no exemption application even that time was filed and simply the petitioners sought adjournment on the said ground. Learned Magistrate observed in his order, made on the said application, that the case could be proceeded only after moving the exemption application by the accused, and accordingly, he fixed the matter for 1.11.2001 for further orders.

It appears that instead of putting appearance, either in person or through counsel or even moving an exemption application through counsel, the petitioners slept over the directions of the Magistrate and woke up after more than two years on 13.1.2004, when they moved an application with the same prayer, as afore-stated, and that too, without moving any application for exemption of their presence. The said application was rejected by learned Magistrate on the same day, i.e. on 13.1.2004, by an elaborate order.

It also transpires that the petitioners ignoring the direction of the Magistrate, after about 21/2 months, moved further application on 24.5.2004 (Annexure 8 to the petition), through their advocate, stating therein that they could not be informed about the date fixed in the matter and that they had to file objections against the cognizance order, hence they sought exemption from their presence. This application was rejected by learned Magistrate on the same day, by passing a reasoned order and he was of the view that petitioners, by moving repeated applications on fictitious and baseless reasons, are contemptuously violating, even the directions of Hon''ble Apex Court. Therefore, he issued the non-bailable warrants against all the petitioners. When these warrants were in the process of execution, that further consumed almost eight months, the petitioners have come up through this petition, for quashing the instant complaint as well as the order of cognizance.

The main contention, strenuously raised by learned counsel for the petitioners, is that the police personnel were acting on the strength of the search warrant. The Magistrate, in the impugned order, has himself observed the same, therefore, there was no fault of the petitioners, even if they were accompanying the police personnel. The argument submitted on behalf of petitioners, might have carried some force if the cognizance order would have been passed by learned Magistrate for the offences u/s 395, 380, 382 and other sections, which have been mentioned in the title of complaint, but on the other hand, the cognizance order has been passed only for the offences punishable u/s 452, 447, 504 and 506 IPC, and the facts of these offences have also been mentioned in the complaint.

The entire scenario is thus, enough to reveal that all the petitioners, by moving one baseless application, are averting their presence in the court concerned. They have no regard to the orders of the court and even of the Hon''ble Apex Court. It is obvious that they were not rightly legally advised in trial court. Besides, this petition is so belated that it has been filed against the complaint dated 21.9.1993 and the summoning order dated 4.11.1995. Now, almost a period of 17-19 years has expired and in this span of time, they have been continuously avoiding and averting to have any regard to the orders of the court and make compliance of them and ultimately, they have come up in this petition. So, in view of the above, the petition is utterly meritless and liable to be dismissed.

Petition is, accordingly, dismissed. Petitioners are directed to comply with the order of cognizance and also to follow the directions of Hon''ble Apex Court, issued to them on 30.7.2001. Since the petitioners'' non-bailable warrants are in force, so once, they will put their personal presence in the court, within three weeks from today, thereafter they will be granted bail by the court in the said offences. The petitioners will appear by all means on further dates, either in person, or through their counsel, at their choice. If they fail to appear through their counsel, without moving any exemption application, then the court will be at liberty to issue non-bailable warrants against them and then to proceed as per law. It is further made clear that after procuring bail from the court concerned, if they appear through their counsel, by moving exemption application, then such application will be entertained and allowed only if the counsel remains personally present to press the same and cooperate in furtherance of the proceedings. Interim order dated 17.2.2006 is hereby vacated. Since the trial has been excessively delayed due to the conduct of accused persons, as aforementioned, hence it is directed that the Magistrate concerned will expedite the same and make endeavour to adjudicate this complaint within a period of six months, as far as possible.