Vishal Satinder Sood and another vs State of Haryana

MANISHA BATRA, J.

The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of FIR No.213 dated 08.03.2018, registered under Section 174-A of IPC at Police Station Sector-8, Faridabad, along with the consequential proceedings, including the final report/challan dated 25.02.2019 and the order dated 08.11.2023 passed by the learned Judicial Magistrate First Class, Faridabad, whereby the applications seeking exemption from personal appearance filed by the petitioners were dismissed and non-bailable warrants were issued against them.

Brief facts of the case relevant for the purpose of disposal of this petition are that the petitioners were arraigned as accused Nos.7 and 5 respectively in complaint NACT No.4779 of 2015 titled Manju Bala versus M/s Catmoss Retail Pvt. Ltd., instituted under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’). The petitioners claim that they were erstwhile non-executive/independent nominee directors of the company and had ceased to be its directors with effect from 10.06.2013, prior to institution of the complaint. During the proceedings in the said complaint, warrants of arrest were issued against the accused. Thereafter, proclamation under Section 82 Cr.P.C. was issued and, vide order dated 30.11.2017, the petitioners were declared proclaimed persons. The learned Magistrate also directed the SHO concerned to register a case under Section 174-A IPC. Pursuant thereto, FIR No.213 dated 08.03.2018 came to be registered against the petitioners.

After coming to know about registration of the impugned FIR, the petitioners approached the learned Sessions Court and were granted anticipatory bail on 20.08.2018. They also joined the investigation and surrendered before the trial Court in the proceedings under Section 138 of the N. I. Act and were granted bail. Thereafter, the proceedings in the complaint under Section 138 of the N. I. Act continued for some time. The record shows repeated non-appearance of the complainant despite notices and calls by the trial Court. Ultimately, vide order dated 17.01.2019, the learned trial Court observed that the complainant was not willing to pursue the complaint and dismissed the same in default for want of prosecution. The police, however, had already submitted a final report/challan under Section 174-A IPC against the petitioners. The petitioners have approached this Court seeking quashing of the FIR and the consequential proceedings on the ground that continuation thereof, after dismissal of the main complaint, would amount to abuse of the process of law.

Learned counsel for the petitioners has argued that the entire basis of the FIR under Section 174-A IPC was the alleged non-appearance of the petitioners in the complaint under Section 138 of the N. I. Act. It is argued that the petitioners subsequently appeared before the trial Court and were granted bail, thereby regularising their absence, and thereafter the main complaint itself was dismissed for want of prosecution on 17.01.2019. Learned counsel further argued that once the proceedings from which the proclamation had arisen had come to an end, continuation of the proceedings under Section 174-A IPC would serve no useful purpose and would amount to abuse of the process of law. Reliance has been placed upon the judgment of this Court in Ashok Madan v. State of Haryana and another, 2020(4) RCR(Criminal) 87, wherein, in similar circumstances, this Court had held that once the main complaint was dismissed for want of prosecution and the absence of the accused had subsequently been regularised by grant of bail, continuation of proceedings under Section 174-A IPC would amount to abuse of the process of Court. Hence, it is urged that the petition deserves to be allowed.

On the other hand, learned State counsel has opposed the petition by arguing that the petitioners had been duly declared proclaimed persons in accordance with law and the FIR under Section 174-A IPC was registered pursuant to the order passed by the learned Magistrate. It is further argued that the offence under Section 174-A IPC is an independent offence and the subsequent dismissal of the main complaint would not wipe out the offence already committed by the petitioners. Hence, it is urged that the petition is liable to be dismissed.

This Court has heard the rival submissions of learned counsel for the parties.

The issue before this Court is whether the proceedings arising out of the FIR registered under Section 174-A IPC against the petitioners should be permitted to continue, when the petitioners had subsequently appeared before the trial Court and were granted bail and the very complaint in which they had been declared proclaimed persons was thereafter dismissed for want of prosecution. It is not in dispute that the petitioners were accused in the complaint under Section 138 of the N.I. Act. During the pendency of those proceedings, they were declared proclaimed persons on account of their non-appearance and, pursuant to the order of the learned Magistrate, the impugned FIR under Section 174-A IPC came to be registered. Subsequently, the petitioners appeared before the concerned Courts, joined the investigation and were granted bail. Thus, the petitioners' absence, which had led to their being declared proclaimed persons, was thereafter regularised by the competent Court.

It is further a matter of record that the main complaint under Section 138 of the N.I. Act was ultimately dismissed in default for want of prosecution on 17.01.2019. The record of the trial Court shows that the complainant had remained absent despite repeated opportunities and notices and, consequently, the learned Magistrate recorded that the complainant was not willing to pursue the complaint and dismissed the same for want of prosecution. The question, therefore, is whether, in these circumstances, the petitioners should still be subjected to prosecution under Section 174-A IPC merely because at an earlier stage they had been declared proclaimed persons in the proceedings which have subsequently come to an end. The aforesaid issue is no longer res integra. In Ashok Madan v. State of Haryana and another, 2020(4) RCR (Criminal) 87, this Court was dealing with a similar situation where proceedings under Section 82 Cr.P.C. had been initiated against the accused in a complaint under Section 138 of the N.I. Act and an FIR under Section 174-A IPC had consequently been registered. The accused subsequently appeared before the trial Court and was granted bail, while the main complaint was dismissed for want of prosecution. This Court held that once the accused had been granted bail and his absence stood regularised, the order declaring him a proclaimed person ceased to operate and continuation of the proceedings under Section 174-A IPC would amount to abuse of the process of Court.

The facts of the present case are materially similar to the aforesaid case. The impugned FIR was registered only because of the petitioners having been declared proclaimed persons in the proceedings under Section 138 of the N.I. Act. The petitioners thereafter appeared before the trial Court and were granted bail. The main complaint has also subsequently been dismissed for want of prosecution way back in the year 2019 and no application has been filed by the complainant seeking restoration of the complaint so far. Therefore, the very proceedings in which the petitioners were declared proclaimed persons are no longer pending.

Though learned State counsel has argued that the offence under Section 174-A IPC is an independent offence, the said submission cannot be considered in isolation from the facts of the present case. The Supreme Court's power under Section 482 Cr.P.C. is intended to prevent abuse of the process of Court and to secure the ends of justice. In the present case, permitting the proceedings arising from the impugned FIR to continue, despite the subsequent appearance and grant of bail to the petitioners and dismissal of the main complaint, would serve no meaningful purpose and would amount to continuation of proceedings arising from a default which already stood regularised.

Moreso, a reference can be made to the bar contained under Section 195 Cr.P.C. A coordinate Bench of this Court in Pardeep Kumar Vs. State of Punjab and another, CRM-M-41656-2023, decided on 23.08.2023, after undertaking an elaborate examination of Sections 174-A IPC and 195 Cr.P.C., has categorically held that cognizance of an offence under Section 174-A IPC cannot be taken except upon a complaint in writing by the concerned public servant or by a public servant to whom he is administratively subordinate. It was observed that though Section 174-A IPC is a cognizable offence, yet the same continues to fall within the ambit of Section 195(1)(a)(i) Cr.P.C., as the said provision expressly applies to offences punishable under Sections 172 to 188 IPC. It was further held that the Magistrate, after declaring an accused as proclaimed person, cannot simply direct the police to register an FIR under Section 174-A IPC and set the criminal law into motion through the police machinery, but is required to adopt the procedure prescribed under Section 195 Cr.P.C. by filing a complaint before the competent Court.

In the present case also, the impugned FIR under Section 174-A IPC came to be registered merely on the basis of directions issued by the learned trial Court to the SHO concerned after declaring the petitioner as proclaimed person, without institution of any complaint as contemplated under Section 195 Cr.P.C. Thus, the very initiation of proceedings stands vitiated being contrary to the mandatory statutory requirement. Consequently, continuation of the impugned proceedings would amount to abuse of the process of law and cannot be permitted to continue.

In view of the discussion above, this Court is of the considered view that the case of the petitioners is squarely covered by the principle laid down in the aforecited authorities. Accordingly, the present petition is allowed and FIR No.213 dated 08.03.2018 registered under Section 174-A IPC at Police Station Sector-8, Faridabad, and all consequential proceedings arising therefrom are hereby quashed qua the petitioners.