Ms. Daevi Prakash Sheth v. Heena Ramesh Kumar Kathiria

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE PARTHA SARATHI CHATTERJEE WPA/614/2024 Ms. Daevi Prakash Sheth Vs.

Heena Rameshkumar Kathiria and another For the petitioner : Ms. Rashi Sheth (Through Virtual Mode) Mr. Pardeshia Munda For the Respondent no.1 : Mr. Subhankar Halder (on behalf of Mr. Alokesh Sarkar) For the respondent no. 2 : Mr. Sumit Karmakar Heard on : February 06, 2025 Judgement on : February 10, 2025 With WPA/616/2024 Mr. Prakash Chimanlal Sheth Vs.

Mr. Rameshkumar Gordhanbhai Kathiria and another For the petitioner : Ms. Rashi Sheth (Through Virtual Mode) Mr. Pardeshia Munda For the Respondent no.1 : Mr. Anzer Ali For the respondent no. 2 : Mr. Sumit Karmakar Heard on : February 06, 2025 Judgement on : February 10, 2025

PARTHA SARATHI CHATTERJEE, J.

1.

Mr. Anzer Ali, learned advocate engaged by the State Legal Aid Services Authority to defend the respondent no.1, had previously pointed out that although the present petitions have been filed under Section 528 of the BNSS read with Article 227 of the Constitution of India, it has been registered as WPA/614/2024 and WPA/616/2024. However, as per the rules followed by this Court, the petition should have been registered under the nomenclature 'CRR' (Criminal Revision). Consequently, the Court passed an order directing that these two petitions be re-registered as Criminal Revisions and assigned the appropriate CRR numbers. 2.

The concerned department informs that the entire numbering system is computer-generated and that there is no provision for the re-registration of a writ petition as a criminal revision. In light of this information, I am inclined to address the issues raised in the writ petition without requiring their re-registration or the assignment of appropriate CRR numbers.

3.

Upon consent of the parties, both the writ petitions were taken up for hearing. 4.

The writ petition vide. WPA 614 of 2024 been preferred praying for quashing of the order dated 27.08.2024 passed by the learned Sessions Judge at Port Blair in Criminal Revision No. 08 of 2024, and order dated 18.04.2024 passed by the learned Judicial Magistrate First Class-I at Port Blair in C.R. Case No. 60 of 2018. Additionally, the petitioner in WPA 614 of 2024 prayed for a direction to the SHO, PS Aberdeen, to register an FIR against the accused/respondent no. 1 under Sections 229A and 174A of the Indian Penal Code (in short, IPC), based on the petitioner's application dated 28.10.2022.

5.

The other writ petition vide. WPA 616 of 2024 seeks quashing of the order dated 27.08.2024 passed by the learned Sessions Judge at Port Blair in Criminal Revision No. 07 of 2023, and the order dated 18.04.2024 passed by the learned Judicial Magistrate First Class-I at Port Blair in C.R. Case No. 62 of 2018. The

petitioner in WPA 616 of 2024 also prays for a direction upon the SHO, PS Aberdeen, to register an FIR against the accused/respondent no. 1 under Sections 229A and 174A IPC, based on the petitioner's application dated 28.10.2022. 6.

For having thematic coherence, both writ petitions were directed to be heard together.

7.

Prior to venturing to delve into the issues involved in the present writ petitions, it would be prudent to outline the essential facts leading to presentation of these writ petitions.

8.

The two petitioners filed two separate complaints, which were registered as CR Case Nos. 63 and 62 of 2018, respectively against respondent No. 1, alleging commission of offences under Section 138 of the Negotiable Instruments Act. On 26.11.2018, in both cases, two separate warrants of arrest were issued against the respondent no.1. He surrendered before the court, was granted bail in both two cases, but later misused the liberty. Consequently, warrants of arrest were issued further against the respondent no.1 on 24.02.2019. The respondent no.1 again surrendered and gave a written undertaking to pay the entire amount to the complainant, with interest, within two months. Based on these undertakings, he was granted interim bail, but failed to appear in court or make any payment. As a result, warrant of arrest (WA) and a warrant of proclamation and attachment (WPA) were issued against him, but the respondent could not be brought to court in execution of either warrant. 9.

In view of the above, the petitioner filed two separate petitions in both the two cases before the learned Trial Court, seeking direction to the SHO, PS Aberdeen, to register an FIR against respondent No. 1 and initiate a case under Sections 174A and 229A IPC.

10.

The learned Trial Court by passing two separate orders, disposed of both the applications, inter alia, holding that although a WPA was issued, its execution report had not been submitted to the court. Additionally, since respondent No. 1 was not

declared a proclaimed offender in the Island, the Trial Court declined to issue any direction to the SHO, PS Aberdeen, to initiate a case under Sections 174A/229A IPC against the respondent no.1.

11.

The records reveal that the orders of the learned Trial Court were challenged in Criminal Revision no.7 and Criminal Revision No. 08 of 2023, which were dismissed on 27.08.2024. The orders dated 27.08.2024 indicate that the learned Sessions Judge affirmed the learned Court's decision and refused to grant the petitioner's prayer on the grounds that, although a WPA had been issued, they were still pending execution. Therefore, the court held that the complainant should have waited for the execution reports of those WPA. Aggrieved thereby, both the petitioners have preferred these two writ petitions.

12.

Ms. Rashi Sheth, learned advocate for the petitioners in both writ petitions, submits that in both the cases, WPA were issued, and respondent No. 1 has been declared a proclaimed offender in this Island. She argues that the offences punishable under Sections 174A/229A IPC are independent of the outcome of the proclamation issued under Section 82 of the Code. According to her, the learned courts below erred in holding that, since the execution report of the WPA had not been submitted to the court, the court was not in a position to direct the initiation of a case under Sections 174A/229A of the IPC. To support her submission, she cites a decision of the Hon'ble Supreme Court in Criminal Appeal No. 4359 of 2024, titled Daljit Singh vs. State of Haryana & Anr. (reported at 2025 INSC 21).

13.

Mr. Sumit Karmakar, learned Advocate entered appearance on behalf of the State.

14.

In the present case, the respondent No. 1 remained unrepresented all along. As such, this Court directed the State Legal Services Authority to appoint a learned advocate to defend respondent No. 1. Consequently, Mr. Anzer Ali, learned advocate,

was engaged in WPA/616/2024, while Mr. Alokesh Sarkar, learned advocate, was engaged in WPA/614/2024 to defend the accused/respondent No. 1. 15.

Mr. Anzar Ali, in his usual fairness, submits that in both the cases, the accused/respondent No. 1 has been declared a proclaimed offender in this Island, and notifications of the proclamation were published in a newspaper having wide circulation in the Island.

16.

A key principle of the criminal justice system in India is that the accused must be present throughout the entire criminal trial process. The notion of an ex-parte trial is foreign to both the Indian legal system and the basic tenets of a fair trial, as guaranteed under Article 21 of the Constitution of India. The presence of the accused is essential not only during the framing of charges but also during the recording of evidence throughout the trial. As such, the Code has prescribed various forms of mechanism like summon, WA and WPA for ensuring the appearance of an accused person in Court.

17.

The primary responsibility for securing the arrest of a proclaimed offender is of the local police of the station under whose jurisdiction the accused resides. A proclaimed offender can be arrested by any police officer without any order from a Magistrate and without a warrant. Any private person can also arrest a proclaimed offender and hand him over without unnecessary delay to a police officer. However, experience suggests that despite being declared proclaimed offenders, many accused individuals are evading justice by hiding and failing to appear in court, thereby causing delays in the delivery of justice.

18.

The legislature, recognizing the increasing number of proclaimed offenders, inserted Sections 174A and 229A into the Indian Penal Code (IPC) by the Criminal Procedure Code (Amendment) Act, 2005 (25 of 2005). These provisions, which came into force on June 23, 2006, were enacted with the intention of serving the same as a deterrent for individuals who flee from justice.

19.

In the present case, records suggest that since despite giving an undertaking to pay off the entire amount with interest to the complainant, the respondent no.1 did not pay any single penny nor did he appear before the Court, WA were issued but those could not be executed. Consequently, WPA were issued in both the cases. The procedures prescribed in Section 82 including publication of notification in the newspaper were also followed. Orders dated 29.11.2022 passed by the learned Trial Court in both the cases indicate that the respondent no.1 was declared as proclaimed offender.

20.

As noted earlier, both courts declined to direct the concerned SHO to register a case under Sections 174A/229A IPC, citing the non-submission of the execution report of the WPA before the learned Trial court. Therefore, the issue which falls for consideration in this petition is whether a direction to register a case under Sections 174A/229A IPC can be issued pending execution of the WPA or prior to the submission of the execution report of the WPA.

21.

For better appreciation of the issue involved in these two writ petitions, it would be apt to reproduce the provisions, which are as follows: "Section 82 of the Cr.P.C. reads as follows:

"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 publish 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 thinks 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.

[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect."

Section 174A reads thus:

"174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."

Section 229A is reproduced as hereunder:

229A:Failure by person released on bail or bond to appear in court :-1[Whoever, having been charged with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of proving which shall lie upon him), to appear in court in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Explanation.-The punishment under this section is- (a) in addition to the punishment to which the offender would be liable on a conviction for the offence with which he has been charged; and (b) without prejudice to the power of the court to order forfeiture of the bond.] 22.

Therefore, a perusal of the afore-mentioned provisions reveals that after the issuance of a warrant of arrest (WA), if a court believes that the accused has absconded or is concealing themselves, the legislature has granted the court the authority to issue a warrant of proclamation and attachment (WPA) requiring the accused to appear at a specified place and time, which must be at least thirty days from the date of the proclamation's publication. Needless to state that order of issuance of WPA is a lawful order of the Court, if the same is issued and/or published following the procedure prescribed in Section 82 of the Code, violation of such lawful order would itself be an offence. As noticed earlier, taking note of increasing number of proclaimed offenders the legislature has introduced these two provisions being 174A/229A in IPC. 23.

Thus, at the cost of reiteration, it may be stated that a review of the provisions of Sections 174A/229A IPC indicates that the legislature intended for the order passed by a competent court under Section 82 to be fully complied with by the accused. Similarly, the legislature also intended that an accused

person, who is charged with an offence and released on bail, must appear in court as per the terms of the bail. Failure to do so would constitute an offence in itself.

24.

In the case of Daljit Singh (supra), it was held that Section 174A IPC constitutes an independent and substantive offence. This offence is stands-alone offence, meaning that a case under Section 174A IPC can be initiated against an accused if the elements of the section are met-specifically, if the order issued under Section 82 of the Code is not complied with. Similarly, the same principle applies to Section 229A IPC also. A case under Section 229A IPC can be initiated if an accused, released on bail, fails to appear in court in accordance with the conditions of the bail. 25.

Therefore, in accordance with the principles established in the decision of Daljit Singh (supra), it can be concluded that a case under Section 174A of the IPC may be initiated against an accused person, regardless of whether the execution report of the WPA has been submitted to the trial court. Similarly, if it is found that an accused, released on bail, has failed to appear in court, a case under Section 229A of the IPC may be initiated against that accused. The non-submission of the execution report of the WPA cannot impede the initiation of cases under Sections 174A and 229A of the IPC.

26.

Therefore, for the reasons stated hereinabove, I am of the considered view that there could not have been any obstacle before the learned Trial Court in directing the SHO, PS Aberdeen, to initiate proceedings under Sections 174A/229A IPC against the accused, provided that the other conditions, if any, for issuing such a direction are met. 27.

In view of the above, the order dated 27.08.2024 passed by the learned Sessions Judge at Port Blair in Criminal Revision No. 08 of 2024, the order dated 18.04.2024 passed by the learned Judicial Magistrate First Class-I at Port Blair in C.R. Case No. 60 of 2018, the order dated 27.08.2024 passed by the learned Sessions Judge at Port Blair in Criminal Revision No. 07 of 2023, and the order dated 18.04.2024 passed by the

learned Judicial Magistrate First Class-I at Port Blair in C.R. Case No. 62 of 2018 are set aside.

28.

The applications presented by both the petitioners in aforementioned cases before the learned Trial Court for issuance of necessary direction upon the SHO, PS Aberdeen to register an FIR and initiate a case (s) under Sections 174A /229 A of the Indian Penal Code against the accused person/respondent no.1 herein are revived with a direction upon the learned Trial Court to consider those applications afresh in the light of the observations made in this order. 29.

With this observation and order, these writ petitions are disposed of. However, there shall be no order as to the costs.

30.

Let two copies of this order be forwarded to the learned Trial Court forthwith. (Partha Sarathi Chatterjee, J)