Proceedings under SARFESI Act - Disclosure of true, complete and correct facts was very basis of writ jurisdiction- P&H High Court in Suresh Kumar Gaba v. Bank of Baroda, (DB) (02.05.2023)

Proceedings under SARFESI Act-Disclosure of true, complete and correct facts was very basis of writ jurisdiction

- P&H High Court in Suresh Kumar Gaba v. Bank of Baroda (DB) (02.05.2023)

 

PUNJAB AND HARYANA HIGH COURT

(DB)

Before:- G.S. Sandhawalia and Harpreet Kaur Jeewan, JJ.

CWP No. 19348 of 2022 (O&M). D/d. 02.05.2023.

M/s Suresh Kumar Gaba and another - Petitioners

Versus

Bank of Baroda and others - Respondents

Present: Mr. Rohit Suri, Advocate for the petitioner(s).

For the Respondent:- Mr. Yuvraj Shanoilya, AAG, Haryana.

Mr. C.S. Pasricha, Advocate and Mr. Sushil K. Bhardwaj, Advocate, for the respondent-Bank.

 

Constitution of India, 1950, Articles 226 and 227 

- Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest -Act, 2002, Section 13(2) 

- Payment of outstanding loan - Notice and proceedings under SARFESI Act - Challenged 

- Plea of respondent-bank that petitioners concealed material facts and have not disclosed full extent of their liabilities 

- Apart from housing loan accounts, there is Cash Credit Account and two term loans, against which there are substantial outstanding amounts and further pleaded that petitioners have history of multiple litigations and have engaged in deceptive practices to avoid repayment 

- Held, Writ Court while exercising its extra-ordinary jurisdiction would not hear a person on merits, if there is suppression of material facts 

- Disclosure of true, complete and correct facts was very basis of writ jurisdiction 

- Hence,writ petition dismissed with costs of Rs. 1 lakh.

[Para 10]

Cases Referred :-

Dalip Singh v. State of Uttar Pradesh, (2010) 2 SCC 114

Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449

JUDGMENT

G.S. Sandhawalia, J. - Challenge in the present writ petition filed under Article 226/227 of the Constitution of India is to the various notices and proceedings initiated under the Securitization and Re-construction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short '2002 Act').

2. The demand notice dated 03.01.2019 (Annexure P-3) which has been appended with the writ petition would go on to show that the respondent-Bank put forth a demand of Rs.16,99,110/- for the housing loan bearing account No.29700600002699. Similarly another demand of Rs.25,43,762/- against the housing loan bearing account No. 29700600002736 had been made, thus, taking the outstandings to Rs.42,42,872/- The property which was mortgaged was a residential property bearing House No.228, Sector-7, Urban Estate, Kurukshetra measuring 388.5 square yards in the name of Neelam Gaba wife of Suresh Kumar Gaba, who are the petitioners No.1 and 2, respectively herein. The said notice was apparently followed up by a notice dated 25.03.2019 issued under Section 13 (4) of the 2002 Act, which has been placed on as Annexure A-1 alongwith the reply filed on behalf of the petitioners to the application bearing CM-19929-CWP-2022 for vacation of stay dated 31.08.2022. The same has also been placed on record by the respondent- Bank as Annexure R-8.

3. In the reply to the application for vacation of stay the case of the petitioners was that the respondent-Bank was proceeding without issuance of the possession notice and resorting to proceedings under Section 14 of the 2002 Act and resultantly the order of the District Magistrate dated 30.10.2019 (Annexure P-4) has been challenged. A perusal of the order passed by the said authority would go on to show that there was reference to notice issued under Section 13 (2) of the 2002 Act also. It was, accordingly, pleaded in the reply to the said application that the loan accounts were classified as 'Non-Performing Asset' (NPA) on 09.11.2018 and without issuing any possession notice, the orders had been obtained from the District Magistrate.

4. It was further pleaded that the daughter-in-law of the petitioners had filed a civil suit against the petitioners as well as the respondent-Bank that the said property be restored in her favour. Apparently, the application under Order 7, Rule 11 CPC filed on behalf of the Bank was allowed and the plaint was rejected and the appeal also before the first Appellate Court met the same fate. Resultantly, RSA No.1175 of 2022 was filed before this Court wherein directions were issued for depositing a sum of Rs.10 lakhs on 30.05.2022 and the remaining by 15.07.2022 to cover the outstandings of Rs.42,42,872/-. Resultantly, the appeal was withdrawn on 02.08.2022 (Annexure P-6). Since these facts were mentioned in the order dated 30.05.2022 passed in the regular second appeal, which has been appended as Annexure P-6, accordingly, an impression was given before the Coordinate Bench by referring to the account statement that Rs.19,85,641.30 and Rs.22,57,230.70 stood deposited and therefore proceedings under the 2002 Act could not be resorted to and the interim order came to be passed on 21.08.2022, which reads as under:-

"Notice of motion for 07.02.2023.

Since respondent No.1 had received towards payment of the loan dues Rs.22,57,230.70 on 03.08.2022 and a further sum of Rs.19,85,641.30 on the same day towards the other loan dues and practically the entire amount claimed in the notice under Section 13(2) of the SARFAESI Act, 2002 thus, stood recovered, it is not permissible for respondent No.1 to take over physical possession of the secured asset without reviewing the status of the loans as per the RBI circulars. Therefore, there shall be stay of dispossession of the petitioner from the secured asset by the respondents until further orders."

5. The specific pleadings in the writ petition are that the full amount already stands paid and nothing is due and outstanding while referring to the two loan accounts mentioned above. The factum of other loan accounts were categorically not mentioned. The said pleadings are reproduced as under:-

"14.That the statement of account would also show that the amount has been deposited and credited to the account of the petitioner and thus the full amount towards the loan facility already stands paid, consequentially nothing remains due and outstanding against the petitioner. Copy of the statement of account bearing Housing Loan A/c No. 29700600002699 and Housing AAA Loan A/c No. 29700600002736 are attached herewith as Annexure P-7 & P-8. The statement of account shows the full amount deposited with the bank as follows:

--Housing Loan Account bearing no. 29700600002699, 03.08.2022 Rs. 22,57,230.70/-

-Housing AAA Loan Account No. 2970060000736, 03.08.2022 Rs.19,85,641.30/-.

15. That petitioner being aggrieved by the action of the bank in intiation of action for physical possession despite receipt of the full amount is challenged before this Hon'ble Court on following amongst other grounds."

6. In the reply filed by the respondent-Bank, it has been specifically mentioned that the true facts were deliberately concealed by giving an impression that the entire liability had been discharged in respect of the housing loan accounts. It was mentioned that there was a Cash Credit Account of M/s Suresh Kumar Brothers, which is the proprietorship concern of Suresh Kumar Gaba, wherein Rs.13 crores was the limit. It was also mentioned that a term loan of Rs.1.08 crore and term loan of Rs.12.88 lakhs were the other facilities and there was equitable mortgage also in respect of the said house against those accounts. The dues against the CC Limit was Rs.12,77,04,107.50 as on 31.12.2018. Against the first term loan the dues were of Rs.34,54,692.57, whereas against the second term loan the dues were of Rs.12,88,000/- as on 31.12.2018, taking the grand total to Rs.13,66,89,672.07.

7. In the reply filed there was also mention regarding the track record of the petitioners and their family as there were as many as 14 litigations initiated in the form of civil suits and miscellaneous applications either through daughter-in-law or through the other proprietorship concern or through Ankit Gaba, Neelam Rani and Suresh Kumar Gaba, details of which is annexed as Annexure R-5. The observations made by the learned Additional District Judge regarding the conduct of the petitioners while upholding the order rejecting the plaint, vide order dated 21.05.2022 (Annexure R-6), out of which the regular second appeal had arisen, read as under:-

"11. Prima-facie, the appellant/plaintiff by one way or the other is instituting different litigations to install the further action for recovery being taken by the respondent No.4. She is not the borrower and the borrowers are the respondents No.1 and 2. It is open for the borrower to file an appeal under section 17 of the Act before Debt Recovery Tribunal (DRT) against the measures being taken under section 13(4) of the SARFAESI Act and thus, the borrower cannot file suit for injunction in view of the bar provided in section 34 of the Act but in the given facts and circumstances of the case, it is clear that the appellant/plaintiff is acting at the behest of her husband and the respondents No.1 and 2 i.e. the borrower(s) and guarantor(s) who are her parents-in-laws, to seek the remedy of injunction which is otherwise barred under the SARFAESI Act. The alleged plea of matrimonial dispute is not substantiated with any documentary evidence and even otherwise, the appellant/plaintiff and the respondents No.1 to 3 are stated to be residing under the same roof in the same house. At this stage, this Court does not deem appropriate to go into the merits of the proceedings/orders being passed by the District Magistrate, Kurukshetra."

8. The respondent-Bank has also appended the notice issued under Section 13(2) of the 2002 Act to M/s Suresh Kumar & Brothers through the proprietor Suresh Kumar Gaba of even date 03.01.2019 (Annexure R-2), wherein the demand of Rs.13,24,46,800.07 was made, as mentioned in the written statement now, which was also regarding the mortgaged properties including House No.288, Sector-7, Urban Estate, Kurukshetra. Consequently, notice dated 25.03.2019 (Annexure R-7) had also been issued under Section 13 (4) of the 2002 Act, wherein demand of Rs.42,42,872/- was made, but apparently was not referred to in the writ petition. An impression was given that there was only Rs.42 lakhs outstanding, which had been duly paid, as per the bank statements and the civil litigation initiated by the daughter-in-law. Resultantly, the Coordinate Bench was persuaded to grant stay of dispossession.

9. The dishonesty and the concealment is apparent in as much as now in the reply filed to the application for vacation of stay also notice issued under Section 13 (4) for Rs.13 crores etc. has come on record as Annexure A-1 colly. Had these facts been known to the Coordinate Bench, stringent conditions would have been put as such to pay some of the outstandings at least. An effort was made to conceal the factum of other loans taken against which there are huge outstandings. In such circumstances, we are constrained to observe that the writ petitioners are not entitled for the benefit of any further hearing in view of the settled law.

10. The Apex Court has time and again laid down the principles that the Writ Court while exercising its extra-ordinary jurisdiction would not hear a person on merits, if there is suppression of material facts. It was held that disclosure of true, complete and correct facts was a very basis of the writ jurisdiction. Relevant observations made in the judgment passed in Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449, read as under:-

"32. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

xxxxxxxxxxxxxxxx

34. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

11. The said view was, thereafter, followed in Dalip Singh v. State of Uttar Pradesh and others, (2010) 2 SCC 114 wherein also the writ petitioner had not stated the correct facts before the High Court and delayed the benefit of the surplus land which was to go to the landless poor persons. It was, accordingly, held that the case belongs to category of persons who not only attempt, but have succeeded in polluting the course of justice and mislead the Court, no case for interference would be made out. It was also held that a misleading fact was put forward before the High Court and the appellant had succeeded in persuading the Court to pass an order which had resulted in frustrating the efforts made by the concerned authority regarding the distribution of the surplus land.

12. Resultantly, the present writ petition is dismissed with costs of Rs.1 lakh to be deposited with the PGI Poor Patient Welfare Fund within a period of 4 weeks from today. In case the needful is not done, the District Magistrate, Kurukshetra shall recover the amount from the petitioners by taking steps under the Punjab Land Recovery Act. The report be submitted by the District Magistrate, Kurukshetra after the amount has been recovered and duly deposited. All pending civil miscellaneous applications also stand disposed of.

 

Yashdeep Chahal v. Union of India, (Delhi)(DB) (24.01.2023) : State directed to set-up one-stop centers in every District in compliance of the judgment of the Apex Court in Nivedita Jha v. State of Bihar

DELHI HIGH COURT

(DB)

Before:- Satish Chandra Sharma, CJ and Subramonium Prasad, J.

 

W.P.(C) 12787 of 2019 & CM APPL. 52252 of 2019. D/d. 24.01.2023.

 

Yashdeep Chahal - Petitioner

Versus

Union Of India & Ors. – Respondents

 

For the Petitioner:- Mr. Chirag Madan, Mr. G Sai Krishna Kumar, Ms. Ravleen Sabarwal, Ms. Smirdhi Sharma, Mr. Deepesh Bahadur, Advocates.

 

For the UOI:- Mr. Chetan Sharma, ASG with Mr.Ajay Digpaul, CGSC, Mr. Amit Gupta, Mr. Kamal Digpaul, Mr. Sahaj Garg, Ms. Swati Kwatra, Advocates.

 

For the Respondent No. 3:- Mr. Nitin Sharma, Mr. Sumant Narang, Mr. Ranjeet Singh Sindhu, Ms. Nisha Bhambani, Mr. Rajat Arora, Ms. Mariya Shahab, Advocates.

 

For the Respondent No. 4:- Mr. Atul Batra, Mr. Kundan Mishra, Advocates.

 

For the Respondent No. 5:- Mr. Shahrukh Ejaz, Ms. Harnek Kaur, Advocates.

 

For the Respondent No. 7:- Mr. Tejas Karia, Mr. Gauhar Mirza, Ms.Amee Rana, Mr. Thejesh Rajendran, Advocates.

 

For the Respondent No. 8:- Mr. Saransh Jain, Ms. Shloka Narayanan, Mr. Abhishek Kumar, Ms. Sneha Dey, Advocates.

 

For the Respondent:- Ms. Rebecca John, Senior Advocate (Amicus Curiae) with Mr. Chinmay Kanojia, Ms. Praavita Kashyap, Ms. Adya R Luthra, Ms. Anushka Baruah, Advocates.

 

Criminal Procedure Code, Section 327 - Indian Penal Code, 1860 section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, 376DA, section 376DB, section 376E

 

Cases Referred :-

Nipun Saxena v. Union of India, (2019) 2 SCC 703

Nivedita Jha v. State of Bihar, 2018 SCC OnLine SC 1616

 

JUDGMENT

Subramonium Prasad, J. - The instant PIL has been filed highlighting the disclosure of the identity of a victim of gang-rape that took place in Hyderabad in November, 2019. It is stated that while covering the incident, the media houses have disclosed the name of the victim, her photographs along with other personal information. The Writ Petition has been filed with the following prayers:

"(i) To allow this Writ Petition;

(ii) To direct the respondents to initiate appropriate proceedings against the media houses and reported individuals in accordance with the law.

(iii) To issue fresh composite directions to the respondents to prevent the exposure of identity on online platforms, either directly or indirectly, extent of blurring required in publishing pictures and to ensure awareness regarding their due compliance.

(iv) To issue directions to prohibit the publication of pictures of the accused even before the trial has begun in the case.

(v) To direct the investigation authorities to conduct themselves in a restricted manner so as to prevent the supply of information on the merits of the case to the media and common public before the investigation is complete.

(vi) To order immediate inquiry against the officers who have failed to take cognizance of these violations taking place in their presence and notice and who have indulged in supply of information to the media.

(vii) Pass any other order as it deems fit."

2. The Courts have been concerned about the disclosure of the identity of a victim of rape and sexual harassment, and have been passing various orders to ensure the concealment of their identities so as to ensure they do not face any form of ostracisation. The 84th Law Commission Report, 1980, recommended introduction of a provision under the Indian Penal Code whereby the disclosure of identity of a victim of certain offences was made an offence. The Bill to amend the Indian Penal Code was introduced in August, 1980 and the Criminal Law Amendment Bill was moved in 1983. Various amendments have been made to the Indian Penal Code through the said amendment, including insertion of Section 228A which, after many amendments, as on date reads as under:

"228A. Disclosure of identity of the victim of certain offences etc.-

(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is-

(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or

(b) by, or with the authorisation in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim:

Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.

Explanation.-For the purposes of this sub-section, "recognised welfare institution or organisation" means a social welfare institution or organisation recognised in this behalf by the Central or State Government.

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

Explanation.-The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section"

3. Section 228-A IPC makes the offence of disclosing the identity of any person against whom an offence under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB and Section 376E has been committed, a cognizable, bailable, non-compoundable offence, and provides that the person committing such an offence shall be punished with imprisonment for two years and shall also be liable to fine.

4. Amendments have also been made to Section 327 Cr.P.C to ensure that the name of the victim of an offence under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB and Section 376E IPC is concealed. Section 327 Cr.P.C reads as under:

"Section 327: Court to be open

1. The place in which any criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room building used by the Court.

2. Notwithstanding anything contained in Sub-Section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860) shall be conducted in cameral:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court.

Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

3. Where any proceedings are held under Sub-Section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court.

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties."

5. Though the general law is that the proceedings of a Court are always conducted in an open Court, however, inquiry or trial of offences under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB and Section 376E are to be conducted in camera to protect the privacy of the victim.

6. A Writ Petition was filed in the Apex Court seeking directions to ensure that victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unfortunate ridicule, social ostracisation and harassment. The Apex Court, in Nipun Saxena v. Union of India, (2019) 2 SCC 703, after considering Section 228A IPC and Section 327 Cr.P.C, observed as under:

"11. Neither IPC nor CrPC define the phrase "identity of any person". Section 228-A IPC clearly prohibits the printing or publishing "the name or any matter which may make known the identity of the person". It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase "matter which may make known the identity of the person" does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law-makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.

12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. In this regard, we may make reference to some ways and means where the identity is disclosed without naming the victim. In one case, which made the headlines recently, though the name of the victim was not given, it was stated that she had topped the State Board Examination and the name of the State was given. It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village, etc. is clearly visible. This also amounts to disclosing the identity of the victim. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

*****

16. The vexatious issue which troubles us is with regard to the next of kin of the victim giving an authority to the Chairman or the Secretary of recognised welfare institutions or organisations to declare the name. As per the materials placed before us till date neither the Central Government nor any State Government has recognised any such social welfare institutions or organisations to whom the next of kin should give the authorisation."

7. The Apex Court made it clear that the authorities to which identity is to be disclosed by the victims when samples are taken from her body, namely, when medical examination is conducted, when DNA profiling is done, when the date of birth of the victim has to be established by getting records from school, etc., are sent, are also duty-bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court. The Apex Court also considered the issue with regard to the next of kin of the victim by providing that no such authorisation shall be given by the next of kin to anybody other than the Chairman or the Secretary of any recognised welfare institution or organisation. Since there was no regime in position, the Apex Court while exercising its jurisdiction under Article 142 of the Constitution of India, directed that if the Government wants to actually act under Section 228-A(2)(c) IPC, it must, before identifying such social welfare institution or organisation, clearly lay down some rules or clear-cut criteria in this regard as to what should be the nature of the organisation, how should the application be made, and in what manner that application should be dealt with. While discussing Section 228-A(3) of the IPC, the Apex Court has held that IPC clearly lays down that nobody can print or publish any matter in relation to any proceedings falling within the purview of Section 228-A and in terms of Section 327(2) CrPC. It held that these are in-camera proceedings and nobody except the presiding officer, the court staff, the accused, his counsel, the public prosecutor, the victim, if she wants to be present or the witness should be present and that there can be no reporting of such cases. The Apex Court has categorically stated that the press can report that the case was fixed before court and some witnesses were examined, it can also report as to for what purpose the case was listed but it cannot report what transpired inside the court or what was the statement of the victim or the witnesses. The Apex Court was categorical in holding that the evidence cannot be disclosed. The Apex Court, thereafter, laid down the following directions:

"50.  In view of the aforesaid discussion, we issue the following directions:

50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

50.2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorisation of the next of kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.

50.3. FIRs relating to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E IPC and the offences under Pocso shall not be put in the public domain.

50.4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.

50.5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.

50.6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty-bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.

50.7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228-A(2)(c) IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) and lays down criteria as per our directions for identifying such social welfare institutions or organisations.

50.8. In case of minor victims under Pocso, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.

50.9. All the States/Union Territories are requested to set up at least one "One-Stop Centre" in every district within one year from today."

8. It transpires that even though the decision in Nipun Saxena (supra) was rendered by the Apex Court on 11.12.2018, the directions contained in paragraphs 50.7 and 50.9 have yet not been complied with. We are, therefore, directing the GNCTD to act under Section 228-A (3) IPC and lay down the criteria as directed by the Apex Court. The State is also directed to set-up one-stop centers in every District in compliance of the judgment of the Apex Court in Nivedita Jha v. State of Bihar, 2018 SCC OnLine SC 1616. In fact, the State Governments are already in contempt in not adhering to the time limit fixed by the Apex Court in setting up such centers within one year from the date of the judgment passed by the Apex Court which was passed on 11.12.2018.

9. Coming to the facts of this case, it has been informed by Ms. Rebecca John, learned Senior Advocate who has been appointed as an Amicus Curiae in the instant case to assist the Court, that a similar issue regarding compensation to the victims and criminal action under Section 228-A IPC is pending before the High Court of Telangana in a batch of petitions in Criminal Writ Petition No.182/2019 etc. Since a similar issue is pending before the Telangana High Court, this Court does not find it appropriate to initiate proceedings against media houses and reported individuals or to direct the investigating authorities to take cognizance of the offence.

10. We express our appreciation to Ms. Rebecca John who has spent a lot of time on collating the development of law on this subject, the position of law in other countries, and has given a lot of valuable suggestions and assisted this Court.

11. With these observations, the Writ Petition is disposed of, along with pending application(s), if any.

 

Once a person has been declared to be a proclaimed offender, what recourse is available to him under the law? The order under Section 82(4) declaring accused person a proclaimed offender is not an interlocutory order: P&H High Court. Avtar Singh v. Harminder Singh Kang, (Punjab And Haryana) (23.11.2016)

PUNJAB AND HARYANA HIGH COURT

Before:- Fateh Deep Singh, J.

CRM-M No.12547 of 2016, CRM-M No.21891 of 2014, CRM-M No.15394 of 2016, CRM-M No.8701 of 2016, CRM-M No.3451 of 2016, CRM-M No.21686 of 2016, CRM-M No.19357 of 2016, CRM-M No.3824 of 2016, CRM-M No.19308 of 2014 (O&M), CRM-M No.43371 of 2015, CRM-M No.16762 of 2016, CRM-M No.44285 of 2015, CRM-M No.26370 of 2015, CRM-M No.26746 of 2015, CRM-M No.5341 of 2016, CRM-M No.2508o 2016, CRM-M No.14238 of 2016, CRM-M No.5470 of 2016, CRM-M No.7098 of 2016, CRM-M No.5793 of 2016, CRM-M No.40522 of 2015, CRM-M No.2317 of 2016, CRM-M No.4776 of 2016, CRM-M No.7272 of 2015, CRM-M No.13004 of 2016 (O&M), CRM-M No.14245 of 2016, CRM-M No.8071 of 2016, CRM-M No.25835 of 2015, CRM-M No.17061 of 2016, CRM-M No.12525 of 2015, CRM-M No.17878 of 2016, CRM-M No.16847 of 2016, CRM-M No.12394 of 2016, CRM-M No.5311 of 2016. D/d. 23.11.2016.

Avtar Singh And Others - Petitioners

Versus

Harminder Singh Kang And Others – Respondents

For the Petitioners :- Mr. Pankaj Bali, Mr. Navkiran Singh, Mr. Sumit Jain, Mr.Vaibhav Narang, Mr. Sandeep S. Majithia, Ms.Satinder Kaur, Mr.Arvind Kashyap, Mr.Wazir Singh, Mr.Parminder Singh, Mr.Dinesh Trehan, Ms.G.K. Mann, Mr.Mohd. Arshad, Mr.Gurmeet Singh, Mr.R.S. Ghuman, Mr.Vivek Goel, Mr.C.M. Munjal, Mr.Aman Pal, Mr. J.S. Jaidka, Mr. Mansur Ali, Mr. M.K. Sood, Mr. Roopak Bansal, Mr. Vijay Lath, Mr. R.K. Bajaj, Mr. Veneet Sharma, Mr. Sandeep Jain, Mr. Kartik Gupta, Mr. Ramesh Sharma, Mr. P.S. Sullar, Mr. M.S. Virdi, Advocates.

For the private Respondents :- Mr. Gaurav Tyagi, Mr.GBS Dhillon, Advocates.

For the State of Punjab :- Mr. Gurveer Sidhu, Asstt. Advocate General, Punjab.

For the State of Haryana :- Mr. Munish Sharma, Asstt. Advocate General, Haryana.

Cases Referred :-

Amar Nath v. State of Haryana (1977) 4 SCC 137

Deeksha Puri v. State of Haryana 2013 (1) RCR (Criminal) 159

Dhariwal Tobacco Products Ltd. v. State of Maharashtra 2009 (1) RCR (Criminal) 677

Gorle S. Naidu v. State of A.P. AIR 2004 Supreme Court 1169

Harbans Singh Gill v. State of Punjab 2008 (4) RCR (Criminal) 447

Kamaljit Singh v. State of Punjab (CRM-M-15696-2011 decided on 18.07.2011)

Kuljinder Singh v. State of Punjab (CRM-M-20318- 2011 decided on 19.07.2011)

Lavesh v. State (NCT of Delhi) 2012(4) RCR (Criminal) 240

M/s Pepsi Foods Ltd. v. Special Judicial Magistrate 1997(4) RCR (Criminal) 761

Madhu Limaye v. State of Maharashtra 1978 AIR (SC) 47

Megh Singh v. State of Punjab 2003 (4) RCR (Criminal) 319

Mehnga Singh v. State of Punjab 2002 (2) RCR (Criminal) 501

Mohit @ Sonu v. State of Uttar Pradesh 2013(3) RCR (Criminal) 673

Prabhu Chawla v. State of Rajasthan 2016(4) RCR (Criminal) 270

Puneet Sharma v. State of Punjab (CRM-M-1222-2013 decided on 10.04.2013)

Rajan Rai v. State of Bihar 2005 (4) RCR (Criminal) 885

Rajendra Kumar Sitaram Pande v. Uttam 1999 AIR (SC) 1028

Roku Sandhu v. State of Punjab 2012 (4) AICLR 758

State of Haryana v. Ch.Bhajan Lal 1992 AIR SC 604

State of Madhya Pradesh v. Pardeep Sharma 2014 (1) RCR (Criminal) 269 SC

State of Punjab v. Davinder Pal Singh Bhullar 2012(1) RCR (Criminal) 126

Subhash v. State of Punjab 2012 (2) RCR (Criminal) 514

Urmila Devi v. Yudhvir Singh 2013(4) RCR (Criminal) 899

JUDGMENT

Fateh Deep Singh, J. - The above detailed bunches of four lots of factually varying petitions, all preferred under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, 'Cr.P.C.') praying for the exercise of inherent powers seeking quashment of the respective orders declaring the petitioners therein in each of these petitions as "proclaimed offenders" have come about to be consolidated and disposed off together and on account of different views diametrically opposed to each other having been canvassed before this Court by the respective counsel have necessitated this Court to take up all these matters co-jointly with an effort to bring about uniformity in the disposal of such matters, as over a period of time and by such divergent expression of opinions on the point of law is making the things all the more unclear rather than bringing about clarity on law to enable the Courts to comprehensively address the relative grievances of each of such placed persons and thus, facilitate dispensation of justice in the right earnest thereby clearing the cobwebs that have come about over these decisions.

2. In the first lot, the petitioners though while residing within the respective territorial jurisdiction of the concerned Courts in the country well detailed in their particulars, have been declared as proclaimed offenders; whereas in the second lot the primary grievance is that the petitioners even prior to the occurrence and registration of the FIR in terms of Section 154 Cr.P.C., 1973 were putting up out of the country, miles and miles away from concerned Courts and the places of occurrence; and the third lot arose from where there have been legal infirmities in the orders declaring these petitioners as proclaimed offenders and the fourth lot of petitions are aligned to the persons who being fully aware and having participated in the process of investigations/trial have intentionally subsequently remained away from arms of the law and were termed to be so.

3. Before venturing into the relative merits of the case of different sets of petitioners, it would be inthe fairness of things if relevant provisions of law, statutory as well as case law, are taken note of as it will facilitate better understanding and solving this legal maze and getting out of this imbroglio.

4. With the advent of Code of Criminal Procedure, 1973, the primary object of the framers was to bring about uniformity in criminal procedure as earlier there was no uniform law of criminal procedure for whole of the country. Thus, with that end in view there have been innumerable amendments not only primarily to solve this ever-growing problem but also with an intent to simplify the procedure and also to expedite the trials before the criminal Courts. Though with all sincerity and best of the efforts, draft of the Cr.P.C. has been tried to be made easier, simpler and more systematic but still certain "grey areas" remain to be addressed and for which over a period of time, the Law Commission has been making repeated recommendations, thus an effort to make the procedure of criminal Courts as well as criminal delivery system more efficacious and effective.

5. Chapter V of Cr.P.C. deals with arrest of persons and Section 41 of it lays down the procedure when the police may arrest a person without warrants. Under these provisions, a police officer has been given wide powers to arrest any person without warrant or without an order from a Magistrate when that person commits a cognizable offence or against whom there is a reasonable complaint based on credible information raising reasonable suspicion of having committed a cognizable offence and the police officer deems it essential to arrest such a person not only to prevent him from committing any further such offence but also with an aim for proper investigations and preventing such person from eroding the evidence so available against that person as well as to ensure that he may not abscond. With the amendment of Cr.P.C. with effect from 01.11.2010, Section 41-A has been added enabling such a police officer on receipt of credible information against any person and harboring a reasonable suspicion that the person has committed a cognizable offence, to issue him a notice to appear before the concerned police officer at a place and time so necessitated and it shall be the duty of that very person to ensure due compliance and in case it is so necessitated to arrest him.

6. Section 41-B of Cr.P.C. provides a procedure of such an arrest with duties which such an officer arresting a person is bound to perform. It needs to be reiterated here that with the provisions of section 42 of Cr.P.C., 1973 it is necessitated that whenever a person is accused of having committed a non-cognizable offence, he is under a legal obligation to give his name and residence to facilitate his whereabouts which would enable the police officer to bring about better investigations as and when required and in case of failure to do so or giving of a wrong address entails arrest of the person or execution of a bond on that very reasons.

7. sections 47 and 48 of Cr.P.C., 1973 empower such a police officer for search of the place so authorized the police officer carrying an authority to do so as well as the pursuit of offenders in other jurisdictions at any place anywhere in the country in India.

8. The following chart would picturise these procedural aspects for appreciating such statutory provisions of procuring the presence of a person accused of an offence.

 

9. Chapter VI has been provided with a definite purpose to lay down process to compel appearance of a person which may be by way of summons which could be in a manner as detailed under sections 62 to 69 of Cr.P.C., 1973 and in case the Court feels it so may issue warrants of arrest as provided in Part B of Chapter VI and the latter deals with the manner and procedure of issuance and execution of such warrants of arrest and by virtue of sections 70 to 81 of the Cr.P.C., 1973 different eventualities have been provided for and Section 70(2) makes it clear that every such warrant shall remain in force unless it is cancelled by the Court or until it is so executed. Therefore, by all this procedure, provisions have been well enshrined to lay a meaningful process so that there may be due adherence to the same except where there are certain exceptions provided for under any relevant law.

10. In Part C of Chapter VI, the procedure prescribed for making a proclamation and attachment has been laid down. Section 82 deals with an eventuality where a person fails in spite of issuance of warrants to put in appearance and tries to conceal himself, the Court may for the reasons if is of the opinion that warrants could not be executed, may publish a written proclamation thus requiring that person to appear on the time, date and place so specified therein. Section 82(2)(i) deals with the manner of publication of a proclamation. Section 82 Cr.P.C., 1973 is reproduced below to lay emphasis, which provides as follows:

"Section 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 Courthouse;

(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 subsection (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, 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.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Courtunder sub-section (4) as they apply to the proclamation published under sub-section (1)."

11. The same has to be followed by attachment of property of the person absconding in terms of section 83 of the Cr.P.C., 1973 and entertainment of claims and objections to attachment; release, sale and restoration of attached property and appeals from order rejecting an application for restoration of attached property. By another mode of such procedure, Part D of this Chapter has enacted rules regarding process prescribing issuance of warrants in lieu of or in addition to summons.

12. The law with a definite motive and purpose, to ensure that an absconding person does not hamper collection of evidence which may be of vital importance for the prosecution before the Court, has in its wisdom laid down provisions of Section 299 Cr.P.C., 1973 which empowers the Court where a person who is accused of an offence having absconded and there is no prospect of his arrest whereby the Court may record depositions of such witnesses which may prove to be evidence against him pertaining to that very allegation at the inquiry or trial and which lays down the value of such an evidence if that person subsequently is incapable of giving evidence and thus, adequately secures the evidence for the future records at the trial if so necessitated.

13. The law to strengthen due recourse to justice has brought about an amendment in the Indian Penal Code (in short, 'IPC') with effect from 23.06.2006 by introducing Section 174A of the IPC whereby failure of a person to appear in consequence of such a proclamation exposes him to imprisonment as well as fine or both. This amendment arms the Courts to help the investigating agencies without the possibility of violation of human rights.

14. A close look at the wording of this statutory provision makes it emphatically clear that the moment a person fails to comply with the proclamation issued under section 82(1) of the Cr.P.C., 1973 in not appearing at the time, place and date so detailed in the proclamation, would be subject to punishment with imprisonment or with fine or both and therefore, the moment he does not abides by such a proclamation an offence is deemed to have been committed in terms of this provision. The very purpose of bringing about an amendment by introducing such a punishment is purely with a view and intent to give the authorities and the Court more teeth to deal with such irresponsible persons who do not show respect for the law of the land and thus, by all means the moment that person undermines the sanctity of the law, he is deemed to have committed another cognizable offence exposing him to further punishment, may be by way of imprisonment or fine.

15. The million dollar question that has come to be addressed before this Court by a battery of lawyers representing various petitioners before this Court is if once a person has been declared to be a proclaimed offender, what recourse is available to him under the law?

16. Though with much fanfare, learned counsel for many of the petitioners have sought to impress upon the Court that Section 482 Cr.P.C., 1973 by way of exercise of inherent powers of the Court can by no means restrict the powers of the Court and which can be used without hesitation in such a given situation. In the light of the settled law laid down by the Hon'ble Supreme Court of India in 'State of Haryana and others v. Ch.Bhajan Lal and others' 1992 AIR SC 604, that such inherent powers are to be sparingly used in the rarest of the rare cases to meet the ends of justice and cannot be exercised merely at the asking of a party.

17. Though on behalf of one of the respondents, Mr.Gaurav Tyagi, Advocate has sought to place reliance on 'Roku Sandhu v. State of Punjab' 2012 (4) AICLR 758 and 'Subhash v. State of Punjab' 2012 (2) RCR (Criminal) 514 wherein this Court in a Single Bench view has sought to lay down the proposition that normally a person who is declared as proclaimed offender is required to first move the Court which declared him so and raise all such objections including the very legality and validity of a proclamation so issued against him and that unless the petitioner submits himself to the jurisdiction of the said Court which has declared him so and seeks relief against the order declaring him to be a proclaimed offender, a petition under Section 482 Cr.P.C., 1973 is not maintainable, and further has placed reliance on 'Mehnga Singh v. State of Punjab' 2002 (2) RCR (Criminal) 501 to bring about thrust in his arguments that normally in such a situation the proclaimed offender needs to appear before the Court concerned and challenge with reasonableness the order declaring him to be a proclaimed offender and to show his justification.

18. Another facet, as sought to be brought about by one of the counsel representing respondents by placing reliance on 'Madhu Limaye v. State of Maharashtra' 1978 AIR (SC) 47 to enforce his views and submissions that since an order declaring a person to be a proclaimed offender is an interlocutory order and therefore, even a revision does not lie against such an order.

19. To supplement the submissions of Mr.Gaurav Tyagi, Mr.Gurveer Sidhu, Assistant Advocate General, Punjab representing the State has placed reliance on 'Lavesh v. State (NCT of Delhi)' 2012(4) RCR (Criminal) 240; 'Puneet Sharma v. State of Punjab and another' (CRM-M-12222013 decided on 10.04.2013); 'Kuljinder Singh v. State of Punjab and others' (CRM-M20318- 2011 decided on 19.07.2011); 'Kamaljit Singh v. State of Punjab' (CRM-M-15696-2011 decided on 18.07.2011) and 'Deeksha Puri v. State of Haryana' 2013 (1) RCR (Criminal) 159 to impress upon the Court that where a person absconds and conceals himself to warrants of arrest and order declaring him proclaimed offender, is not either entitled to relief of anticipatory bail under Section 438 Cr.P.C., 1973 nor if there is no infirmity in the order under Section 82 Cr.P.C., 1973 can seek quashment of the same.

20. Not much benefit can be drawn by learned State counsel out of Kuljinder Singh's and Kamaljit Singh's case (supra) on account of factual disparity and different question of law involved. Though in Deeksha Puri's case (ibid) His Lordship of this Court has sought to draw a distinction between the various provisions of law including the one under Section 229A IPC which was brought about by way of amendment with effect from 23.06.2006 but that was purely for persons who have failed to appear after being released on bail on bonds to face the process of the Court. Though the conclusion drawn by cojoint reading of these provisions whereby it has been held that the moment a proclaimed offender is arrested or appears at the place and time required by the Court or surrenders before the Court or authority issuing warrants or proclamation, as the case may be, the order of declaration of proclaimed offender would cease to be operative. Certainly this Court with due apologies holds a different view that once at a given point of time an offence has been committed, any such subsequent event and in the present case arrest of the person or his surrender could not absolve him of the likely consequences arising out of the commission of offence under Sections 174A and 229A of IPC and thus, cannot wash off his criminal act and must under all means face the law and the consequences arising out of his such an act against the law.

21. The next question that comes to the mind of the Court, though not addressed in the submissions of learned counsel for the parties, is whether an order passed by virtue of Section 82(4) Cr.P.C., 1973 declaring a person to be a proclaimed offender falls within the definition of 'interlocutory order' or not and if so, whether a revision lies against such an order or the same can be addressed to by way of a petition under Section 482 Cr.P.C., 1973?

22. Though Cr.P.C. is totally silent as to the definition of the term 'interlocutory order' but over aperiod of time by various pronouncements a definite definition has crystallized where it means an order which is passed at some intermediate stage to a proceedings generally to advance the cause of justice for the final determination of the rights between parties and if it is so by virtue of Section 397(2) Cr.P.C., 1973 a revision against such an order is clearly barred. Though there has been divergent expression of opinions on this but one of the tests to be applied by the Courts as in the case of Madhu Limaye (ibid) "it is neither advisable nor possible to make a catalogue of orders to demonstrate which kind of orders would be final and then to prepare exhaustive list of those type of orders which fall in between the two". Therefore, to be an order rejecting the plea of the accused on a point which when accepted would conclude the particular proceeding cannot be termed to be an interlocutory and an order which may be conclusive with respect to the stage at which it is made shall not be treated as an interlocutory order and which was the definition assigned in the case of 'Amar Nath v. State of Haryana' (1977) 4 SCC 137. At the same time, Courts must ensure that any such mischief which may arise out of such narrow interpretation may not suppress the very spirit of the law and in the light of Heydon's Rule of interpretation such a definition needs to be confined and interpreted within the four corners of the spirit and letter of the law. Though this Court has suo-motu made much efforts to lay hands on any such guidance of the Hon'ble Supreme Court pertaining to cases of proclaimed offenders but none could be noticed which could be a guiding star in this endeavour to do justice to the petitioners before this Court and the ratios of this Court, as have been detailed in the foregoing paragraphs of this judgment, could not be of much help, and what one could finally conclude is that such an order declaring a person to be a proclaimed offender is certainly to the mind of this Court is an intermediate order which though had also evaded definition but their Lordships in 'Rajendra Kumar Sitaram Pande v. Uttam' 1999 AIR (SC) 1028 had held while interpreting the provisions of Section 397(2) Cr.P.C., 1973 to have been used in a restricted sense and not in a broad artistic sense holding that it merely denotes orders of purely interim or temporary nature which do not decide or touch important rights or liabilities of the parties and holding out that any order which substantially affects the rights of the parties cannot be said to be an interlocutory order and therefore giving a wider interpretation and liberal construction to the word 'interlocutory order' has termed it to be an intermediate or quasi-final order amenable to revision. As discussed above, the term 'interlocutory order' denotes orders of purely interim or temporary nature which do not decide or touch important rights or liabilities of the parties. The order under Section 82(4) is certainly not an interlocutory order reason being:

(1) The person who is declared as a proclaimed offender could be simultaneously prosecuted under Section 174A of IPC and he has to face separate trial for this offence which is not a compoundable offence.

(2) The Court can also under Section 83 Cr.P.C., 1973 attach the property belonging to proclaimed person.

(3) The Court can record evidence under Section 299 Cr.P.C., 1973 in his absence which certainly affects the right of fair trial because that particular evidence can be used against him.

(4) No finding or sentence is revisable by reason of error, omission or irregularity in proclamation order.

(5) A statement in writing by the Court issuing the proclamation shall be conclusive evidence that requirements of Section 82(2) have been duly complied with.

(6) And from another angle, this order declaring the accused as a proclaimed offender puts to halt the whole trial and cases are lingering for many years which ultimately is to the prejudice to the victims.

23. Therefore, on the basis of the above said reasoning it might be rightly concluded that order declaring a person as proclaimed offender is purely "intermediate or quasi-final" order which certainly touch the rights and liabilities of parties and thus amenable to revision.

24. However, in various pronouncements of this Court as well as Hon'ble the Supreme Court in 'Lavesh v. State (NCT of Delhi) 2012(4) RCR (Criminal) 240; 'State of Madhya Pradesh v. Pardeep Sharma' 2014(1) RCR (Criminal) 269 SC; 'Roku Sandhu v. State of Punjab' 2012(4) AICLR 758; and 'Harbans Singh Gill v. State of Punjab' 2008 (4) RCR (Criminal) 447 wherein all these ratios have been considered, an opinion has come forth by way of resultant effect that it is for the accused so declared to be a proclaimed offender, to first surrender before the Court and then to seek a relief and the Court consequent thereupon would evaluate and adjudge his merits for entitlement of such a relief being prayed for.

25. Thus from it all, it needs to be concluded that in not every order so impugned, challenge can be had to by the exercise of powers under Section 482 Cr.P.C., 1973 and where statutory remedies are available a party needs to first exhaust all these remedies and in case if still is aggrieved over it, is well within its rights to come to this court for invoking inherent jurisdiction and satisfying the conscience of the Court as to imminent necessity of showing indulgence thereto.

26. Though by all means it could not be put to question that powers under Section 482 Cr.P.C., 1973 of a High Court cannot be restricted by any means and wherever and whenever it is necessitated to advance the cause of justice such inherent powers can be exercised by the Court but the same has to remain within the realm of practical approach and that thereby not an occasion of overstepping the jurisdiction and powers of a Court to undo the purpose of law and the system.

27. The question for consideration is whether the High Court is justified in invoking its extraordinary powers under Section 482 Cr.P.C., 1973 in such type of situations.

28. In a catena of case law, reference of which can be taken note of 'State of Haryana and others v. Ch. Bhajan Lal and others' 1992 AIR SC 604, and 'State of Punjab v. Davinder Pal Singh Bhullar' 2012(1) RCR (Criminal) 126 of Hon'ble the Apex Court holding unbridled powers of the High Courts in the exercise of its inherent powers. But one needs to keep away from having a glance with tainted glasses at these provisions else it will render otiose statutory provisions by resorting to such exercise of inherent powers.

29. In an earlier view in the case of 'Mohit @ Sonu and another v. State of Uttar Pradesh and another' 2013(3) RCR (Criminal) 673 and in a subsequent view of the Hon'ble Supreme Court in 'Urmila Devi v. Yudhvir Singh' 2013(4) RCR (Criminal) 899 their Lordships were of the opinion that where there was any statutory provision available, the Courts must have recourse to that statutory provision and should restrain itself from going ahead by the exercise of its inherent powers under Section 482 Cr.P.C., 1973 In a diametrically opposed subsequent view of the Hon'ble Apex Court in 'Prabhu Chawla v. State of Rajasthan and another' 2016(4) RCR (Criminal) 270 their Lordships with due apologies have considered 'Dhariwal Tobacco Products Ltd. and others v. State of Maharashtra and another' 2009 (1) RCR (Criminal) 677 and Mohit @ Sonu's case (ibid) but it was never brought to the notice of their Lordships as to the ratio laid down in Urmila Devi's case (ibid) and it was the interpretation of sections 482 and 397 Cr.P.C., 1973 which was taken into consideration holding exercise of inherent powers where abuse of the process of the Court or other extraordinary situation excites Court's jurisdiction, but the limitation is 'self-restraint and nothing more' and thus, have sought to discourage repeated intervention of the High Courts in such matters and nothing bars the High Court to examine such matters in appropriate cases exercising its inherent powers and thus, have stressed on the opening wording of Section 482 Cr.P.C., 1973 which begins with non-obstante clause.

30. Though it cannot be laid down that availability of a remedy under Section 397 Cr.P.C., 1973 completely forbids exercise of powers under Section 482 Cr.P.C., 1973 but for the sake of judicial discipline impels this Court to hold that unless and until it is so warranted and where there is a case of extreme hardship and immediate need for showing indulgence and intervention by the Court, such an approach would be appropriate for the exercise of powers under Section 482 Cr.P.C., 1973 and which precisely had been laid down in Dhariwal Tobacco Products Ltd.'s case (ibid) that availability of a statutory remedy cannot be the sole determining factor to deny a relief under the provisions of Section 482 Cr.P.C., 1973 Similar was the opinion voiced in 'M/s Pepsi Foods Ltd. v. Special Judicial Magistrate' 1997(4) RCR (Criminal) 761 where reference was also taken note of the law laid down in Bhajan Lal's case (ibid) holding that exercise of powers under Section 482 Cr.P.C., 1973 would depend upon facts and circumstances of each case and which has to be exercised but with the sole purpose to prevent the abuse of the process of the Court.

31. Attention of this Court is repeatedly drawn to the broader principle that inherent powers of theHigh Court should not be invoked especially in case where the absconder himself is in conflict with law and knowingly disobeys the same. In the light of the rule that has come to evolve that 'justice is the insurance which we have on our lives and property, obedience is the premium which we pay for it' as has been remarked by Willam Penn, a famous philosopher and founder of the province of Pennsylvania hundreds of years ago.

32. Thus from it all, it flows that what trickles down from these various ratios, the legal position asto exercise of inherent powers of this Court though are sweeping and awesome but can only be invoked either to give effect to an order passed under the Cr.P.C. or to prevent any abuse of the process of the Court or otherwise to secure the ends of justice but at the same time these powers have to be exercised in an appropriate case to render justice, may be even beyond the law to something of a rarity, a sparingly wielded one. It would be totally justifiable for invocation of these extraordinary powers by the Court if after considering the bona fides which means the cleanliness of the hands of the seeker or if he is the fugitive having absconded from justice, has jumped bail without any reasonable and sufficiently excusable reason or for an ulterior purpose, to enable him to manipulate as to hostility of the witnesses or in any such improper conduct, may be a good ground justifying refusal by the Court to exercise such powers. Thus, to the mind of this Court in cases where a person has been declared as a proclaimed offender the element of conscience is the general principles that needs to be considered though cannot be exhaustively elaborated but broadly speaking has to be based on judicial wisdom, sagacity, sobriety and circumspection has to be pressed into service as to identify the rarest and exceptional cases where invocation of such an extraordinary inherent jurisdiction is warranted to bring about redressal to Courts and justice.

33. From these discussions, it flows the likely situations and their likely solutions which can come tothe aid of or against a person who has been declared a proclaimed offender by the exercise of powers under Section 82(4) Cr.P.C., 1973 which are only illustrative and not exhaustive and are as follows:

1. Where a person so declared was never within the knowledge of being arrayed as an accused and was never reasonably served with the process of the Court or in a situation where for obvious reasons in spite of being available had sought to be proceeded against on the basis of wrong and imaginary particulars of residency or may be residing abroad when the process against him was initiated. In such a case this Court is of the opinion that such an order declaring a person so placed in this situation to be having a bona fide case, a genuine grievance of a process having been undertaken against him at his back, contrary to the well enshrined principles of law and therefore, has every right to come to this Court under the aid of Section 482 Cr.P.C., 1973 as it is within the ambit where there is an exceptional circumstance to meet the ends of justice.

2. There could be persons who have been so declared who have knowingly and without anyjustifiable reasons, in spite of being served and aware of the proceedings before the authorities, have knowingly and intentionally evaded their appearance to attain sinister gains and thus, his intentions being impregnated with malice and fraud, the Court needs to discourage such persons for invoking the aid of Section 482 Cr.P.C., 1973

3. Proclaimed offenders so declared who have participated at one point of time in the processeither at the investigating stage, before the Court during remand or at the trial and for such placed persons the Court must look into the truthfulness and bona fide of his grounds what kept him away from the Court and after lifting the veil to come to a conclusion whether it was a knowingly conduct for some undue attainment of gain or may be for prolonging the proceedings the Court needs to discourage such persons for invoking the aid of Section 482 Cr.P.C., 1973

4. There could be a situation where the person for reasons beyond his control may be abereavement, a mental state where the person for reasons beyond his control is unable to appear and adhere to the process of the concerned agency, may be the investigating or the Court and if it is found to be so the Court has every reason to bring about the ends of justice taking into consideration the bona fide of the person, and may exercise such powers in appropriate cases where the ends of justice so demand.

5. Though not contemplated but a situation may crop up where a person for any of the abovesituations having been declared as a proclaimed offender can chose to get such an order nullified by effecting a compromise and without surrendering before the authorities in abide of the orders that have already been passed against him, though is quite difficult a situation, even if it is a situation where the person so declared has committed a compoundable offence what to talk of commission of non-compoundable offence, it would sub-serve and the law so demands that he needs to surrender before the law before he is entitled to any such relief and thus, if so covered by any of the above detailed categories, needs to have recourse to law, may be by challenging the very validity of the orders declaring him to be a proclaimed offender or surrendering himself before the law and can by no means keep himself away by seeking aid and protection by securing anticipatory bail under Section 438 Cr.P.C., 1973 purely on the basis of a compromise with the other side when it is the State against whom once he is declared to be a proclaimed offender, has much to hold at stake for administration of justice and law of the land and therefore, by no means can nullify such orders at the back of the State by entering into some sort of an arrangement by way of compromise with the opposite party, the victim or the complainant as the case may be.

6. Though in one of the petitions learned counsel for the petitioner has sought to assail anallied point that the principal accused has since been acquitted necessitates setting aside of the order declaring the petitioner to be a proclaimed offender as well as seeking his acquittal on the basis of that very judgment, certainly is too preposterous a preposition which is legally not tenable for which this Court seeks support from the ratio laid down by Hon'ble the Supreme Court in 'Rajan Rai v. State of Bihar' 2005 (4) RCR (Criminal) 885 where the principle of 'falsus in uno, falsus in omnibus' was taken into consideration holding that the same was inapplicable in this country and is only to be treated as a rule of caution. Reliance is also placed on another view of Hon'ble Apex Court in 'Megh Singh v. State of Punjab' 2003 (4) RCR (Criminal) 319, holding that acquittal of a co-accused does not by itself entitles the other accused in the same case to acquittal and therefore, in the light of ratio laid down in 'Gorle S. Naidu v. State of A.P.' AIR 2004 Supreme Court 1169 in all trials the appreciation of evidence in terms of Section 3 of the Evidence Act and credibility of the same has to be individually taken note of and therefore, to the mind of this Court mere acquittal of a coaccused in a trial does not per-se entitles the other co-accused who is facing separate trial to such a relief, squarely answers the contentions of the counsel for this petitioner and the unsoundness of his averments that since his co-accused stands acquitted entitles him to setting aside of such an order declaring him a proclaimed offender as well as his acquittal too. The same is thus brushed aside.

34. Since it has already been held by this Court in the foregoing paragraphs of this judgment thatan order declaring a person to be a proclaimed offender in other situations where there has been total adherence to procedure laid down under the law, especially in terms of Section 82(4) Cr.P.C., 1973 needs to challenge if so impugned by way of revision under the statutory provisions of Sections 397/401 Cr.P.C. and it is only in situations where there are exceptional circumstances as discussed herein, resort can be had to the inherent powers under Section 482 Cr.P.C., 1973 where apparently there is clear abuse of the process of the Court and the law.

35. It has also been brought to the notice of the Court during the course of arguments that someCourts though wrongly, are firmly of the view that such orders are not amenable to revision or cannot be recalled even if the person surrenders himself before the Court concerned which has declared him to be a proclaimed offender, is certainly a wrong and constricted approach. Where the person so declared surrenders before the Court concerned, the Court needs to consider his case for bail and adopt legitimate legal recourse as provided under the Cr.P.C. as may be necessitated thereafter. Thus, it would be appropriate for the Court concerned to recall such an order but its likely fallout in consequence thereof remaining intact after a person had surrendered so that it may not become an irritant by a mere entry into the police record maintained regarding proclaimed offenders which could have its own affects in the future course of time and the Courts need to be cautious to remove this imbroglio which may come in the way of leading a free life by that individual.

36. In the light of foregoing discussions and observations, this Court finally concludes that petitionsbearing CRM-M No.5341 of 2016; CRM-M No.2508 of 2016; CRM-M No.14238 of 2016; CRMM No.5470 of 2016; CRM-M No.7098 of 2016; CRM-M No.5793 of 2016; CRM-M No.40522 of 2015; CRM-M No.4776 of 2016; CRM- M No.7272 of 2015; CRM-M No.13004 of 2016; and CRM-M No.2317 of 2016 are hereby allowed and the respective impugned orders passed therein declaring the petitioners to be proclaimed offenders are hereby set aside by the exercise of powers under Section 482 Cr.P.C., 1973 directing them to appear and face the trial/process of law accordingly.

37. Petitions bearing CRM-M No.12547 of 2016; CRM-M No.21891 of 2014; CRM-M No.15394 of 2016;CRM-M No.8701 of 2016; CRM-M No.3451 of 2016; CRM-M No.21686 of 2016; CRMM No.19357 of 2016; CRM-M No.3824 of 2016; CRM-M No.19308 of 2014; CRM-M No.43371 of 2015; CRM-M No.16762 of 2016; CRM-M No.44285 of 2015; CRM-M No.14245 of 2016; CRM-M No.8071 of 2016; CRM-M No.25835 of 2015; CRM-M No.17061 of 2016; CRM-M No.12525 of 2015; CRM-M No.17878 of 2016; CRMM No.16847 of 2016; CRM-M No.12394 of 2016; CRM-M No.5311 of 2016; CRM-M No.26370 of 2015 and CRM-M No.26746 of 2015 are hereby dismissed. However, without extinguishing their respective rights under Sections 397/401 Cr.P.C. The petitioners therein are directed to surrender before the authorities and submit themselves before the law which would have its recourse in accordance with the prescribed procedure.

38. Thus, all these petitions are hereby disposed off in those terms. However, any observation made herein would have no bearing whatsoever on the final outcome of the cases pertaining to these petitioners.