IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : INDIAN PENAL CODE
CRL. MISC. ( C) No. 301/2007
Reserved on: 29.01.2007
Date of Decision: January 31, 2007
Gurdev Singh Kaler .......Petitioner
Through Mr.Vineet Bhagat, Advocate.
versus
State of NCT of Delhi ......... Respondent
Through - Nemo
JUSTICE SHIV NARAYAN DHINGRA
JUDGMENT
1. The petitioner, who was declared a proclaimed offender in case of FIR
Nos. 485 & 486 of 2002 P.S. IGI Airport, Delhi under Sections 420/468 & 471 of
IPC and Section 12 of Passport Act has preferred this petition under Section 482 of
Cr.P.C for quashing the aforesaid two FIRs and also made a prayer for stay on his
arrest and stay on further proceedings. It is claimed by the Petitioner that he was a
permanent resident of Bini Daraga Albay, in Philippines. He had been staying there
since 1984 and he was an Indian citizen holding Indian Passport issued on 3rd
October, 2002 by Indian Embassy Manila, Philippines valid upto 2nd October, 2012.
He has been wrongly charge-sheeted in the above two FIRs.
2. Brief facts relevant for the purpose of deciding this petition are that one
Boota Singh S/o Ram Singh and Sukhdeep Singh S/o Sohan Singh holding Indian
Passports approached for immigration clearance for departure to Philippines by flight
no. SQ 407. On scrutiny of their travel documents it was found that the Philippines
Visa No. 4960/02 dated 02.9.2002 stamped at page no. 5 of the passport of Boota
Singh and similar visa on passport of Sikhbir Singh were forged visas. The
application for non-immigration Visa of Embassy of Philippines held by them were
also found to be forged. Both were questioned and they disclosed that their visas
were arranged by an agent namely Pappa R/o Jagraon Mobile No. 9815076399 and
Mr. Binder, a relative of Pappa working in Jagraon Court. The deal was finalized for
Rs.3.5 Lac of which he had already paid Rs.3 Lac to Pappa in presence of Binder.
Pappa told that his maternal uncle was working in Phillipines and he would arrange
for his employment there. A case was registered under Section 420/468/471 IPC and
Section 12 of Passport Act for use of forged documents and cheating and further
investigation was done. After recording statement of witnesses and doing
investigation it was found that Gurdev Singh, petitioner, who is maternal uncle of
Binder. Binder and Pappa all the three had assured Boota Singh and Sukhdeep Singh
about sending them to Philippines and taken Rs.3 Lac each from both of them.
Gurdev Singh had come to India and he had met victim Boota Singh in company of
Pappa @ Parminder and Binder and assured of getting them employed in Philippines
and a deal was struck for Rs.3.5 Lac for each person in his presence. Sohan Singh
made statement that it was Binder, who used to work in the Court and prepared
forged documents and Gurdev Singh used to take care of the person in Philippines
and they had earlier also arranged for immigration of persons to Philippines.
Initially, Gurdev Singh, Pappa and Binder - all the three accused could not be
arrested. They were not traceable at their village and addresses in Ludhiana. The
proceedings were initiated against all the three persons under Section 82 and 83 of
Cr.P.C. Later on Binder, one of the proclaimed offenders, was arrested and a
supplementary challan was filed against him. The present petitioner being abroad
could not be arrested.
3. The Petitioner in his petition has stated that the criminal proceedings
against him were wrongly initiated without any of his fault or knowledge. He knew
co-accused Binder Singh S/o Shri Bant Singh and Pappa @ Parminder Singh S/o Shri
Jarnail Singh, both residents of Ludhiana since, they were his relatives but he denied
being in conspiracy with them in the alleged offence. It is stated that except family
relations he had no other relationship with these two. He had no idea why his name
was dragged in the unlawful act. He stated that during police investigation and
criminal proceedings in the Trial Court except the confessional statement of co-
accused there was no other incriminating evidence. He had no knowledge about the
two victims viz. Sukhbir Singh and Boota Singh.
4. It is not the case of the petitioner that he was not in India when the
offence was committed and money was taken from the two victims, who were also
accused in the case and who disclosed about the persons, who were involved. His
two relatives who were involved in this case also absconded soon after committing of
offence and one of them could be arrested only after more than three years and a
supplementary challan was filed against him.
5. Absconding and not appearing despite proclamation is itself an offence
under Section 174 A of IPC, punishable with imprisonment upto three years and fine.
The Petitioner, though declared proclaimed offender long back has not approached
the Trial Court and nor sought bail from the Trial Court.
6. While exercising powers under Section 482 of the Cr. P.C. the Court has
to keep in mind that it should not ordinarily embark upon an enquiry whether the
evidence in question is reliable or not or whether on a reasonable appreciation of it
accusation would not be sustained. This is a function of the Trial Court. Though the
judicial process should not be an instrument of oppression or needless harassment but
the Court should be circumspect and judicious in exercising discretion and should
take all relevant facts and circumstances in consideration before issuing process
under Section 482 lest the Section becomes an instrument in the hands of accused
persons to claim differntial treatment only because the accused persons can spend
money to approach higher forums. This Section is not an instrument handed over to
an accused to short circuit a prosecution and bring about its sudden death.
7. The scope of the exercise of power under Section 482 of the Court has
been extensively considered by the Apex Court in several cases. Recently in 2006
Cr.L.J. 4050 CBI v. Ravi Shanker Srivastava, IAS and Anr., the Apex Court has
surveyed the earlier legal position as laid down in State of Karnataka v. Bhajan Lal
AIR 1992 SC 604 and has emphasized and issued a note of caution that the power
should be exercised sparingly and that too in rarest of rare cases. The Court observed
that it would not be proper for the High Court to analyze the case of complainant in
light of all probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that proceedings are to be
quashed. It would be erroneous to assess the material before it and conclude that
complaint cannot be proceeded with. If the allegations set out in the complaint do
not constitute the offence of which cognizance has been taken by the Magistrate, it is
open to the High Court to quash the same in exercise of the inherent powers under
Section 482. However, in case of FIR the Court has to see that despite the entire
evidence collected by the prosecution no case is made out against the petitioner.
8. In the present case, the petitioner absconded he did not help the
prosecution in investigation of the case. Had he helped in investigation, it would
have been revealed whether he was in India at that time or not. His bank account in
India and bank accounts of his relatives would have revealed whether any deposits
were made in the bank accounts during those days or any transaction in property had
taken place to invest the money received from the victims, but the accused and his
relatives chose to become absconders and did not help the investigation of the case.
9. Since accused is a Proclaimed Offender, I consider he should have
approached Trial Court for grant of bail and setting aside Section 82 Cr.P.C.
proceedings. In 1988(2) Crimes 685 Vinod Kumar Khanna v. State this Court had
occasion to consider a petition under Section 482 for quashing the order of the CMM
issued under Section 82 of the Cr. P.C. This Court observed that if the petitioner
being citizen of India and having warrants of arrest issued against him evading arrest
by not coming to India at the earliest to face the Criminal Court he should be treated
as an absconder for issuing of a proclamation under Section 82 and there was no
ground to interfere. In 2002 (6) Scale 177 Jagtar Singh v. Satendra Kaur @ Bhavana
Grover and Ors. Supreme Court observed normally, when the accused are
absconding there was no question of granting anticipatory bail. In 2002 (2) JCC
(SC) 785 Shri Mahavir Prashad Gupta and Anr. v. State of NCT of Delhi Supreme
Court held that it would not be proper to embark upon an enquriy as to the reliability
or genuineness or otherwise of the allegation made in the FIR or complaint in
proceedings under Section 482.
10. The Petitioner in this case had not made any application to the Trial
Court for cancellation of his warrants and recalling the order under Section 82 of Cr.
P.C. The Petitioner had this option before him the claim of the petitioner that there
was no evidence against him is belied from the fact that the victim's father were the
witnesses of handing over money. There is admission that the other two accused
persons were related to the petitioner. The Petitioner was working in Philippines and
forged Visa was of Philippines. He has not denied his presence in India when the
deal was struck. It cannot be said that it is a case where trial cannot proceed or no
offence prima facie is made out. This Court cannot analyze the entire evidence to
come to conclusion whether a conviction is probable or not, that, in fact, would
amount to by passing the Trial Court and not giving an opportunity to the prosecution
to prove its case as per law and the procedure laid down.
11. I consider it is not a fit case where this Court should exercise power
under Section 482 Cr.P.C. Accordingly, the petition is hereby dismissed.
Sd/-
SHIV NARAYAN DHINGRA,J.
