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2012 SCC OnLine Del 66 : (2012) 2 MWN (Cri) DCC 18
In the High Court of Delhi
(BEFORE MUKTA GUPTA, J.)
Maneesh Goomer .…. Petitioner
Mr. Sidharth Aggarwal, Mr. Simon Bengamin, Adv.
Versus
State .…. Respondent
Mr. Manoj Ohri, APP for State with ASI Satbir Singh PS Farsh Bazar.
Crl. M.C. No. 4208/2011
&
Crl. M.A. 19453/2011 (stay)
Decided on January 4, 2012
The Judgment of the Court was delivered by
MUKTA GUPTA, J. (Oral)
1. By the present petition the Petitioner seeks quashing of FIR No.
14/2011 registered under Section 174-A IPC at PS Farsh Bazar.
2. Before adverting to the facts of the case it may be noted that the
Petitioner had earlier filed a W.P. (CRL) 412/2011 before this Court with
the same prayer seeking quashing of the abovementioned FIR and the
proceedings arising therefrom. The said writ petition came up for
hearing before this Court on 25th March, 2011 when notice was issued
and the Respondent/State was directed to file a reply. The matter was
th
listed on 18 July, 2011 after a status report was filed by the State. On
th
18 July, 2011 after the matter was heard, learned counsel for the
Petitioner realizing that the Court was not inclined to grant any relief,
sought leave to withdraw the said petition, which was permitted to be
withdrawn.
3. On a preliminary issue regarding the maintainability of the
present petition posed to the learned counsel for the Petitioner, reliance
is placed on Daryao v. State of U.P. AIR 1961 SC 1457 to contend that
if a petition is dismissed as withdrawn, it cannot be a bar to a
subsequent petition under Article 32 of the Constitution because in
such a case there has been no decision on the merits by the Court. No
doubt it would not constitute a bar of res-judicata but certainly
propriety does not permit the Courts to entertain repeated petitions for
the same prayer when the Petitioner as seeing that no relief is being
granted, cleverly withdraws the petition.
4. Learned counsel for the Petitioner contends that a complaint under
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Section 138 Negotiable Instruments Act (in short N.I. Act) was filed
against the Petitioner. During the said proceedings summons were not
served on the Petitioner and without service of summons, the next
process of issuing warrants and non-bailable warrants were resorted to.
Even the procedure adopted under Section 82 Cr.P.C. was illegal as the
proclamation was not published in the newspaper “The Statesman” as
directed by the Court but in another news daily. Further the statutory
time of 30 days notice was not adhered to. Moreover, since the
Petitioner appeared before the Learned Trial Court in the proceedings
under Section 138 of the N.I. Act, the Petitioner was no more an
absconder and the process under Section 83 Cr.P.C. was recalled. In
view thereof the direction of the Learned Metropolitan Magistrate for
registration of FIR under Section 174-A IPC and the continuation
thereof is an abuse of the process of the Court and is required to be
quashed to meet the ends of justice. It is also contended that
cognizance for an offence punishable under Section 174-A IPC can be
taken only on a complaint filed under Section 195 Cr.P.C. and in the
absence of a complaint, no cognizance on the charge-sheet could have
been taken.
5. Learned APP on the other hand contends that the essential
requirement under Section 82(2)(i) Cr.P.C. is of affixation and the
requirement under Clause (iii) for publication in the newspaper is not
mandatory. Hence in the absence of a proper publication also, if an
affixation alone is made the requirement of procedure under Section 82
Cr.P.C. stands satisfied. Even the Learned Trial Court noted satisfaction
on the basis of return of process under Section 82 Cr.P.C. by way of
affixation and had thus directed registration of FIR under Section 174-A
IPC.
6. I have heard learned counsel for the parties. The facts of the
present case are that a complaint was filed under Section 138 of the NI
th
Act against the Petitioner. On 20 April, 2008 summons were issued to
the Petitioner. As per the record of the Trial Court the process was
served on Ms. Seema, wife of the Petitioner. Thereafter again processes
were issued, however the Petitioner remained unserved. Thus on 28th
July, 2009 the Learned Trial Court issued bailable warrants in the sum
th
of Rs. 3000/- returnable on 9 October, 2009. However, the said
process could also not been executed. Since the bailable warrants also
could not be executed, the Learned Trial Court issued non-bailable
warrants on 9th October, 2009 returnable for 4th December, 2009. Even
the non-bailable warrants were received back unexecuted with the
report that the accused was hiding himself. Thus, the Learned Trial
Court issued process under Section 82 Cr.P.C. against the Petitioner for
th
15 April, 2010. It was also directed that the process be issued
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through publication having circulation in the newspaper “Statesman”
and also be given dasti. After the process of Section 82 Cr.P.C. the
proclamation under Section 83 Cr.P.C. was issued against the Petitioner
vide order dated 29th September, 2010 and the Learned Trial Court
directed registration of FIR under Section 174-A IPC.
7. Since coercive actions were taken, the Petitioner settled the
matter with the complainant in complaint under Section 138 NI Act
and, thus, the said complaint was permitted to be withdrawn vide order
dated 16th October, 2010. Thereafter, the Petitioner moved an
application for recalling of the proclamation under Section 83 Cr.P.C.
th
The Learned Metropolitan Magistrate vide order dated 9 march, 2011
recalled the proclamation, since the complaint under Section 138 NI
Act had already been withdrawn and the Petitioner had been acquitted
therein. The Petitioner thereafter filed a petition being W.P. (CRL)
412/2011 before this Court seeking quashing of the abovementioned
FIR. This Court issued notice and after issuing notice, on the next date
the learned counsel for the Petitioner after addressing arguments
sought leave to withdraw the petition which was permitted. Now the
present petition has been filed with a few more grounds.
8. As observed earlier, de-hors the fact that the earlier petition was
dismissed as withdrawn this Court had heard the learned counsel for
the parties on merits. As regards the contention of the Petitioner that
the Petitioner was not served at the right address as Ms. Seema is not
the wife of the Petitioner, it may be noted that this is an issue which
would have to be adjudicated during trial whether the service was
affected on the right person i.e. on the Petitioner's wife or not. Merely
on the Petitioner's contending that the process was not affected on his
wife, this Court cannot come to the conclusion that there was no service
of the summons.
9. As regards the next contention of the Petitioner that for a
prosecution under Section 174-A IPC no cognizance can be taken on a
charge-sheet but on a complaint under Section 195 Cr.P.C., it may be
noted that Section 174-A IPC was introduced in the Code with effect
rd
from 23 June, 2006. Section 195(1) Cr.P.C. provides that no Court
shall take cognizance of offences punishable under Section 172 to 188
(both inclusive) of the IPC or of the abatement, or attempt to commit
the said offences, except on the complaint in writing of the public
servant concerned or of some other public servant to whom he is
administratively subordinate. Section 195 Cr.P.C. has not been
correspondingly amended so as to include Section 174-A IPC which was
brought into the Penal Code with effect from 23rd June, 2006. The
Legislature was conscious of this fact and that is why though all other
offences under chapter X of the Criminal Procedure Code are
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noncognizable, offence punishable under Section 174-A IPC is
cognizable. Thus the Police officer on a complaint under Section 174-A
IPC is competent to register FIR and after investigation thereon file a
charge-sheet before the Court of Magistrate who can take cognizance
thereon. Thus, I find no merit in the contention raised by the Learned
Counsel for the Petitioner.
10. Adverting to the last contention of the learned counsel for the
Petitioner that the process under Section 82 Cr.P.C. was illegal as the
proclamation was not in the newspaper as directed by the Court but in
the other newspaper, it may be noted that Section 82(2) Cr.P.C.
provides for the procedure for publishing the proclamation. Clause (i) of
Sub-Section (2) is mandatory in nature as it directs that the
proclamation shall be publically read in some conspicuous place of the
town in which the person ordinarily resides, shall be affixed in some
conspicuous place of the house in which the person ordinarily resides,
and shall be affixed in some conspicuous part of the Court-house.
However, Clause (ii) of Section 82(2) Cr.P.C. is not mandatory and it
states that the Court may also if it thinks fit direct a copy of the
proclamation to be published in a daily newspaper circulated in the
place in which such person ordinarily resides. Since Clause (ii) is not
mandatory in nature, the non-adherence to the strict compliance
thereon will not vitiate the process under Section 82 Cr.P.C. The
abovementioned FIR for offence punishable under Section 174-A IPC is
an independent cause of action and merely because the complaint case
under Section 138 NI Act is settled, there is no reason that the
abovementioned FIR be also quashed.
11. The present petition and application are clearly an abuse of the
process of the Court by the Petitioner. Hence the same are dismissed
with a cost of Rs. 5000/- to be paid to the Delhi High Court Legal
Services Committee by the Petitioner within two weeks.
———
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