SHAHNAWAJ Vs. STATE

JUDGEMENT

(1.) By this petition under Section 482 of the Code Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.'), the petitioner has challenged order dated 30.05.2013 passed by learned Additional Sessions Judge (Central), Delhi whereby criminal revision filed by the petitioner was dismissed.

(2.) In nutshell, the brief facts of the case are that the petitioner/ Dr.Shahnawaj lodged FIR No.670/2007 under Sections 325/34 IPC registered at PS Darya Ganj, New Delhi. On completion of investigation, charge-sheet was filed against accused, Mohd. Yusuf and Rizwan Yusuf. Vide order dated 06.02.2010, summons were issued against the accused. Thereafter, non-bailable warrants were issued against Respondent No. 2/Mohd.Yusuf. Vide order dated 09.12.2010, learned Metropolitan Magistrate, Delhi issued process under Section 82 Cr.P.C. against Respondent No. 2 and directed for publication in one leading newspaper having circulation in the concerned area. Vide order dated 18.02.2011, trial Court observed that copy of newspaper has not been filed. The case was adjourned for filing the copy of newspaper in which publication was made and notice was issued for the statement of process server. Vide order dated 20.09.2011, fresh process under Section 82/83 Cr.P.C. was issued against Mohd. Yusuf. On 22.12.2011, link Metropolitan Magistrate, Delhi passed an order that process under Section 82 Cr.P.C. and NBW issued against the accused had been received back executed and the matter was adjourned to 05.01.2012 for consideration. Vide order dated 05.01.2012, the trial Court issued fresh notice to the process server through concerned DCP to appear in person for making the statement regarding the execution of process under Section 82 Cr.P.C. against accused/ Respondent No. 2 and process under Section 83 Cr.P.C. was issued against Respondent No. 2 through concerned SHO.

(3.) The Respondent No. 2 moved an application dated 15.03.2012 for cancellation of NBW, withdrawal of proceedings under Section 82/83 Cr.P.C. and for bail. Respondent No. 2 appeared before the trial Court on 31.03.2012 and proceedings under section 82/83 CrPC were stayed against him till 2.4.2012. On 15.05.2012, the petitioner/complainant opposed the said application and contended that the publication of process under Section 82/83 Cr.P.C. was made in the newspaper, therefore, offence under Section 174A IPC was made out and requested that the said application be dismissed. The trial Court observed that Section 174A IPC is attracted only when the accused has been declared proclaimed offender under Section 82(3) Cr.P.C. after provisions of Section 82(1) Cr.P.C. has been complied with. Since, the process server has not appeared to make a statement and the Court has not declared accused/ Respondent No. 2 as proclaimed offender, so the provision under Section 174A IPC could not be said to be attracted against the accused. The trial Court further observed that as the offence under Section 325/34 IPC is a bailable offence, non-bailable warrants and process under Section 82/83 issued against Respondent no. 2 stands cancelled and, therefore, respondent No.2/accused Mohd. Yusuf was admitted to bail.