VINOD KUMAR KHANNA Vs. STATE

JUDGEMENT

(1.) This petition has been brought under the Section 482 of the Code of Criminal Procedure for quashing the order dated April 8, 1988 passed Shri R.L. Chugh, Chief Metropolitan Magistrate, by which he bad issued a proclamation under Section 82 of the Code of Criminal Procedure requiring the appearance of the petitioner as an accused in case R.C, 1 of 1988, on the 24th May 1988.

(2.) The facts in brief are that the case has been registered by the C.B.I, under Sections 3 & 5 of the Official Secrets Act, 1923 read with Section 120-B of the Indian Penal Code against the petitioner and one Lt. Gen. (Retd) Nirmal Puri. According to the C.B.I, this petitioner was required to appear before the Investigating Officer on 2nd March, 1988 vide notice dated 23rd February 1988. But the petitioner who is in foreign country could not be served and an official of the company of which the petitioner is the Chairman had informed that the petitioner would be apprised about this on his return to India. Another notice was issued for appearance of the petitioner before the Investigating Officer. Again the same cod not be served as the petitioner was out of India and a letter was received from the official of the company mentioning that the petitioner had been already intimated about the said notice and the petitioner would appear before the Investigating Officer on his return to India. As the petitioner did not turn up, an application was moved dated 3rd March, 1988 before the Chief Metropolitan Magistrate for issuance of warrants of arrest of the petitioner. The warrants of arrest of the petitioner also could not be executed and thereafter the application was moved on 29th March, 1988 for issuance of proclamation under Section 82 and attachment under Section 83 of the Cr. P.C. The impugned order was made by the C.M.M. for issuance of the proclamation on application dated 28th April, 1988 of the C.B.I.

(3.) The learned counsel for the petitioner has vehemently contended that at no point of time the petitioner bad evaded the notices issued by the Investigating Officer for his appearance or the warrants of arrest hence the petitioner could not be declared as absconding from the law and hance no steps could be taken for issuance of a proclamation under Section 82 of the Act. He has placed reliance on N.M. V. Vellayappa Chettiar v. Alagappa Chettiar, AIR (29) 1942 Madras 289; and on K K. Jajodia v. State C.B.I. 33(1987) DLT 64. It has been argued by the learned counsel for the petitioner that at the time the two notices were issued by the 1.0. for appearance of the petitioner before the 1.0., it was not mentioned in those notices that the petitioner is an accused person and his presence is required for his interrogation. The notices only required the presence of the petitioner before the 1.0. in the process of investigation of the case. He has argued that as far as warrants of arrest are concerned, they never came to the knowledge of the petitioner and thus from the facts and circumstances appearing, the C.M.M. was wrong in coming to the conclusion that the petitioner was evading the arrest.