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Himachal Pradesh High Court · body

2002 DIGILAW 311 (HP)

NIRMALA DEVI v. STATE OF H. P.

2002-11-17

M.R.VERMA

body2002
ORDER Since the facts involved in these two petitions moved under Section 482 of the Code of Criminal Procedure (hereafter referred to as the Code) are the same and raises similar questions of law and are aimed at seeking the same final relief, therefore, both these petitions are disposed of by this common order. 2. The petitioner in Cr.M.M.O. No. 69 of 2002 is Nirmala Devi wife of the petitioner/accused in Cr.M.M.O. No. 82 of 2002. The allegations against the accused are that he is a co-accused in case No. 250/1 of 1997 under Sections 498-A and 306, I.P.C. which was at the relevant time pending committal. Initially the case was pending in the Court of learned Chief Judicial Magistrate, Bilaspur and subsequently was assigned to the learned Judicial Magistrate Ist Class, Bilaspur. Since the accused is an army personnel in the active service of the Army, therefore, the learned Chief Judicial Magistrate, Bilaspur intimated the concerned Commanding Officer vide option memo issued on 3-1-2000 to exercise the option whether the accused was to be tried by the Army authorities or not. The Army authorities did not exercise their option with the prescribed time despite further option letters dated 8-3-2000 and 25-9-2000. By this time the case stood assigned to the learned Judicial Magistrate Ist Class who vide order dated 24-4-2001 decided to proceed with the matter for want of any option having been given by the Army authorities and issued non bailable warrants against the accused. When the warrant could not be executed proceedings under Section 82 of the Code were initiated vide order dated 22-9-2001 and finally the accused was declared proclaimed offender vide order dated 18-5-2002 and a copy of such order was sent to the S.H.O. Police Station, Sadar Bilaspur for necessary action under Section 83 of the Code with the result that the accused has rendered himself liable for arrest by the police even without a warrant. Hence, the petitions. The case against the co-accused was committed to the Court of the learned Sessions Judge, Bilaspur vide order dated 22-5-2002. 3. Hence, the petitions. The case against the co-accused was committed to the Court of the learned Sessions Judge, Bilaspur vide order dated 22-5-2002. 3. Case of the petitioners is that the accused could not put in appearance because of his being in active Army service and posting in a sensitive and operational area as he could not be spared by the Army authorities, therefore, neither he had absconded nor avoided the process of the Court and is willing to surrender and apply for bail and till the fate of his application for bail is decided he may not be arrested. 4. I have heard the learned counsel for the petitioners and the learned Deputy Advocate General for the State. 5. It is not in dispute that the accused is an Army personnel. It has also not been in disputed before me that at the material time when the processes to secure his presence by the concerned Court were issued he was in active service in operational area as is evident from the communications from the Commanding Officer to the Courts Annexure P-2 and P-5 on the file of Cr.M.M.O. No. 69 of 2002. In these circumstances, it could not be held that the accused is avoiding the service and thus could not be declared a proclaimed offender, therefore, the order dated 18-5-2002 (Annexure P-8) declaring the accused as proclaimed offender and asking the S.H.O. concerned to take necessary action against the accused under Section 83 of the Code cannot be sustained. 6. The learned counsel for the accused has submitted that the accused is willing to surrender before the Committal Court and to make an application for grant of bail before the concerned Court and it is prayed that till the application for bail as may be moved by the accused is disposed of he may not be arrested. It has already been found that the accused had neither avoided service nor absconded with a view to evade the trial. Since the accused had shown his willingness to surrender before the concerned Court it will not be proper to send him in Jail and in the facts and circumstances of the case he must be given an opportunity to surrender before the concerned Court and apply to the appropriate Court for bail. 7. Since the accused had shown his willingness to surrender before the concerned Court it will not be proper to send him in Jail and in the facts and circumstances of the case he must be given an opportunity to surrender before the concerned Court and apply to the appropriate Court for bail. 7. As a result, the impugned order dated 18-5-2002 declaring the accused as a proclaimed offender and directing the police to take action agains him under Section 83 of the Code is set aside and it is ordered that the accused shall surrender in the Court of the learned Judicial Magistrate Ist Class, Bilaspur and in his absence in the Court of learned Chief Judicial Magistrate, Bilaspur on 26-11-2002 at 10 a.m. and make appropriate application before the competent Court for grant of bail to him. In case the accused so surrenders and makes the application for grant of bail he shall not be arrested till the disposal of his application. In case the accused fails to surrender on 26-11-2002, as directed hereinabove or if his application for grant of bail is finally dismissed, the concerned Court will be at liberty to take action against him in accordance with law to secure his presence. 8. An attested copy of this order be furnished to the learned counsel for the petitioners by the Bench Reader of this Court during the course of the day today free of costs. The Registry will also send a copy of the order to the concerned Courts by Fax at the first instance and to be confirmed by sending attested copy in due course. 9. Both the petitions are disposed of in terms of the above order. Order accordingly.