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2014 DIGILAW 2267 (ALL)

Adya Shanker Tripathi v. State of U. P.

2014-07-31

VIJAY LAKSHMI

body2014
JUDGMENT Mrs. Vijay Lakshmi,J. The same story of an innocent Indian bride being duped by her NRI husband is repeated here in this case. The revisionist No.1 residing at America performed a second marriage with revisionist No.2. Her first wife Priyambada Tripathi ( Opposite Party No.2 in the instant revision) filed a complaint case against him in the court of Magistrate under section 494 I.P.C (bigamy) impleading the second wife also. Learned magistrate after recording her statement and also of the witnesses under sections 200 and 202 Cr.P.C respectively, summoned the accused persons (both the revisionists). But the revisionists taking advantage of the situation of residing at America did not appear. On their behalf two counsel appeared on 14.11.1990 and challenged the maintainability of the complaint case. They also sought exemption from personal attendance of the accused person which was granted till the stage of case-proceedings reaching up to recording of statement of witness under section 244 Cr.P.C. The evidence under section 244 was closed on 11.6.1992 but when even after expiry of the period so exempted, the accused persons did not appear, coercive methods were adopted against them. However, as the warrant of arrest could not be executed on them due to revisionists being residing in America, a request was made by the complainant Smt. Priyambada Tripathi to the magistrate to issue process under sections 82-83 Cr.P.C for attachment of their property situated at India to compel them to appear before the Court. But the learned Magistrate rejected her application vide order dated 7.4.2001 on the sole ground that unless and until NBW is executed against the revisionists, no process under sections 82-83 Cr.P.C can be issued. Aggrieved by the aforesaid order of the magistrate, Smt. Priyambada Tripathi ( opposite party No.2), filed revision No. 135 of 2001 before the learned Session Judge, Mirzapur. The learned Session Mirzapur by the impugned order dated 31.8.2001, allowed her revision and directed the Magistrate to issue process under sections 82-83 Cr.P.C against the revisionists for securing their attendance. 2. The aforesaid order dated 31.8.2001 of learned Sessions Judge, Mirzapur has been challenged by means of the instant revision on the following grounds. (1) By the impunged order the learned Sessions Judge, has entertained the revison against an interlocutory order. 2. The aforesaid order dated 31.8.2001 of learned Sessions Judge, Mirzapur has been challenged by means of the instant revision on the following grounds. (1) By the impunged order the learned Sessions Judge, has entertained the revison against an interlocutory order. As the revision filed earlier by Smt. Priyambada Tripathi against the order of magistrate rejecting to issue process under sections 82-83 Cr.P.C was itself not maintainable, due to its being filed against an interlocutory order, the order passed on it is also without jurisdiction. (2) By order dated 7.4.2001 the magistrate had directed the opposite party No2 Smt. Priyambada Tripathi, to comply with the directions issuedin the High Court's letter dated 30.10.1999 and to take steps accordingly but the opposite party No.2, instead of complying with the directions mentioned in the High Cout's letter and instead of taking steps accordingly, filed a revision, which ought not to have been heard. (3) Because the learned Session Judge has not recorded any finding that the accused/ revisionists are absconding or concealing themselves and without arriving at the conclusion that the accused/revisionists are absconding or concealing themselves, process for proclamation and attachment under sections 82-83 Cr.P.C were issued. (4) Admittedly the accused/revisionists are living in America. They are neither absconding nor concealing themselves nor avoiding the warrant of arrest. (5) Admittedly the warrant of arrest has not yet been sent to America where accused/revisionists are residing. (6) Admittedly, the accused/revisionists had left India much prior to the filing of the complaint and issuance of the warrant of arrest. They have gone abroad on valid passport and Visa granted by the Ministry of External Affair New Delhi and are residing at America validly. (7) The attendance of the accused /revisionists can only be procured under the provision of the Extradition Act, 1962 and under the Extradition Act, 1962, there is no reference of the applicability of sections 82-83 Cr.P.C. Therefore, the judgement of learned Session Judge is against the provisions of the Extradition Act,1962 but the learned Session Judge has totally ignored its provision. (8) The warrant of arrest cannot be served or executed in the territory of U.S.A as there exists no mutual legal assistance treaty in the criminal matters between India and U.S.A. 3. (8) The warrant of arrest cannot be served or executed in the territory of U.S.A as there exists no mutual legal assistance treaty in the criminal matters between India and U.S.A. 3. On the aforesaid grounds raised by Sri Arvind Srivastava, the learned counsel for the revisionists it has been prayed that the revision be allowed and the impugned judgement dated 31.8.2001 passed by the learned Session Judge, Mirzapur be set aside. 4. Learned A.G.A and learned counsel for opposite party No.2 Smt. Seema Mishra have vehemently opposed the revision by contending that the impugned order does not suffer from any illegality or irregularity requiring any interference by this Court. Learned counsel for opposite party No.2 has drawn the attention of this Court to the observation made by learned Session Judge in the impugned order which is quoted below: - " It is shocking that the case is pending for the last 12 years. The evidence under section 244 Cr.P.C was closed about 10 years back but the accused did not care to appear in the Court. In these circumstances it was the bounden duty of the court to have adopted the coercive method for the appearance of the accused" 5. Learned counsel for the opposite party No.2 and learned A.G.A have vehemently argued that despite having full knowledge about the pendency of complaint case against them, the revisionists are deliberately not appearing before the Court and as a result the complaint case is pending since more than 25 years despite the fact that this Court vide order dated 7.9.2010 has directed the trial court to dispose of the complaint case expeditiously within a period of 60 days. 6. The learned counsel for the opposite party has submitted that this case is clearly a glaring example of blatant misuse of the process of the Court, as the revisionists have been successful in prolonging the trial unnecessarily for more than 25 years that too at the initial stage of summoning. Heard and perused the record. Section 83 (1) of Cr.P.C which is relevant here, provides as under: - 83. Attachment of property of person absconding. Heard and perused the record. Section 83 (1) of Cr.P.C which is relevant here, provides as under: - 83. Attachment of property of person absconding. (1) The court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation the court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,? (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the court, It may order the attachment simultaneously with the issue of the proclamation.(Emphasis supplied). 7. Although sections 83 Cr.P.C provides for attachment of a property of a person who is absconding or concealing himself, it cannot be assumed that if a person is deliberately not appearing and is not complying the orders of the Court despite having full knowledge about the case and who is taking the advantage of the situation of his residing at America, the Court is helpless to adopt the procedure provided under sections 82-83 against him and to attach of his property situated in India in order to compell his attendance. In such situation, the court cannot be assumed to sit as a silent spectator. The learned Session Judge after considering the same situation, has very rightly directed the magistrate to issue the process under sections 82 and 83 Cr.P.C simultaneously for securing the attendance of the revisionist. 8. Considering the entire facts and circumstances of the case, there appears no illegality or irregularity in the order impugned requiring any interference by this Court. The revision is without any force and is liable to be dismissed. 9. The revision is dismissed accordingly.