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2014 DIGILAW 86 (UTT)

GAMBHIR SINGH v. STATE OF UTTARAKHAND

2014-03-19

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J. (oral) Accused-applicant Gambhir Singh was convicted under Section 376(2)(g) of IPC, 457 of IPC and 458 of IPC. Aggrieved against his conviction and sentence, accused-applicant preferred a criminal appeal before this Court. Accused-applicant was acquitted of the charge under Section 376(2)(g) of IPC. His conviction under Sections 457, 458 of IPC was converted to Section 452 of IPC. He was sentenced accordingly. It was directed by this Court, vide order dated 25.06.2013, that the applicant shall be taken into custody forthwith by the police and the applicant shall serve out the remaining period of sentence awarded by this Court. 2. The convict moved an SLP (crl) before Hon’ble Supreme Court of India. Hon’ble Apex court, vide order dated 04.10.2013, was pleased to pass the following order: “Post again after one week. Additional documents, if any, including the certificate regarding the period already undergone by the petitioner be filed in the meantime.” 3. Subsequent thereto, on 24.10.2013, Hon’ble Apex court passed the following order: “Application for exemption from surrendering is allowed.” 4. In the meanwhile, on 12.09.2013, respondent no. 3 moved an application to the First Addl. Sessions Judge, Rishikesh. It was written in such application that respondent no. 3 made an attempt to execute non-bailable warrant and affected service of process under Section 82 of Cr.P.C. on the accused, but the accused was not available at his residence. Since the accused was not available at his given address, therefore, process under Section 82 of Cr.P.C. was affixed at his residence. Signatures of two witnesses were also taken. It was also written in said application dated 12.09.2013 that accused was concealing himself to evade his arrest and, therefore, attachment order under Section 83 of Cr.P.C. be issued against him. 5. It is the contention of learned counsel for the applicant that accused-applicant himself supplied a copy of the SLP (Crl) to respondent no. 3 on 08.09.2013 and, inspite of the same, respondent no. 3 gave an application in the Court below that the accused was concealing himself and was evading his arrest. 6. This Court directed the police to take the accused-applicant into custody forthwith in order to serve out the remaining part of sentence. 3 on 08.09.2013 and, inspite of the same, respondent no. 3 gave an application in the Court below that the accused was concealing himself and was evading his arrest. 6. This Court directed the police to take the accused-applicant into custody forthwith in order to serve out the remaining part of sentence. Whereas such an order was passed by this Court on 25.06.2013, an SLP was moved by the applicant before Hon’ble Supreme Court, whereupon an order was passed on 04.10.2013, which order has been excerpted here-in-above by this Court. Application for exemption from surrendering was not allowed by the Hon’ble Apex court by then. Such an order was passed on 24.10.2013. But in the meanwhile, in pursuance of the directions of this Court, an application for issuance of process under Section 83 of Cr.P.C. was moved by respondent no. 3 before the Addl. Sessions Judge, Rishikesh. 7. The question is –was the applicant exempted from surrendering before the court concerned by merely supplying a copy of the SLP to respondent no. 3? The reply is in the negative. Had respondent no. 3 attached the property of the accused after 24.10.2013, he was definitely liable for the contempt of Court, but by the time, respondent no. 3 moved an application for issuing process under Section 83 of Cr.P.C. before the Addl. Sessions Judge, Rishikesh, no such order was passed by the Hon’ble Supreme Court. On the other hand, respondent no. 3 was made to comply with the order dated 25.06.2013, passed by this Court. 8. If the accused-applicant was asking respondent no. 3 to grant him some time to avail of legal remedy against the order passed by this Court on 25.06.2013, was the respondent no. 3 entitled to grant such time to the accused-applicant? The reply again is an emphatic no. Who was respondent no. 3 to have granted time to the application to sought legal remedy before the higher court? Even if accused-applicant supplied a copy of SLP to respondent no. 3, the same also did not absolve the accused-applicant from surrendering before the court concerned in compliance of the directions of the High Court, till such time order dated 24.10.2013 was passed by the Hon’ble Supreme Court. 9. In a nutshell, the accused-applicant did not submit to the jurisdiction of the Court. 3, the same also did not absolve the accused-applicant from surrendering before the court concerned in compliance of the directions of the High Court, till such time order dated 24.10.2013 was passed by the Hon’ble Supreme Court. 9. In a nutshell, the accused-applicant did not submit to the jurisdiction of the Court. He did not surrender in compliance of the order of the High Court passed on 25.06.2013. Merely by saying that accused-applicant was filing SLP before the Hon’ble Supreme Court and, therefore, seeking some time from respondent no. 3, was not enough. Supplying a copy of the SLP to respondent no. 3 was not enough. Who was he (respondent no. 3)? The accused-applicant himself did not appear before learned Addl. Sessions Judge. He could not have trained his gun on the shoulder of respondent no. 3 to have said that he wants some time to surrender before the Court. Order of the Hon’ble Apex court was required to stay the operation of the order of the High Court, which order came after the property of the accused-applicant was attached. 10. Mentioning of the fact that the accused-applicant supplied a copy of the SLP to respondent no. 3, might be a moral obligation on the part of respondent no. 3 to have disclosed such fact to the First Addl. Sessions Judge, Rishikesh, but, it appears that respondent no. 3 did not consider it proper to mention such fact in view of the fact that the accused-applicant did not submit to the jurisdiction of the Court. Respondent no. 3 wrote in his application dated 12.09.2013 that the accused was concealing himself and was evading arrest, presumably because the accused-applicant did not surrender or did not submit to the jurisdiction of the Court in pursuance of the directions dated 25.06.2013 of this Court. It cannot, therefore, be said that respondent no. 3 concealed material fact from First Addl. Sessions Judge, Rishikesh. No proceedings under Section 340 of Cr.P.C. could, therefore, be initiated against respondent no. 3. 11. It cannot, therefore, be said that respondent no. 3 concealed material fact from First Addl. Sessions Judge, Rishikesh. No proceedings under Section 340 of Cr.P.C. could, therefore, be initiated against respondent no. 3. 11. Since Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973, says that no Court shall take cognizance of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, therefore, it was not obligatory upon the Senior Superintendent of Police, Dehradun to have directed the police station concerned to lodge report against respondent no. 3. The prayers made by the applicant in this application under Section 482/483 of Cr.P.C., therefore, cannot be accepted. 12. The application under Section 482/483 of Cr.P.C. is devoid of merits and is, accordingly dismissed.