SUBHASH KAKKAR & OTHERS Vs. STATE OF UTTARANCHAL & ANOTHER
LAWS(UTN)-2012-3-121
HIGH COURT OF UTTARAKHAND
Decided on March 22,2012

Subhash Kakkar And Others Appellant
VERSUS
State of Uttaranchal and another Respondents

JUDGEMENT

Servesh Kumar Gupta, J. - (1.) BY means of this petition, a prayer has been advanced to quash the entire proceedings of criminal complaint case no.270/2004 (previous no.183/96), titled as 'Smt. Kiran Bhatia Vs. Smt. Neelam Bhatia & others', pending in the court of Judicial Magistrate -I, Dehradun, and the order of cognizance dated 4.11.1995 passed therein, asking the petitioners to stand trial for the offences punishable u/s 452, 447, 504 and 506 IPC. The facts, pertaining to the controversy between the parties, relate back to almost around 25 years ago when Smt. Neelam Bhatia (petitioner no.2) was espoused with Praveen Bhatia, way back on 14.1.1986. Praveen Bhatia and his family hailed from Dehradun, whereas, Smt. Neelam belonged to a business class family, based at Delhi. Within a couple of years, the differences between the husband and wife and their respective families became sour, so Smt. Neelam Bhatia was constrained to leave her matrimonial house, and to reside with her father Mulkh Raj Kakkar. She lodged an FIR no.291/1991 in Delhi itself, in pursuance of which, the house of Praveen Bhatia was raided by one Satish Chandra Sharma, a Sub -Inspector of Police (Women's Cell), P.S. Nanakpura, New Delhi, along with four other constables, in the company of Smt. Neelam, her father Sri Mulkh Raj Kakkar and two real brothers, namely, Sri Subhash and Shri Shailey. It is an admitted case between the parties that Praveen Bhatia happened to be a government servant in Air Force and posted somewhere at a very remote place in Maharashtra, and he was not present at the time of both the alleged incidents of 8.5.1992 and 18.5.1992. This search was conducted, allegedly on the strength of a search warrant by the police, and it has been alleged by Smt. Kiran Bhatia that police personnel, who were being led by S.I. Satish Chandra Sharma, plundered her house on the persuasions and shadow of directions given by petitioners. She approached the local police officers for rendering assistance against this highhandedness, being led by Smt. Neelam along with her father and two brothers, but her prayer could not solicit any heed on the part of local police officers at Dehradun. So, she was constrained to file the instant complaint on 21.9.1993 against all the petitioners and the police personnel of Delhi Police. Learned Magistrate, after recording the statements u/s 200 and 202 Cr.P.C., was of the view that no offence was made out against the police personnel, inasmuch as, they were conducting search on the basis of an alleged search warrant. He further expressed his opinion that there might be some irregularities on the part of police personnel but the same were not sufficient to take cognizance against them and he found a fit case for taking cognizance against the petitioners for the offence of Sections 452, 447, 504 and 506 IPC.
(2.) THE process was repeatedly sent by the court concerned to ensure the presence of accused for several years but they did not put their appearance in the court, rather they moved to Hon'ble Apex Court, seeking transfer of the instant complaint case from Dehradun to Delhi court. The Hon'ble Apex Court was not convinced with the prayer entailed in petition, and dismissed the same on 30.7.2001, by permitting them to apply exemption from personal appearance before the court. It was also directed that in case such exemption application is made, the same shall be granted on the conditions that, a counsel on petitioners' behalf would be present in the court whenever their case is taken up; the petitioners will not dispute their identity as the accused in the case and that the petitioners will be present in the court, when such presence is imperatively needed. Petitioners, instead of putting their appearance before the trial court, moved an application through their advocate on 12.10.2001, whereby they sought time to file objection against the summoning order. However no exemption application even that time was filed and simply the petitioners sought adjournment on the said ground. Learned Magistrate observed in his order, made on the said application, that the case could be proceeded only after moving the exemption application by the accused, and accordingly, he fixed the matter for 1.11.2001 for further orders.
(3.) IT appears that instead of putting appearance, either in person or through counsel or even moving an exemption application through counsel, the petitioners slept over the directions of the Magistrate and woke up after more than two years on 13.1.2004, when they moved an application with the same prayer, as afore -stated, and that too, without moving any application for exemption of their presence. The said application was rejected by learned Magistrate on the same day, i.e. on 13.1.2004, by an elaborate order.;


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