State v. Ram Dilawri & others), pending before
Case Details
Neutral Citation No. - 2024:AHC:143549 Court No. - 77 Case :- APPLICATION U/S 482 No. - 18676 of 2024 Applicant :- Ram Dilawari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Chhaya Gupta,Sujeet Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Sujeet Kumar, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. Applicant-Ram Dilawari, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to stay the impugned order dated 01.03.2024 passed by learned Additional District & Sessions Judge-II/Special Judge (SC/ST Act), District Gautam Buddh Nagar in ST No. 688 of 2018 (State Vs. Ram Dilawri & others), arising out of Case Crime No. 332 of 2012 under Section 307, 120B IPC, Police Station-58 Noida, District-Gautam Buddh Nagar as well as further proceedings of ST No. 688 of 2018 (State Vs. Ram Dilawri & others), pending before the learned Additional District & Sessions Judge-II/ Special Judge (SC/ST Act), District Gautam Buddh Nagar, otherwise the applicant will suffer irreparable loss and injury. It is further prayed that this Hon'ble Court may graciously be pleased to quash impugned order dated 01.03.2024 passed by learned Additional District & Sessions Judge-II/Special Judge (SC/ST Act), District Gautam Buddh Nagar in ST No. 688 of 2018 (State Vs. Ram Dilawri & others),
Legal Reasoning
arising out of Case Crime No. 332 of 2012 under Section 307, 120B IPC, Police Station-58 Noida, District-Gautam Buddh Nagar as well as further proceedings of ST No. 688 of 2018 (State Vs. Ram Dilawri & others), pending before the learned Additional District & Sessions Judge-II/ Special Judge (SC/ST Act), District Gautam Buddh Nagar, and or pass any such other order which this Hon'ble Court may deem fit and proper under the circumstances of the case in the interest of justice. " 4. Record shows that applicant has approached this Court on six occasion by means of application under Section 482 Cr.P.C. with the same prayer. 5. Applicant filed Application U/S 482 Cr.P.C. NO. 27503 of 2015 and on 14.09.2015, this Court passed the following order
Legal Reasoning
"Heard Sri Shivam Yadav, learned counsel for the applicant and Sri Sanjay Tripathi, learned A.G.A. for the State. This application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 1.8.2015 passed by learned Chief Judicial Magistrate, Gautam Budh Nagar in Case No. 10995 of 2012 (State Vs. Ram Dilwari & another) arising out of Case Crime No. 332 of 2012, under Sections 307, 120-B I.P.C., P.S. Sector-58 NOIDA, District Gautam Budh Nagar. It has been contended by the learned counsel for the applicant that the applicant is Canadian citizen and have business in India as well as abroad, has been falsely implicated in the present case due to business rivalry and there is allegation of conspiracy against the applicant. He submits that the applicant has got himself bailed out in the present case and he is facing trial. He further submitted that at the present moment, the applicant is aged about 80 years and he is in abroad. He further submitted that the applicant is suffering from some cardiac problem as well as old age disease and he has been advised by the doctor that he should not travel by air. The medical document of the applicant has been annexed as annexed-9 page no. 44 of the accompanying affidavit. Learned counsel for the applicant has further submitted that the applicant undertakes to cooperate with the trial subject to some time may be given to the applicant to appear before the court concerned. Considering the facts and circumstances of the case as well as the material brought on record, it is directed that the applicant shall appear and surrender before the court concerned within a period of six weeks from today. For a period of six weeks from today, non-bailable warrant issued against the applicant shall be kept in abeyance. In case, the applicant does not appears before the Court below within the aforesaid period, trial Court is free to take coercive action against him. With the aforesaid direction, the present 482 Cr.P.C. application is disposed of. Order Date :- 14.9.2015 " 6. Applicant filed Application U/S 482 Cr.P.C. No. 15232 of 2016 and on 18.02.2016, this Court passed the following order: "Heard learned counsel for the parties. Admittedly, on his own showing, the applicant has not complied with the order dated 1.8.2015 passed in Application u/s 482 CrPC no. 27503 of 2015, by which he was directed to ensure his attendance before the court below and thereafter to apply for bail and this Court had granted him a limited protection for a period of six weeks. If that be so, it does not lie in the mouth of the applicant now to contend that as a matter of right, he is entitled to claim exemption. The application is misconceived and is dismissed. Order Date :- 18.5.2016 " 7. Applicant filed Application U/S 482 Cr.P.C. No. 38964 of 2016 and on 17.12.2016 this Court passed the following order: "Heard learned counsel for the applicants and the learned A.G.A. Present application has been filed for quashing the charge sheet dated 09.6.2012 in Case No. 10995 of 2012 arising out of case crime No. 332 of 2012 under Sections 307, 120B IPC, police station Sector-58 Noida, district Gautam Budh Nagar and to quash the proceedings of the aforesaid case pending in the court of Chief Judicial Magistrate, Gautam Budh Nagar. It is contended by learned counsel for the applicants that the applicants are N.R.I. and the applicant No. 1 is aged about 81 years of suffering from various old age ailments and is residing in Canada. It is next contended by learned counsel for the applicants that the applicants have already been enlarged on bail and it has been prayed that the applicants may be permitted to move application for discharge through counsel. After hearing the learned counsel for the applicants, learned A.G.A. and after perusing the material on record, this application is finally disposed of with liberty to the applicants to move appropriate application for discharge, through counsel within a period of thirty days from today and if same is filed, the court concerned shall consider and decide the discharge application of the applicants expeditiously, strictly in accordance with law, preferably within a period of six months from the date of filing of such application. Order Date :- 17.12.2016 " 8. Applicant filed Application U/S 482 Cr.P.C. No. 15238 of 2017 and on 16.05.2017 this Court passed the following order: " As prayed by learned counsel for applicant, present application is dismissed as withdrawn. " 9. Applicant filed Application U/S 482 Cr.P.C. No. 20397 of 2018 and on 12.07.2018 this Court passed the following order: "Heard learned counsel for the applicant and learned A.G.A. for the State. The present application has been filed to quash the impugned order dated 17.3.2018, arising out of Case Crime No. 332 of 2012, under Sections 307, 120B IPC, Police Station Sector-58 NOIDA, District Gautam Budh Nagar, and entire criminal proceedings in Case Crime No. 10995 of 2012 (State Vs. Ram Dilwari and another), pending in the court of learned Chief Judicial Magistrate, Gautam Budh Nagar. Learned counsel for the applicant submits that the applicant is a Canadian citizen and he has been falsely implicated in a criminal case. He had been enlarged on bail by this Court on 25.5.2012 in Criminal Misc. Bail Application No. 12942 of 2012. The applicant then appears to have filed an application 482 Cr.P.C. No. 38964 of 2016 to challenge the charge sheet dated 9.6.2012. The said 482 Cr.P.C. application came to be disposed of by the order dated 17.12.2016 on the following terms:- "It is contended by learned counsel for the applicants that the applicants are N.R.I. and the applicant No. 1 is aged about 81 years of suffering from various old age ailments and is residing in Canada. It is next contended by learned counsel for the applicants that the applicants have already been enlarged on bail and it has been prayed that the applicants may be permitted to move application for discharge through counsel. After hearing the learned counsel for the applicants, learned A.G.A. and after perusing the material on record, this application is finally disposed of with liberty to the applicants to move appropriate application for discharge, through counsel within a period of thirty days from today and if same is filed, the court concerned shall consider and decide the discharge application of the applicants expeditiously, strictly in accordance with law, preferably within a period of six months from the date of filing of such application." It is then submitted that unfortunately the applicant's medical condition deteriorated and the medical advise given to him took precedence the legal advise tendered to him and he proceeded to Canada for his better treatment without filing the discharge application. In such circumstance, non-bailable-warrant appears to have been issued against the applicant which has prompted the applicant to again approach this Court by means of the present application. While the applicant is himself to blame for his plight inasmuch as having been granted an indulgence to file discharge application through counsel, he has failed to do so within the time permitted. However, the applicant is about 84 years of age and it does appear that he is suffering from serious ailments in proof where of certain documents has been annexed in support of the present application. The present application is thus disposed of, allowing the applicant two months further time to file discharge application through counsel, subject to payment of cost of Rs. 10,000/- to Legal Services Committee, High Court Allahabad, within a period of two weeks from today. Order Date :- 12.7.2018 " 10. Applicant filed Application U/S 482 Cr.P.C. No.11248 of 2023 and 15.03.2024 this Court passed the following order: "1. Heard Shri Manish Tiwari, learned Senior Advocate assisted by Shri P.K. Singh, learned counsel appearing for the applicants, Shri S.D. Pandey, learned AGA for the State, Shri V.K. Singh, learned counsel appearing for opposite party no. 2. 2. The present application under Section 482 Cr.P.C. has been filed by the applicants praying to quash the entire proceeding as well as impugned order dated 10.08.2022 passed by learned Special Judge, SC/ST Act, Gautam Budh Nagar in Special S.T. No. 688 of 2018, (State v. Ram Dilawari and others) arising out of Case Crime No. 332 of 2012, under Section 307 and 120-B I.P.C., Police Station- Sector-58, Noida, District- Gautam Budh Nagar pending in the Court of Special Judge, SC/ST Act, Gautam Budh Nagar. 3. Shri Manish Tiwari submits that there was a civil suit pending between the parties before National Company Law Tribunal. Applicant no. 1 is 90 year old person and he is physically not fit. He is virtually immobile. The applicant no. 2 is a lawyer of applicant no. 1 before the NCLT. An FIR was lodged on 29.04.2012, in which, it is alleged that some unknown person shot one Tilak Raj Arya, who was brother of opposite party no. 2 and further stated the applicant had got it done. It is clear that there was one gun-shot injury. The applicants were arrested and were enlarged on bail. After investigation, a charge-sheet was submitted on 09.06.2012 and summons were issued. 4. The applicants filed an application under Section 482 CrPC before this Court bearing Application No. 38964/2016, in which, this Court on 17.12.2016 passed the following order :- "It is contended by learned counsel for the applicants that the applicants are N.R.I. and the applicant No. 1 is aged about 81 years of suffering from various old age ailments and is residing in Canada. It is next contended by learned counsel for the applicants that the applicants have already been enlarged on bail and it has been prayed that the applicants may be permitted to move application for discharge through counsel. After hearing the learned counsel for the applicants, learned A.G.A. and after perusing the material on record, this application is finally disposed of with liberty to the applicants to move appropriate application for discharge, through counsel within a period of thirty days from today and if same is filed, the court concerned shall consider and decide the discharge application of the applicants expeditiously, strictly in accordance with law, preferably within a period of six months from the date of filing of such application." 5. Thereafter, the applicant no. 1 left for Canada without even moving a discharge application. Since the applicant had proceeded for Canada and did not appear, a warrant has been issued against him. This warrant was challenged by the applicant vide application U/S 482 No. 20397 of 2018. This application was disposed of vide order dated 12.07.2018, wherein, the court took a serious view that the applicant no. 1 has moved to Canada without taking a discharge, however, the court further granted two months’ time to move a discharge application. Thereafter, the applicant moved a discharge application that was rejected vide order dated 10.08.2022, against which, the applicant has filed the instant application assailing the rejection order. 6. Learned counsel for the applicants further submits that there is nothing on record to show involvement of the applicants except a bald allegation made in the FIR, and there is no evidence of conspiracy, hence, the charge- sheet cannot be sustained. Learned counsel for the applicants submits that there is no reason for suspicion neither there is any ingredient of Section 120-B IPC. He further submits that the allegation levelled against the applicant is only a bald allegation. Since, no case is made out against the applicants, hence, the rejection of discharge application is bad in law. 7. Learned counsel for the applicants relied on a decision passed by the Hon’ble Apex Court in the matter of Vijayan v. State of Kerala, 1999 (3) SCC 54, in which, it has been held that, from the facts and documents on record, if no interference can be drawn of the alleged conspiracy then, the proceedings should be dropped. 8. Mr. Vineet Kumar Singh, learned counsel appearing for opposite party no. 2 submits that applicant no. 1 is a Canadian Citizen who has been living in Canada since 2012. He further submits that against applicant no. 1, somebody had filed an FIR in Delhi for committing fraud. In that proceedings in lower court, Delhi, the applicant no. 1 had submitted that he is required to go for operation of his wife in Canada and for his further business interest and accordingly, he was allowed to travel Canada with a direction that he will report and will deposit the passport to the court but he never came back since 2012. The applicant no. 1 has fled to Canada instead of staying there. Since the applicant no. 1 had ran away to Canada, the IO moved an application in the Lower Court in Delhi for issuance of NBW and the same should be served through Ministry of External Affairs. The Office of Additional Deputy Commissioner of Police, South-East Delhi moved an application on 13.08.2023 stating all the facts that the applicant is an absconder and NBW may be issued through Ministry of External Affairs. 9. Shri V.K. Singh further submits that the victim has given under Section 161 CrPC, in which, it is categorically stated that he received gun-shot injuries by a contract killer who were contracted by the applicants. He further submits that medical examination report shows that the situation of the victim was critical. He also submits that at the stage of discharge, mini trial is not permissible and the defence of the accused is not liable to be tested on merits. He placed reliance upon a judgement passed in The State Of Rajasthan vs Ashok Kumar Kashyap, 2021 (11) 191. He further submits that the applicants have been named in the FIR. 10. He further submits that a pre-emptive complaint was filed by the injured on 09.04.2012 against the applicants and after 20 days, FIR was lodged on 29.04.2012. In this complaint, he has clearly taken the name of the applicants. 11. Per contra, Shri S.D. Pandey, learned AGA for the State has vociferously opposed the application. 12. I have carefully considered the submissions advanced by learned counsel for the respective parties. With the able assistance, I have perused the pleadings, grounds taken in the petition/application, affidavits and annexures thereto and the reply filed by concerned parties. 13. In the instant application, an interim order was passed on 04.04.2023, which is as under :- “Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri Praveen Kumar Singh, learned counsel for the applicants and Sri Sanjay Kumar Singh, learned counsel for the State. This application under Section 482 Cr.P.C. has been filed by the applicants- Ram Dilawari and Manish Agarwal with the prayer to allow this application and quash the entire proceeding as well as impugned order dated 10.08.2022 passed by learned Special Judge, SC/ST Act, Gautam Budh Nagar in Special S.T. No. 688 of 2018, (State vs. Ram Dilawari and others) arising out of Case Crime No. 332 of 2012, under Section 307 and 120-B I.P.C., Police Station Sector-58, Noida, District Gautam Budh Nagar pending in the Court of Special Judge, SC/ST Act, Gautam Budh Nagar with a further prayer that proceedings of the aforesaid case be stayed against the applicants. Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that there was some dispute regarding property and shareholding between the applicants and the brother of the opposite party no.2. It is argued that there is no evidence whatsoever to implicate the applicants in the present case. The allegations levelled against the applicants are totally false and vague. In so far as the allegation of conspiracy is concerned, there is no material on record to show that there has been meeting of mind between the accused persons. It is argued that the applicant no.1 is an old man aged about 86 years and is suffering from various old age diseases. Paragraph 27 of the affidavit has been placed for the same. In so far as the applicant no.2 is concerned, he is a lawyer by profession and by virtue of his association with the applicant no.1 he has also been roped in the present case with false allegations. It is argued that the present dispute arose due to business rivalry and is a civil dispute. Matter requires consideration. Issue notice to the opposite party no.2 returnable within four weeks. Opposite parties may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. Let the matter be listed on 03rd, August 2023. Till the next date of listing, no coercive action shall be taken against the applicants in the aforesaid case with the following condition:- (i) the applicants shall not leave India without the previous permission of the Court and if they have passport the same shall be deposited by them before the trial court within a period of one week, failing which, this order shall automatically stand vacated.” 14. A plain reading of this order shows that there was a condition in the application that the applicant shall not leave India without previous permission of the Court and the passport shall be deposited by them before the court below within a period of one week, failing which, this order shall automatically stands vacated. 15. Since, the applicants did not submit the passport in the court within a week, the opposite party no. 2 moved an application on 26.07.2023 stating that since the condition laid down by this Court has not been complied with, so the NBW may be issued and the trial may proceed. On this application, the Additional District & Sessions Judge-II/Special Judge (SC/ST) Act, District Court Gautam Budh Nagar has passed an order on 01.03.2024 which is as under : “6. I have heard the submission of the Ld. Counsel and Ld. ADGC representing the State. Later supported the version of the complainant/victim and perused the material on record. It is true that incident has occurred in 2012 and since then almost, a decade has passed and the accused has jumped the bail and violated the order of Hon'ble High Court dated 04.04.2023 & 06.09.2023. He also failed to deposit his passport as directed by the Hon'ble Court and has absconded this country. The accused is also disposing all the property out of which the property named above (1)- C-4/16, First Floor, Safdarjung Development Area, New Delhi & (2)- N-134A, 1st Floor, Panchsheel Park, New Delhi-110017, A-22 Mohan Cooperative, Industrial Estate, Mathura Road, Delhi 110044 has come to the notice of the complainant/victim and has, been brought on record before this court. This court is of the opinion that there is sufficient material on record for issuing proclamation u/s 82/83 along with the order of attachment of the property bearing no. C-4/16, First Floor, Safdarjung Development Area, New Delhi & (2)-N-134A, 1st Floor, Panchsheel Park, New Delhi-110017, A-22 Mohan Cooperative, Industrial Estate, Mathura Road, Delhi 110044. simultaneously so the absconder/accused Ram Dilwari may be brought within reach of the process of the court.
Decision
ORDER The application for issue of process u/s 82/83 of Cr.P.C against the absconder/accused Ram Dilwari in ST No. 688/2018 (State Vs. Ram Dilawari and Ors.) u/s 307,120-B of IPC, PS Sector 58 Noida Gautam Budh Nagar is hereby allowed. The office is directed to process the proclamation u/s 82/83 of Cr.PC through the concerned police station and execute this order through counter part in the Delhi jurisdiction after verifying the ownership of the named property. 16. That, the summoning order as well as the charge-sheet has already been challenged in two earlier proceedings in this court. The Court did not find merit in this matter and accordingly, disposed of with liberty to move a discharge application. 17. As far as the impugned order passed on the discharge application is concerned, it is settled principle of law that the Court has to look into and consider the material placed before the Court by the Investigating Agency while framing of charge or considering the accused for discharge. 18. In the matter of State of Orissa Vs Devendra Nath Padhi, 2005 (51) ACC 2001SC), the Hon'ble the Supreme Court had observed that for framing of charge and discharge it is only the material produced by the prosecution alone, which is to be considered for framing of charge or discharge. The relevant extract is reiterated underneath: “8. The expression "the record of the case" is used in S. 227 of the Code. Though the word "case" is not defined in the Code but S. 209 throws light on the interpretation to be placed on the word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit "the case" to the Court of Session and send to that Court "the record of the case" and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in S. 227 relate to the case and the documents referred in S. 209. That is the plain meaning of S. 227 read with S. 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. 16….The material as produced by the prosecution alone is to be considered and not the one produced by the accused….."