CRMMO/259/2011 on 28 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. 259 of 2011 Date of decision: 28.12.2011 ________________________________________________________________ Aman Sachdeva son of Shri Darshan Lal, resident of BXX193, Subhash Nagar, Street No. 4, Phagwara, Punjab, at present residing at 855 Pear Court, Madera, California, 93638 (USA).

.....Petitioner. Versus State of Himachal Pradesh.

.....Respondent. Petition under Section 482 Cr.P.C.

Coram

The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. P.B.S. Sidhu and Mr. Janesh Gupta, Advocates. For the respondents: Mr. Anil Jaswal, Dy. AG. V.K. Sharma, J. (Oral). An accident involving the car, being driven by the petitioner, and a truck, being driven by the co-accused, had taken place near Mubarakpur on Gagret-Una road on 31st December, 2006. Consequently, FIR No. 273 of 2006, dated 31.12.2006, under Sections 279 and 337 IPC came to be registered against the petitioner and the truck driver. It is stated that wife of the petitioner, who was traveling in the car, being driven by him, had suffered injuries in the accident.

2. On completion of investigation, the police submitted final report to the learned trial court. However, whereas the truck driver appeared to face the trial, presence of the petitioner could 1 Whether reporters of Local Papers may be allowed to see the judgment? No.

not be procured despite due process of law and as a result he was ...2... declared a proclaimed offender vide order dated 21.05.2009, Annexure P-B. It is stated at the bar that by now two prosecution witnesses have already been examined in the case.

3. Against the foregoing background the petitioner has moved the present petition under Section 482 Cr.P.C. with a prayer for quashing the aforesaid FIR. In addition thereto a prayer for quashing the aforesaid order dated 21.05.2009 declaring the petitioner as a proclaimed offender has also been made.

4. By now it is fairly settled that an FIR can be quashed only if the allegations contained therein do not at all constitute the alleged offences. In the present case, a perusal of the FIR, placed on record as Annexure P-A, would go to show that such is not the situation in this case. Even otherwise, the learned trial court has already taken cognizance of the case and thereafter the co-accused has already been charged for the alleged offences. Had the petitioner appeared to face trial, in all probability, the learned trial court would have taken cognizance against him also and charged him as well for the alleged offences. In such circumstances, I am more than satisfied that no ground is made out for quashing the FIR.

5. However, insofar as the impugned order dated 21.05.2009, Annexure P-3, whereby the petitioner has been declared as a proclaimed offender, is concerned, suffice it to say that in essence the purport of such an order is to procure the presence of the accused to compel him to face trial and on his failure to appear, the consequential punitive action such as attachment of the property belonging to him follows. The learned ...3... counsel for the petitioner undertakes at the bar that in case a direction is issued to the petitioner to put in appearance before the learned trial court within reasonable time as presently he is abroad, he shall make himself available to face trial. However, in order to facilitate this process, the impugned order dated 21.05.2009 may be quashed. Prayer considered and allowed in the interest of justice, as in any case if the aforesaid order dated 21.05.2009 remains, the natural consequence which in any case might have already followed is to the effect that the trial against the petitioner stands separated from that of his co-accused and in case he is arrested and brought to the court at a latter stage a fresh trial shall have to be held against him.

6. In view of the above, the petition is partly allowed. Consequently, the impugned order dated 21.05.2009 is set-aside with a direction to the petitioner to appear before the learned trial court on the next date of hearing, which is stated to be already fixed for 16.02.2012. On appearance of the petitioner the learned trial Magistrate shall recall the witnesses already examined for cross-examination by the petitioners and shall thereafter proceed with the trial further in accordance with law.

7. The petition, so also pending Cr.MP(s), if any, stand disposed of in the above terms. Copy dasti.

(V.K. Sharma)

Judge 28th December, 2011 (virender)