Asgar @ Pakori vs State (Govt. of NCT of Delhi)

S. Muralidhar, J.—This appeal is directed against the impugned judgment dated 7th October 1999 passed by the learned Additional Sessions Judge (ASJ.), New Delhi holding the Petitioner guilty of the offence u/s 307 IPC. It is also directed against an order dated 8th October 1999 passed by the learned ASJ sentencing the Appellant to rigorous imprisonment for 5 years and fine of Rs. 2,000/- and in default of payment of fine, simple imprisonment for 2 months.

This appeal was admitted on 4th November 1999. By an order dated 12th March 2001 the Petitioner was admitted to interim bail for a period of 45 days on account of the recommended surgery of his wife. Thereafter on 25th July 2001 following order was passed when it was informed to this Court that the Appellant had not surrendered on the expiry of the bail period:

Crl.A. No. 548/99

In Crl.M. No. 439/2001 by the order dated 12th March, 2001, the sentence of Asgar @ Pakori, appellant was suspended for a period of 45 days from the date of his released (sic release) subject to his furnishing personal bond in the sum of Rs. 20,000/- with one surety in like amount to the satisfaction of trial court. Deputy Secretary, Tihar Jail has intimated that appellant has not surrendered till date. Sh.S. Gaur, Addl. Sessions Judge or his Successor, as the case may be, will take necessary steps to secure the presence of appellant immediately. Let a copy of this order be sent for doing the needful in the matter.

List on 3rd September, 2001.

By an order dated 14th March 2002 the learned ASJ was asked to give a report on the action taken for realization of the surety amount of Rs. 20,000/- since the Appellant had still not surrendered. On 6th May 2002 it was noticed that the surety amount had been deposited. However, the Appellant did not surrender even thereafter.

On 10th August 2004 the following order was passed:

Crl A No. 548/1999

The sentence of the appellant was suspended vide orders dated 12.3.2004 (sic 12.3.2001) for a period of 45 days only on the ground that his wife had to undergo some surgery. Thereafter, the appellant has neither surrendered nor appeared as and when the appeal was listed for disposal. The report received from SHO, P.S. Dr. Ambedkar Nagar on the NBW issued against the appellant shows that the appellant is not traceable at the address given.

Under the circumstances, the bail bonds of the appellant are forfeited. The Trial Court is directed to take steps for the re-arrest of the appellant and also proceed against the surety in accordance with law. The appeal be listed for further directions in accordance with law.

A copy of this order be sent to the Trial Court.

On 11th April 2005 the Court was informed that the Appellant was not able to be arrested and that he had been declared as proclaimed offender by following the due procedure. By an order dated 28th November 2008 an Amicus Curiae was appointed to represent the Appellant.

This Court has heard the submission of Mr. Navin Chawla, learned Amicus Curiae for the Appellant. His written notes of arguments have also been perused.

In Mukesh Vs. State, , a Division Bench of this Court has held that while there would be no justification to dismiss the appeals merely because the Appellant or his Advocate fails to appear, it would be justified in dismissing the appeal where, after obtaining liberty of bail, the appellant fails to appear.

It was observed in para 26 of the said judgment as under:

The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction articulated on several occasions by the Apex Court has emboldened us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and be enlarged on bail and thereafter to become untraceable. It is the bounden and pious duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to be a mute spectator or an instrument by which a convict escapes serving out his sentence. See Stirland v. Director of Public Prosecutions 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh. If the Court is derelict in doing its duty, the social framework will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by dismissing appeals, not in default or for non-prosecution, but because the proceedings in the Appeal manifest an abuse of the process of the Court and also an endangerment of the ends of justice. The inherent powers of the High Court, as pointedly preserved in Section 482 of the CrPC, are always to be used with care and caution. Dismissal of an appeal by the High Court should be in exercise of its inherent powers and should be exercised with the greatest circumspection and restraint.

It was further observed in the same judgment as under:

...where the Court has employed steps available to it to secure the presence of the convict. It would be justified where non-bailable warrants have not had the desired effect of ensuring the presence of the appellant/convict, or by completion of steps for declaring the convict as a proclaimed offender. Compliance with these provisions would leave no doubt in the mind of the Court that the convict has no intention of pursuing his appeal; that the filing of the appeal was only a charade and a strategem to frustrate the outcome of a just trial. Tolerance is called for where the convict has expiated his crime. The right to personal freedom, protected by Article 21 of the Constitution of India, cannot be rendered nugatory by a pretentious or punctilious performance of the motions of an appeal. In most cases the interests of a convict may not be adequately safeguarded by the appointment of advocates in legal aid schemes or by amicus curiae. The appellant would be satisfied only if his appeal is argued by an advocate of his choice. On the other hand, a party, which chooses not to participate in the hearing of his appeal, can scarcely complain of violations of his Fundamental Right to remonstrate against the curtailment of his personal freedom. A convict cannot abuse the process and defeat criminal justice.

On the facts of the present case, it is plain that after being granted interim bail on 12th March 2001, the Appellant chose to remain absconding for over eight years. Following the judgment of the Division Bench of this Court in Mukesh v. State, this appeal is dismissed. The State will however continue its efforts to track down the Appellant and take him into custody to serve out the remaining sentence.