"In the present case it is not in dispute that at present a complaint vide FIR No.89/2003 under Section 406/498A IPC is pending against the petitioner and the chargesheet has been filed. The said complaint is pending before the Metropolitan Magistrate, Delhi wherein the petitioner has also been declared as `Proclaimed Offender' by the order dated 21st August, 2004 impugned in this writ petition. It is also not in dispute that a warrant of arrest emanating from the above complaint exists at present against the petitioner."
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA
Date of Decision : 20th October, 2005
W.P.(C) 16976/2005 & CMS 10945-46/2005(Exemption/stay)
RAJIV TAYAL ... Petitioner
Through S/Sh. H.S. Phoolka, Senior
Advocate with Israel Ali &
S.S. Ray, Advocates
UOI & ORS. Respondents
Through Mr. Kailash Gambhir with
Mr. Gaurav Sharma for respondent No.1.
Ms. Sujata Kashyap with
Mr. Neeraj Kumar for respondent Nos.2-3.
Mr. Arvind Kr. Gupta for respondent No.4.
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE H.R. MALHOTRA
MUKUL MUDGAL J.(ORAL)
1. Rule DB. With the consent of the learned counsel for the parties, the writ petition is taken up for final hearing.
2. This writ petition under Articles 226 and 227 of the Constitution of India challenges the Orders dated 23rd August, 2005 and 30th August, 2005 passed by the Vice Consul, Consulate General of India, New York, USA. This order was passed on the directions of the respondent No.1, namely, the Ministry of External Affairs, New Delhi for impounding the passport of the petitioner. The other major prayer made in the writ petition challenges the Order dated 21st August, 2004 passed by the learned Metropolitan Magistrate in FIR No.89/2003 under Section 406/498A IPC P.S. Subzi Mandi, Delhi declaring the petitioner as `Proclaimed Offender'. The petitioner inter alia challenges the vires of the Section 10 (3)(e) & (h) of Passport Act, 1967(hereinafter referred to as the `Act') as well as the validity of Article 14, 19 and 21 of the Constitution of India.
3. The Section 10 (3)(e) & (h) of the Act the validity of which is under challenge in this petition reads as follows:-
“10.Variation, impounding and revocation of passports and travel documents._
x x x x x x
x x x x x x
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;
x x x x x x
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.”
In the present case it is not in dispute that at present a complaint vide FIR No.89/2003 under Section 406/498A IPC is pending against the petitioner and the chargesheet has been filed. The said complaint is pending before the Metropolitan Magistrate, Delhi wherein the petitioner has also been declared as `Proclaimed Offender' by the order dated 21st August, 2004 impugned in this writ petition. It is also not in dispute that a warrant of arrest emanating from the above complaint exists at present against the petitioner.
4. Mr. Phoolka, the learned senior counsel, appearing for the petitioner submits that this action of summoning the petitioner violates the Articles 14, 19 and 21 of the Constitution because the petitioner is a person who is abroad for gainful employment. The effect of the petitioner's answering the summons would be to disrupt his employment in USA and may militate against the immigrant status sought by him. He submitted that insistence on his presence in the Court of the Metropolitan Magistrate violates his rights under Article 14, 19 and 21. We are unable to appreciate this plea. A person merely by going abroad cannot claim a status superior to that of a citizen of India. Since any citizen accused in India of a similar offence would also have to obey the summons and appear before the Magistrate, mere stationing of the petitioner in the USA cannot give him any rights superior to those of an Indian citizen. Thus there is no violation of Article 14. Even if the restriction which emanates from the effect of the summons by the Magistrate may affect the petitioner's right to movement under Article 19(1)(d) such restriction certainly falls within Article 19(5) and is a reasonable restriction imposed by a law made by the State. Similarly even if the petitioner's employment guaranteed by Article 19 (1)(9) is affected by the impugned order under the Passport Act, such an order has been passed under the Passport Act which imposes a reasonable restriction on the petitioner's right under Article 19(6) of the Constitution. Similarly the restrictions complained of in the writ petition emanate from a procedure established by law i.e., Passport Act & the IPC and Cr.P.C., and Article 21 thus cannot be said to be violated. There is thus no merit in the petitioner's plea as to the invalidity of Section 10(e) & (h) of the Act as being violative of Articles 14, 19 and 21 of the Constitution and the plea of constitutional validity thus stands rejected.
5. In so far as the writ petition on merits is concerned, it seeks to quash the order of 21st August, 2004 passed by the learned Metropolitan Magistrate which reads as follows:-
Present : I.O., S.I. Prahlad Singh. Heard. Perused. It is stated that there is no extradition treaty with U.S. Till the time the accused is declared P.O., or charge sheet is filed. It is also stated that the address of the accused at America is known to the victim or investigating agency. Whereas the accused has the knowledge of NBWs issued against him and he is in touch with his parents. Correspondence supporting the contention is also on record. Proceedings u/s 82/83 are complete on his last known address. In these circumstances I am satisfied that accused is absconding whereas publication in America is not practical unless the address of the accused is known. Hence I declare accused as P.O., in the matter.
6. It is not in dispute that the petitioner is aware of this order. The petitioner's parents' Crl.M.(M) No.1592/2003 was disposed of on 21st April, 2003 by the learned Single Judge of this Court when they moved for their anticipatory bail in respect of the aforesaid FIR No.89/2003. The aforesaid order of 21st April, 2003 reads as follows:-
Learned counsel for the complainant submits that the complainant's husband who is in USA, may also be given protection but he should be asked to come to India, at least, once for sorting out the disputes with the complainant. He submits that in this case there is a fair chance that the couple may re-unite and as such efforts are required to be made for exploring the possibility of their re-union.
Learned counsel for the petitioners
prays for some time so that the petitioners may contact their son in U.S.A. and ask him to come to India for some time so that the negotiations may start and the controversies are amicably resolved.
Till the next date, in the event of their arrest, the petitioners shall be released on bail upon their executing personal bonds in the sum of Rs.30,000/- each with one surety each in the like amount to the satisfaction of the Arresting Officer. The petitioners shall, however, join investigation as and when required.
Application on behalf of the husband of the complainant may be moved in the meanwhile, if so desired.”
It is not in dispute that the petitioner is aware of this order though his strenuous plea is that only his parents were aware of the order passed in Crl.M.(M) No.1592/2003 on 21st April, 2003.
7. The above order also shows that the petitioner's parents were in touch with the petitioner and it is not possible to believe that the petitioner was not aware of the pending proceedings in the Court of Metropolitan Magistrate. This Court is informed that in spite of the above order the petitioner did not visit India to sort out the dispute. Even this Court made efforts to settle the dispute by suggesting a mutual settlement but the settlement fell through as the petitioner was not willing to accept the settlement suggested by this Court.
8. We have an interesting situation where the petitioner seeks to quash the order dated 21st August, 2004 and yet refuses to join the proceedings pending before the Metropolitan Magistrate largely on the ground that he is now residing in USA and subject him to the criminal process in India would be an unfair burden as is evident from the challenge raised earlier to the constitutional validity of the Passport Act and rejected by this Court. The petitioner also submits that he has not yet been served with the summons. The petitioner's counsel has further submitted that the investigation in his case ought to be conducted by sending him a questionnaire and he should not be asked to join the investigation in India. The acceptance of such a plea would give a premium to the petitioner/accused who happens to travel abroad and it will thus be open to such an accused/petitioner to misuse the process of law to make a mockery of the Indian judicial system by asking for such a special procedure totally opposed to the principles of the criminal jurisprudence. The petitioner was repeatedly asked by this Court to join the proceedings before the Metropolitan Magistrate when the Court was prepared to provide him suitable protection against his arrest or any other penal consequences in respect of his passport, but the petitioner declined to do so and even today inter alia insists that the summons must be served on him before he is required to answer it. We cannot countenance the conduct of a party who while seeking to quash the order of the learned M.M., nevertheless declines to join proceedings on the hypertechnical plea of the summons not having been served on him notwithstanding the protection offered by this Court.
9. Accordingly we are of the view that in any event the petitioner's conduct disentitles him for any discretionary relief under Article 226 of the Constitution even if a case for intervention was made out. Consequently the writ petition is dismissed. The order of status quo dated 5th September, 2005 stands vacated.
Sd/- MUKUL MUDGAL, J
OCTOBER 20, 2005 H.R. MALHOTRA, J