Proclaimed Offender Cannot Seek Quashing Of FIR Through Power Of Attorney Without Surrendering: Uttarakhand High Court

The Court observed that the extraordinary and inherent jurisdiction of the High Court cannot be invoked by an accused who is deliberately evading the process of law and has been declared a proclaimed offender.

The Court was considering two petitions seeking the quashing of criminal proceedings arising out of a commercial dispute. One of the petitions had been filed by an accused through his power of attorney holder after he had been declared a proclaimed offender and a lookout circular had been issued against him.

A Bench of Justice Rakesh Thapliyal observed: "It is settled principle of law, as has been held by the Hon’ble Apex Court as well as by different High Courts in the catena of decisions that an accused, who is declared to be a proclaimed offender cannot seek leave for quashing of an FIR or any such proceeding arising thereof without surrendering, the court will not exercise its extraordinary or inherent jurisdiction in favour of an individual, who is intentionally evading the process of law and is absconding, or has been declared a proclaimed offender and such an accused person cannot execute a power of attorney in favour of a power of attorney holder to invoke the jurisdiction of the High Court under section 482 of the Cr.P.C."

Senior Advocates U.K. Uniyal & T.A. Khan, and Pinky Anand appeared on behalf of the petitioner, while Himanshu Sain, AGA, represented the respondents.

Background

The petitions arose from criminal proceedings initiated on allegations of cheating, criminal intimidation and criminal conspiracy in relation to commercial transactions between business entities.

One petition was filed by two daughters of the principal accused seeking quashing of the FIR, charge-sheet, cognisance order and the entire criminal proceedings. The other petition was filed by the principal accused through his power of attorney holder seeking quashing of the charge-sheet, cognisance order and the criminal case pending against him.

During the investigation, the principal accused did not join the investigation despite notices issued by the investigating agency. Proceedings under Sections 82 and 83 Cr.P.C. were initiated against him, he was declared a proclaimed offender and a lookout circular was also issued. The investigating agency thereafter filed a charge sheet against him as an absconder.

Court's Observations

The Court first considered the preliminary objection regarding the maintainability of the petition filed by the principal accused through his power of attorney holder.

Referring to the Supreme Court's decision in T.C. Mathai v. District & Sessions Judge, the Court observed that the Code of Criminal Procedure does not contemplate an accused appearing through a power of attorney holder in criminal proceedings.

The Bench noted that the Supreme Court had categorically held: "In no case can the appearance of the accused be made through a power-of-attorney holder."

The Court observed that the issue before it was not merely whether a power of attorney holder could institute proceedings, but whether an accused who had deliberately remained absconding and had been declared a proclaimed offender could invoke the inherent jurisdiction of the High Court without first submitting to the jurisdiction of the criminal court.

The Bench held that an accused, who is declared to be a proclaimed offender, cannot seek leave for quashing of an FIR or any such proceeding arising thereof without surrendering. The court added that it will not exercise its extraordinary or inherent jurisdiction in favour of an individual who is intentionally evading the process of law and is absconding, or has been declared a proclaimed offender.

The Court further observed that "neither the lookout circular nor the declaration of proclaimed offender put to challenge, therefore, in such eventuality, the petition filed by Rakesh Mehra through power of attorney holder cannot be held to be maintainable."

Rejecting the contention that the affidavit subsequently sworn by the accused abroad cured the defect, the Court held: "The question is whether such an affidavit can be taken into consideration in order to cover up the lacuna. This court is of the firm opinion that such an affidavit is of no use, but to anyhow to evade the process of law."

The Court also examined the purpose of the lookout circular and observed that such a measure is intended to secure the presence of an accused during investigation and trial.

The Bench observed: "The process of lookout circular issued against him is to ensure the availability of the accused during the investigation or trial and to prevent the accused to circumvent the judicial process."

The Court noted that despite the interim protection granted earlier to facilitate his appearance before the trial court, the accused had neither joined the investigation nor appeared before the trial court.

Rejecting the explanation that the accused feared implication in other criminal cases, the Court observed: "Such an apprehension is nothing, but to avoid the judicial process and to avoid to face trial and amount to evade the process of law."

The Court accordingly concluded that the petition filed through the power of attorney holder was not maintainable.

The Bench held: "Thus, in view of the discussion as above, with regard to the maintainability of the petition filed by Rakesh Mehra, this court is of the view that the petition filed by him through power of attorney holder is not maintainable."

Turning to the merits, the Court rejected the contention that the dispute was purely civil in nature. It was observed that the investigating agency had collected documentary evidence, including audit reports, chartered accountant reports, and bank statements, during the course of the investigation.

The Court further noted that allegations regarding diversion of substantial amounts after registration of the FIR and the documentary material collected during investigation constituted sufficient material to proceed with the criminal trial.

The Bench observed: "This court in a writ jurisdiction as well as under section 482 Cr.P.C. cannot meticulously appreciate evidence and adjudicate upon its probative value... if the complaint discloses a cognizable offence and then is tried on the same set of facts, civil and criminal liability co-exist and existence of one does not exclude the other."

Conclusion

Holding that the petition filed by the proclaimed offender through his power of attorney holder was not maintainable and finding sufficient material collected during the investigation to proceed with the prosecution, the Uttarakhand High Court dismissed both petitions.

The Court vacated all interim orders and directed the trial court to proceed with the trial in accordance with the law without being influenced by any observations contained in the judgment.

Cause Title: Self Rakesh Mehra v. State of Uttarakhand & Ors.

Appearances

Petitioners: U.K. Uniyal and T.A. Khan, Senior Advocates, assisted by Advocate Mohd. Shafy; Pinky Anand, Senior Advocate.

Respondents: Himanshu Sain, AGA with Rangoli Purohit, Brief Holder for the State; Advocate Raj Kishore Chaudhary

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