* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 553/2009 SURESH KAUSHIK ..... Appellant Through: Mr. Ramesh Gupta, Sr. Adv. with Mr. Bharat Sharma, Adv. versus STATE OF NCT OF DELHI ..... Respondent Through: Mr. Amit Sharma, APP. CORAM: HON'BLE MR. JUSTICE V.K. JAIN O R D E R % 07.12.2009 This is an appeal against the order dated 29th May, 2009 passed by the learned Addl. Sessions Judge, whereby the appellant was convicted and fined under Section 350 of the Code of Criminal Procedure. A perusal of the record of the trial court would show that a notice addressed to SHO Police Station Nizamuddin was issued for 28th May, 2009, seeking a verification report in respect of the death of the accused Shorab Sheikh. A notice, as a witness, was also issued to the SHO for 28th May, 2009. The notice issued to the appellant, who is SHO Police Station Nizamuddin, was served for 28th May, 2009. He, however, did not appear on that date and sent a request for giving some other date on the ground that he was engaged in law and order duty on account of Punjab scenario. The process, on which verification report was sought by the learned Addl. Sessions Judge, was returned to the court with the report that 135, Hastsal Road, Uttam Nagar was not a complete address and, therefore, the summons could not be served. The learned Addl. Sessions Judge issued notice, purporting to be under Section 350 of the Code of Criminal Procedure, to SHO Police Station Nizamuddin for 29th May, 2009, directing him to verify the death of the accused Shorab Sheikh and file report on 29th May, 2009. A perusal of the process issued for 29th May, 2009 would show that it was served by Head Constable R.S. Rao on Smt. Anjum, wife of deceased- accused Shorab Sheikh. It is thus obvious that this notice was never served upon the appellant. Moreover, the process issued for 29th May, 2009 cannot be said to be the notice envisaged under Section 350 of the Code of Criminal Procedure. A bare perusal of Section 350 of the Code would show that if any witness being summoned to appear before a Court without just excuse neglects or refuses to attend the Court, and the Court is satisfied that it is expedient in the interests of justice that such a witness should be tried summarily, it may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this Section, sentence him to fine not exceeding one hundred rupees. The notice issued to the appellant for 29th May, 2009 does not give any such opportunity to him. Mr. Ramesh Gupta, learned senior counsel for the appellant states that no other notice was given to the appellant at any point of time before he was convicted and sentenced to pay a fine of Rs.100/-. Since neither the process issued by the learned Addl. Sessions Judge for 29th May, 2009 was served upon the appellant nor can it be said to be a notice envisaged under the aforesaid provision of the Code, the order passed by the learned Addl. Sessions Judge cannot be sustained in law. Since the process issued by the Court for 29th May, 2009 was not served upon the appellant and was not a notice as envisaged under the Code, I need not go into the question as to whether the appellant can be said to be a witness within the meaning of Section 350 of the Code of Criminal Procedure, when he admittedly was neither a witness for the prosecution nor for the defence and being SHO was merely directed to verify the death of an accused. For the reasons given in the preceding paragraphs, the impugned order is set aside. CRL.A. 553/2009 stands disposed of. If the fine has already been recovered from the salary of the appellant, it shall be refunded to him within four weeks. If any adverse entry has been made in the ACR of the appellant, on account of the order of conviction under Section 350 of the Code of Criminal Procedure, that entry shall also be deleted within that period. V.K. JAIN, J DECEMBER 07, 2009 Ag