Delhi District Court
Ram Pal Singh vs The State (Nct Of Delhi) on 13 March, 2015
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
SESSIONS JUDGE4 (SOUTH), SAKET, NEW DELHI
Criminal Appeal No. 4/15
Unique ID No.: 02406R0074662015
In the matter of:
Ram Pal Singh,
S/o Sh. Gopi Singh,
R/o Nangla Devi,
Police station - Onchha,
District Mainpuri,
Uttar Pradesh ......Appellant
VERSUS
The State (NCT of Delhi) .......Respondent
Date of Institution : 04.3.2015
Date of Reserving order : 13.3.2015
Date of pronouncement : 13.3.2015
For Appellant : Mr. Shiv Shankar Yadav, Advocate.
For Respondent : Mr. WasiurRahman, Additional Public
Prosecutor.
JUDGMENT :
This appeal under section 374 of the Code of Criminal Criminal Appeal No. 4/15 Page no. 1 of 16 Procedure, 1973 (Cr.P.C.), preferred by appellant Ram Pal Singh (hereinafter referred to as 'the accused') against respondent State, is directed against the judgment and order on sentence dated 22.01.2015 and 27.01.2015 respectively, passed by the court of Sh. Tarun Yogesh, the Additional Chief Metropolitan Magistrate (ACMM), South, Saket, New Delhi, whereby, in case no. 112/2/13 entitled State v. Ram Pal Singh, arising from first information report (FIR) no. 112/08 registered at police station Saket, New Delhi, the accused was convicted for commission of offence punishable under section 174A of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine in the sum of Rs.5,000/. In the event of making default in payment of the fine, the accused was further ordered to undergo imprisonment for a period of six months.
2. The circumstances giving rise to the appeal are that on 13.12.2008, at the instance of one Laurent Guiraud, General Manager, SOBO Hospitality Private Limited, FIR No. 112/08 was registered at police station Saket; and the accused was booked for commission of offence punishable under section 381 of the Indian Penal Code. Mr. Guiraud informed the police that on the night of 11.12.2008, a theft had taken place in the premises of SOBO Hospitality Private Limited, Criminal Appeal No. 4/15 Page no. 2 of 16 located at MGF Metropolitan Mall, Saket District, New Delhi; that the safe, make SAFE WELL Model, EQK 25, operated with a digital coded keyboard, and containing Rs.4,57,000/ was stolen from the cashier cabin located in the main kitchen of the restaurant; that the code to open the safe was 658; that on that night, four guards from Times Detective and Security Pvt. Ltd., located at 1, Vinobha Puri, Lajpat NagarII, New Delhi, appointed by him (Mr. Guiraud) to ensure the security of the premises, were on duty, and their names were Rampal s/o Gopi Singh, Dhananjai Singh s/o Ram Nandan Singh, Dheeraj s/o Tapeshwar Singh and Sandhu Kumar s/o Devkant; that duty time of the said four guards started from 8.00 pm to 8.00 am; that at the time of the theft, at the main entrance gate, next to the safe location, accused Rampal was the guard. Mr. Guiraud further informed the police that in the morning, it was found from guard Dhananjai that Rampal was missing from his duty around 5.00 to 5.30 am and according to the circumstances, he did not report to the company and therefore, there was suspicion that he was involved in the theft of safe containing Rs.4,57,000/. After registration of the FIR, during the investigation, efforts were made to arrest the accused, but he could not be arrested, so, on 03.9.2009, an application for issuance Criminal Appeal No. 4/15 Page no. 3 of 16 of nonbailable warrant was made by the investigating officer (IO) before the learned Metropolitan Magistrate, which was allowed, and a warrant of arrest, returnable on 25.9.2009, was issued against the accused. The warrant could not be executed, therefore, on 29.9.2009, an application was made by the IO before the learned Metropolitan Magistrate to issue proclamation under section 82 of Cr.P.C. against the accused, and the said application was allowed and proclamation under section 82 of Cr.P.C. was issued against the accused returnable on 07.11.2009. The proclamation under section 82 of Cr.P.C. was executed on 05.10.2009 and returned to the court of the learned Metropolitan Magistrate on 07.11.2009. On 07.11.2009, despite publication of proclamation under section 82 of Cr.P.C., the accused did not appear before the learned Metropolitan Magistrate, therefore, process under section 83 of Cr.P.C. was issued against him and his property was attached. Subsequently, on 28.6.2010, after examination of constable Ram Avtar, who published the proclamation against the accused, and report Ex. CW1/A, the learned Metropolitan Magistrate declared the accused as a proclaimed offender.
3. On 07.8.2010, after investigation, a police report under section 173 of Cr.P.C. was put up against the accused without his Criminal Appeal No. 4/15 Page no. 4 of 16 arrest. The learned Metropolitan Magistrate took cognizance of the offences and posted the matter for proceedings under section 299 of Cr.P.C. Before commencement of proceedings under section 299 of Cr.P.C., however, on 27.4.2011, the accused was arrested and brought before the learned Metropolitan Magistrate. Subsequently, he was released on bail.
4. On 09.7.2012, after hearing the Assistant Public Prosecutor and the accused and his counsel, accused Ram Pal Singh was charged with the commission of offence punishable under section 381 of the Indian Penal Code. On the same day, he was separately charged with the commission of offence punishable under section 174A of the Indian Penal Code. The charges were read over and explained to the accused to which he did not plead guilty and claimed trial.
5. During the trial, the prosecution examined five witnesses namely, PW1 Laurent Guiraud, PW2 Assistant sub Inspector (ASI) Ravinder Singh, PW3 Head Constable (HC) Vikram Singh, PW4 Sub Inspector (SI) Virender Singh and PW5 Inspector Praveen Kumar. After the prosecution evidence, the accused was examined under section 313 of Cr.P.C. During his examination, the accused expressed Criminal Appeal No. 4/15 Page no. 5 of 16 his innocence and chose not to lead evidence in his defence.
6. After hearing the Assistant Public Prosecutor and counsel for the accused, on 22.01.2015, the learned trial court pronounced its judgment and acquitted the accused of offence punishable under section 381 of the Indian Penal Code. The accused was, however, convicted for commission of offence punishable under section 174A of the Indian Penal Code. Subsequently, by order dated 27.01.2015, as already mentioned, the accused was sentenced to undergo rigorous imprisonment for a period of two years and to pay fine in the sum of Rs.5,000/. In the event of making default in payment of the fine, the accused was further ordered to undergo imprisonment for a period of six months.
7. Aggrieved by the judgment and the order on sentence, the accused has preferred the present appeal. The trial court record has been called.
8. I have heard the accused in person and the Additional Public Prosecutor for the respondent/State and have gone through the trial court record carefully.
9. Having drawn my attention on the petition of appeal and the trial court record it is submitted by the accused that he had no Criminal Appeal No. 4/15 Page no. 6 of 16 knowledge about the proclamation under section 82 of Cr.P.C issued against him. It is further submitted by the accused that the proclamation under section 82 of Cr.P.c. was not duly published, therefore, at the strength of the said proclamation, he could not have been put on trial for the commission of offence punishable under section 174A of the Indian Penal Code. It is further submitted by the accused that the trial court has erred in convicting him for the commission of offence punishable under section 174 of the Indian Penal Code, and the judgment of conviction passed by the trial court is liable to be reversed, and he is entitled to be acquitted of offence punishable under section 174A of the Indian Penal Code. It is further submitted by the accused that the appeal be allowed.
10. Per contra, it is submitted by the learned Additional Public Prosecutor for the respondent that for a long time the accused avoided the process of law, therefore, a warrant of arrest was issued against him, and since his presence could not be secured by way of such warrant, proclamation under section 82 of Cr.P.C. was issued against him. It is further submitted by the learned Additional Public Prosecutor that even after publication of the proclamation, the accused did not appear before the learned Metropolitan Magistrate, therefore, Criminal Appeal No. 4/15 Page no. 7 of 16 he was rightly put on trial for the commission of offence punishable under section 174A of the the Indian Penal Code, and was rightly convicted for the offence charged against him. It is further submitted by the learned Additional Public Prosecutor that the appeal is without merit and the same be dismissed.
11. I have given my thoughtful consideration to the submissions made on behalf of the parties.
12. As already mentioned, having been put on trial for the commission of offences punishable under section 174A and 381 of the Indian Penal Code, by impugned judgment, the accused was acquitted of offence punishable under section 381 of the Indian Penal Code, but was convicted of offence punishable under section 174A of the Indian Penal Code. Section 174A of the Indian Penal Code, which was inserted in the said Code by section 44 (b) of Act 25 of 2005 and came into effect on 23.6.2006, and prescribes punishment for non appearance in response to a proclamation under section 82 of Cr.P.C., reads as under:
174A. Nonappearance in response to a proclamation under section 82 of Act 2 of 1974.--Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with Criminal Appeal No. 4/15 Page no. 8 of 16 imprisonment for a term which may extend to seven years and shall also be liable to fine.
13. While convicting the accused for the commission of offence punishable under section 174A of the Indian Penal Code, the learned trial court observed as follows:
15. As regards offence U/s 174A IPC, ASI Ravinder Singh (PW02) has deposed of having visited village Nangla Devi, PS Oncha, DistMainpuri, UP on 21.01.2010 where he was informed about agricultural land of accused from the office of Tehsildar, Dist Mainpuri,UP. He has further deposed to have obtained process U/s 83 Cr.P.C. which he handed over to concerned District Magistrate and the process was executed through tehsildar, Mainpuri by attaching the agricultural land in the name of accused. Copy of proceedings U/s 83 Cr.P.C.
have been referred as Ex. CW 2/A and his report upon process U/s 83 Cr.P.C. has been proved as Ex. CW 2/B. PW02 was subjected to crossexamination by defence and testified to have made his departure and arrival entry at local police station, Oncha besides denying the suggestion of having never visited the house of accused.
16. HC Vikram Singh (PW 03) and SI Virender Singh (PW04) are formal witness who have deposed to have apprehended accused Ram Pal Singh on 27.04.2011 and have proved kalandara U/s 41.1 Cr.P.C. as Ex. PW 3/A. Arrest memos, personal search memo, disclosure statement and pointing out memo have been proved as Ex. PW 3/B to Ex. PW 3/F and both witnesses have further deposed to have gone to the house of accused at village Nangala Devi, PS Onchha, Dist Mainpuri,during his one day police custody, but no recovery could be effected from his house. During their crossexamination, both police witnesses have denied the suggestion of having not visited house of accused.
17. Though, defence has contended of having no knowledge about proclamation & attachment proceedings, but, record keeper, Dist Mainpuri Tehsil was dropped from the list of witnesses upon statement of accused recorded U/s 294 Cr.P.C. as he did not dispute the authenticity of report. Copy of execution proceedings filed in court have been proved by ASI Ravinder Singh (PW02) as Ex. CW 2/A and the testimony of witness has remained unscathed despite being subjected to crossexamination by ld. defence counsel. Statement of Ct. Ram Avtar qua proclamation U/s 82 Cr.P.C. was recorded on 28.06.2010 and his report has been proved as Ex. CW 1/A. Accused Ram Pal Singh was declared absconder (proclaimed person) by court vide order dated Criminal Appeal No. 4/15 Page no. 9 of 16 28.06.2010 upon statement of Ct. Ram Avtar and DD entry recorded at PS Onchha, Dist Mainpuri.
18. Therefore, considering the statement of process server Ct. Ram Avtar and deposition of ASI Ravinder Singh (PW02) who has proved execution proceedings U/s 83 Cr.P.C. as Ex. PW 2/A, prosecution has successfully proved its allegation qua offence U/s 174A IPC against accused Ram Pal Singh as he failed to appear in court on 07.11.2009 and thereafter despite execution of proclamation U/s 82 Cr.P.C. on 05.10.2009 and proceeding U/s 83 Cr.P.C. being executed by tehsildar for attaching his share of agricultural land in joint family property.
19. Though, Adv. Sh. S. S. Yadav has adverted to order dated 21.12.2011 for submitting about satisfaction of court regarding accused having not deliberately evaded execution of warrant and having no knowledge about proclamation proceedings. However, such observation of court recorded in its order dated 21.12.2011 has to be read in the limited context of disposal of application for restoration of property as no trial for offence U/s 174A IPC had ensued and no evidence was led on record by prosecution, so as to record any such observation. The submissions of ld. defence counsel does not satisfy the court as accused has maintained stoic silence regarding proclamation and attachment proceedings by claiming ignorance about any such proceedings. However his silence does not cut any ice as accused has failed to lead any defence evidence in support of his contention of being employed with Shift Marshal Security Service, Kanpur, UP. The fact of his employment at Kanpur being especially within his knowledge, burden of proving his employment with Shift Marshal Security Service, Kanpur, UP, lies upon accused which he has failed to discharge as per section 106 of Indian Evidence Act, 1872.
20. It is also pertinent to note that statement of Sh. Rajender Singh (elder brother of accused) was recorded by police during course of investigation wherein the brother claimed that accused and his family members were not present in his house and would be informed upon his return. Therefore, considering that share of accused in joint agricultural land with his siblings was attached U/s 83 Cr.P.C. by court's order, yet accused did not appear in court himself, but was produced subsequent to his arrest by police upon kalandara U/s 41.1 Cr.P.C., his application for seeking restoration of attached property cannot be cited as defence on the ground of ignorance about proclamation and attachment proceedings. At this stage, it is necessary to refer to the conduct of accused Ram Pal Singh for adjudicating upon his guilt for offence U/s 174A IPC. Illustration (i) of Section 8 of Indian Evidence Act, 1872 is reproduced below for reference : Illustration (i) A is accused of a crime.
Criminal Appeal No. 4/15 Page no. 10 of 16 The facts that, after the commission of the alleged crime, he absconded, or was in possession of property of the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
21. Therefore, considering execution of proclamation U/s 82 Cr.P.C. on 05.10.2009, attachment of his share in joint agricultural land U/s 83 Cr.P.C. and accused Ram Pal Singh being declared absconder by court on 28.06.2010, prosecution has successfully proved its allegation against accused for offence U/s 174A IPC. Accused Ram Pal Singh S/o Sh. Gopi Singh therefore stands convicted for offence U/s 174A IPC.
14. From a reading of the impugned judgment it can be discerned that while convicting the accused, the learned trial court took into account, inter alia, the statement of constable Ram Avtar, who published the proclamation under section 82 of Cr.P.C. against the accused, his report Ex. CW1/A and the fact that on 5.10.2009 the proclamation was published against the accused, but he did not appear before the court on 7.11.2009. The learned trial court also discussed the circumstances in which the process under section 83 of Cr.P.C. was executed against the accused, and the circumstances in which he was arrested and brought before the court.
15. The law is well settled that in a criminal trial the burden of proof, to prove all the ingredients of the offence charged against the accused, is on the prosecution; and that in such trial the prosecution must prove its case beyond reasonable doubt. The silence of the accused cannot be treated as admission of guilt by him.
Criminal Appeal No. 4/15 Page no. 11 of 16
16. To hold a person guilty of offence punishable under section 174A of the Indian Penal Code it is sine qua non that he fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of Cr.P.C. Subsection (1) of section 82 of Cr.P.C. reads as follows:
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (emphasis added)
17. Further subsection (2) of section 82 of Cr.P.C., which prescribes the manner in which the proclamation under subsection (1) of section 82 of Cr.P.C. is to be published, reads as follows:
(2) The proclamation shall be published as follows:
(i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) A copy thereof shall be affixed to some conspicuous part of the Court house;
(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (emphasis added)
18. In the present case, the trial court record reveals that on 3.9.2009 a warrant of arrest was ordered to be issued against the Criminal Appeal No. 4/15 Page no. 12 of 16 accused, followed by issuance of proclamation under section sub section (1) of section 82 of Cr.P.C. on 29.9.2009 returnable on 7.11.2009. As per the record of the trial court, pursuant to order dated 29.9.2009 passed by the learned Metropolitan Magistrate, on the same day, a process, purporting to be proclamation under subsection (1) of section 82 of Cr.P.C., returnable on 7.11.2009 was issued. The said proclamation in writing has not been tendered in evidence by the prosecution and no mark has been put on it. However, as the same is part of judicial record, its contents can be taken into account. The image of the proclamation dated 29.09.2009 is as follows:
Criminal Appeal No. 4/15 Page no. 13 of 16
19. From a perusal of the proclamation dated 29.09.2009, which was issued against the accused, it can be discerned that it is not bearing the name of the court which issued it. It is also not bearing the place and time, as required under clause (i) of subsection (2) of section 82 of Cr.P.C., where the accused was supposed to appear on 7.11.2009.
20. Further the trial court record does not indicate that on 7.11.2009, the day the process was returned to the court, the name of the accused was called and he did not appear.
21. While convicting the accused, the learned trial court took into account the statement of constable Ram Avtar, who was examined by the learned Metropolitan Magistrate 28.6.2010, while the matter was still under investigation; and his report Ex. CW1/A, on the reverse side of the proclamation. During the trial the said constable Ram Avtar, however, was not examined as a witness by the prosecution, and no opportunity for his crossexamination was afforded to the accused. In the opinion of the court, in the absence of calling the said constable Ram Avtar as a prosecution witness, the learned trial court could not have relied upon his statement in prejudice to the accused. Moreover, a perusal of the statement of the said constable Ram Avtar, recorded on Criminal Appeal No. 4/15 Page no. 14 of 16 28.6.2009, reveals that contrary to the statements made by him in report Ex. CW1/A that the proclamation was also published by way of munadi, he did not publish the proclamation under section 82 (1) of Cr. P. C. by publicly reading the same, including by way of munadi.
22. The position that emerges from the above discussion is this: the proclamation that was issued against the accused did not specify the court which issued it; the proclamation did no mention as to at which place and at what time the accused was required to appear on 7.11.2009; that on 7.11.2009, after return of the process, the name of the accused was not called so that he could appear before the court; and that as per the statement of constable Ram Avtar he did not publicly read or caused to be read the proclamation. Thus the proclamation as well as its publication was not as per law.
23. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all (see: Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422, Nazir Ahmad v. King Emporer, AIR 1936 Privy Council 253 and Taylor v. Taylor, (1875) 1 Ch D 426. In the present case the proclamation under section 82 of Cr.P.C. against the accused was neither issued as per law nor published Criminal Appeal No. 4/15 Page no. 15 of 16 as per law, thus the prosecution (respondent) failed to prove its case against the accused.
24. To sum up, since the prosecution failed to prove the ingredients of section 174A of the Indian Penal Code, therefore, the conviction of the accused is bad and not sustainable in law. The appeal is allowed. The judgment dated 22.01.2015 of the learned trial court, in so far as it pertains to conviction of the accused for the commission of offence punishable under section 174A of the Indian Penal Code, and the order on sentence dated 27.01.2015 are reversed and set aside. Accused Ram Pal Singh is acquitted of offence punishable under section 174A of the Indian Penal Code. Subject to the compliance of the provisions of section 437A of Cr.P.C., the accused be set at his liberty forthwith. Fine amount, if any, deposited by the accused be refunded as per rules. The file of the appeal be sent to records. Trial court record be sent back alongwith a copy of this judgment.
Pronounced in the open court (Manoj Kumar)
th
on 13 of March, 2015 Additional Sessions Judge4
South District:Saket Courts:
New Delhi
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