Delhi District Court
State vs . Jamal @ Ranjha on 2 May, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Jamal @ Ranjha FIR NO. : 860/14, U/s 174A IPC PS : SEELAMPUR A. CIS No. of the Case : 1538/16 B. FIR No. : 860/14 C. Date of Institution : 04.10.2016 D. Name of the complainant : -NA-
E. Name of the Accused, his : Jamal @ Ranjha S/o Iqbal Parentage & Addresses Gazi, R/o K-288, New Seelampur, Delhi F. Representation on behalf of : Ms. Shivani Joshi, Ld. APP State for State G. Offence complained of : U/s 174A IPC H. Plea of the Accused : Pleaded not guilty and claimed trial.
I. Order reserved on : 05.04.2023 J. Date of Order : 02.05.2023 K. Final Order : CONVICTED
Brief Statement of Reasons for Decision of the Case
1. It is alleged against the accused Jamal @ Ranjha that he had failed to appear before the court of Dr. P. S. Malik, Ld. ASJ on 10.09.2014 as required by proclamation issued u/s 82 Cr.P.C. It is also alleged against the accused that he was declared a FIR No.860/14 State vs. Jamal @ Ranjha PS Seelampur Page No.1 of 9 proclaimed person by the said court vide order dated 10.09.2014. Accordingly, he stands charged for committing offence u/s 174A IPC.
2. The prosecution in support of its case has examined 04 witnesses. There testimonies in brief are as follows:
(i) PW1 SI Jitender Kumar he has deposed that on 16.12.2014 DO handed over the copy of Court order dated 10.09.2014 in which accused Jamal @ Ranjha was declared PO. Investigation was marked to him. He searched for accused at various places including his residential address available on record and near by localities. He got transferred to PS Welcome and deposited the case file to MHC(R), PS Seelampur. During his cross-
examination he has deposed that all the searches conducted by him in person. He denied the suggestion that he was never authorised to conduct search of accused at any point of time.
(ii) PW2 ASI Vijender Singh has deposed that on 16.12.2014 he was working as Duty Officer and received rukka Mark X sent by SHO, PS Seelampur for registration of FIR. On the basis of which the present FIR was registered. He made endorsement on the rukka. He handed over the copy of FIR and original rukka to SI Jitender for further action. The witness was not cross examined by accused despite given an opportunity.
(iii) PW3 Ct. Devender Singh joined the present investigation alongwith IO/ASI Khagnesh on 06.09.2016. They came to Karkardooma Court Complex at Court no.7 and identified the accused. IO /ASI Khagnesh arrested the accused vide arrest memo Ex. PW3/A and recorded his disclosure statement Ex. PW3/B. In his cross-examination the witness has stated that he FIR No.860/14 State vs. Jamal @ Ranjha PS Seelampur Page No.2 of 9 does not remember if any DD entry was made prior to proceeding before the Court. He denied the suggestion that he did not visit the Court on 06.09.2016 to Court no.7.
(iv) PW4 ASI Khagnesh. On 06.09.2016 got the information regarding arrest of accused who was declared PO in case FIR No.258/12. He had made production warrants application and accordingly on 06.09.2016 he alongwith Ct. Devender came to KKD Courts where accused was produced pursuant to production warrants. He arrested the accused, recorded his disclosure statement.
3. After the closing of prosecution evidence on 23.08.2019, all the incriminating evidences were put to the accused in his examination under S. 313 r/w 281 Cr. P. C. which was conducted on 09.12.2022. Accused did not wish to lead any DE and the matter was fixed for final arguments. Final arguments were heard. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
4. Section 174A of the Penal Code, 1860 reads as under:
"174A. Non-appearance 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 sub-section (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 sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
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5. Section 174A IPC is divided into two parts. First part deals with the situation where the proclamation is issued under Section 82(1) Cr.P.C. and when the accused failed to appear despite its publication, he is to undergo imprisonment upto three years or with fine or with both. The second part of Section 174A relates to the declaration issued by the Court under Section 82(4) Cr.P.C. wherein serious offences have been prescribed and despite declaring a person as proclaimed offender, when he fails to appear, the punishment provided is imprisonment upto seven years and payment of fine.
6. An argument was raised by Ld. Counsel for accused that Section 195 Cr.P.C. clearly barred the Court from taking cognizance of any offences punishable under Sections 172 to 188 IPC. Provision of Section 195 Cr.P.C. is mandatory and the Court has no jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing by the public servant.
7. In Maneesh Goomer vs. State, 2012(1)JCC 465 (Crl.M.C. 4208/2011) decided on 04.01.2012 Hon'ble Delhi High Court has categorically held that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code with effect from 23.06.2006.
8. Section 174A IPC was introduced in the Code with effect from 23.06.2006 and Section 195A Cr.P.C. which provides that no Court shall take cognizance of offences punishable under Sections 172 to 188 IPC (Both inclusive) or of the abetment of FIR No.860/14 State vs. Jamal @ Ranjha PS Seelampur Page No.4 of 9 committing the offence, except by complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate, was a part of the Criminal Procedure Code since 1974 when the new Criminal Procedure Code came into force. No corresponding amendment was brought into Section 195 (1) (a) in the year 2006 when a new offence, by adding Section 174A was introduced in Indian Penal Code. By no stretch of imagination, it can be inferred or presumed that Section 174A would be deemed to be included in between Section 172 to Section 188 IPC.
9. The Court in Maneesh Goomer (supra) held :
"....it may be noted that Section 174-A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner. "
10. In Moti Singh Sikarwar vs. State of U.P. and Ors, MANU/UP/2481/2016, decided on 29.11.2016 by the High Court of Allahabad it has been observed that bar created by Section FIR No.860/14 State vs. Jamal @ Ranjha PS Seelampur Page No.5 of 9 195(1) (a) Cr.P.C. would not apply to the provisions of section 174AIPC. It held:
"21. The reasons are as follows:
"1. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are non- cognizable and bailable, whereas Section 174-A I.P.C. which provides for punishment upto 7 years imprisonment and fine, in case the offender fails to appear at the specified place and the specified time, as required by the proclamation published under Section 82 Cr.P.C., is cognizable and non- bailable. The legislature was conscious of this fact and that is why while introducing Section 174-A in the I.P.C. in the year 2006, it made no corresponding amendment in Section 195(1)(a) Cr.P.C. so as to include Section 174-A I.P.C. in between all the non- cognizable offences and bailable from Sections 172 to 188 I.P.C.
2. It cannot be said that due to inadvertence, the corresponding amendment in Section 195(1)(a) Cr.P.C., was left to be made by the legislature. It is noteworthy that Section 195 has been correspondingly amended in the year 2006, by amending the exception clause of it. Had there been any intention on the part of the legislature to include Section 174-A I.P.C. in Section 195(1)(a) Cr.P.C. it would have definitely correspondingly amended Section 195(1)(a) Cr.P.C. also.
3.Section 154 of Code of Criminal Procedure provides for information in cognizable cases and the concept of "locus standi" has been completely washed off by this section, as any person can set the law into motion, in case any cognizable offence is noticed by him, by registering a first information report. The public interest demands that criminal justice should be swift and sure and the court should not let the guilty scot free only on the basis of mere some technicalities. Section 460 Cr.P.C. is also based on the same principle.
4. The basic principle of law is that one, who seeks equity should do equity. In other words the persons, who seeks equitable reliefs, should come before the court with clean hands. The accused has no right to choose the mode by which he is to FIR No.860/14 State vs. Jamal @ Ranjha PS Seelampur Page No.6 of 9 be prosecuted specially in the circumstances when he has failed to comply with the orders of the court and is prolonging the matter by filing one case after another.
5. The Hon'ble Delhi High Court in Maneesh Goomer's case (supra) has held that Section 195 Cr.P.C. has not been correspondingly amended so as to include section 174-A I.P.C., which was brought into the Penal Code with effect from 23rd June 2006 and there is no reason to deviate with the view of Hon'ble Delhi High Court."
22. In view of the above discussion, this court is of the considered view that the bar of Section 195 (1)
(a) Cr.P.C. is not applicable to the present case and a private person is competent to lodge a complaint or even an F.I.R. under Section 174-A I.P.C."
11. In A. Krishna Reddy v. CBI 2017 SCC OnLine Del 7266 :
(2017) 3 DLT (Cri) 391, Hon'ble Delhi High Court in para 29 has observed that:
"No separate investigation is required to be conducted as the orders of the Court declaring the petitioner to be Proclaimed Offender are part of the record in the main challan. Object and purpose to incorporate Section 174A IPC primarily is to ensure that the accused / suspects do not scuttle investigation or trial by remaining absconding without valid or sufficient reasons. In such a scenario, when the suspects or accused abscond, possibility of valuable evidence to be washed away cannot be ruled out."
12. In State vs. Proclaimed Offenders of Delhi and others, Crl.No.2021/2010, decided on 11.08.2010, Hon'ble Delhi High Court has held that supplementary charge-sheet under Section 174A IPC can be filed or the offence under Section 174A IPC can be added in the main charge-sheet. Apparently, no fresh investigation was required to be carried out.
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13. In Sunil Tyagi vs. Govt. of NCT of Delhi and Another CRL.M.C. 4438/2013 & CRL.M.A. 15894/2013, Hon'ble Delhi High Court has observed that:
"21. The legislature by enacting Section 174A IPC has further penalised the non-appearance of a proclaimed offender. The very basis of fair trial is threatened if an accused/suspect is declared as a proclaimed offender without proper service, or if proclamations and non-bailable warrants are issued in a routine manner.
22. The legislature seeing the growing number of Proclaimed offenders inserted Section 174A IPC by way of Clause 44 of the CrPC. (Amendment) Act, 2005 (25 of 2005) which was brought into force w.e.f. 23rd June, 2006 vide Notification No. SO 923(E) dated 21st June, 2006, hoping that it would be a deterrent for persons fleeing from justice.
23. Section 174A IPC penalizes the non- appearance of a person as required by a proclamation published under. In case of non- appearance consequent to a proclamation under Section 82(1) of the Code for a term up to three years/fine/both and in case of a declaration under Section 82(4) of the Code (in respect of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC for a term upto seven years with fine.
Since non-appearance of accused in response to the proclamation under Section 82 CrPC has been made a substantive offence, the provisions of Section 174A IPC are required to be invoked against absconding accused. When the accused fails to appear before the court in response to the proclamation issued under Section 82(1) CrPC, within the period of 30 days from the date of proclamation, or fails to appear at the specified place and time required by the proclamation issued under Section 82(4) CrPC, he is punishable with imprisonment for a term which may extend to three years or with fine or with both and imprisonment for a term which may extend to seven years or with fine or both, respectively."
14. In the present case, proclamation under S. 82 Cr. P.C. was issued against accused Jamal @ Ranjha and he was directed to FIR No.860/14 State vs. Jamal @ Ranjha PS Seelampur Page No.8 of 9 appear before the court of Dr. P. S. Malik, Ld. ASJ on 10.09.2014. As per the order, Ld. ASJ has observed that accused Jamal @ Ranjha was absent and recorded the statement of process server HC Netrapal Singh. Ld. ASJ has reached to the conclusion after going through the statement of process server that accused Jamal @ Ranjha is absconding from the process of law and evading his appearance before the Court. Therefore, process under S. 82 Cr. P. C. was duly executed against accused Jamal @ Ranjha as per the procedure laid not in the section itself including publication and public announcement, despite that he failed to appear.
15. Thus, in view of the above discussion, accused Jamal @ Ranjha is found guilty in the present case and resultantly, he stands convicted in the present case. Let the convict be heard separately on quantum of sentence.
Digitally signed by VIPULVIPUL SANDWAR SANDWAR Date:
2023.05.02 16:41:37 +0530 Announced in the open (VIPUL SANDWAR) Court on 02nd May 2023 MM-02/NE/KKD COURTS FIR No.860/14 State vs. Jamal @ Ranjha PS Seelampur Page No.9 of 9