Delhi District Court
State vs Manoj Kumar on 13 September, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Kalu @ Trilok & Ors.
FIR NO. : 34/01, U/s 380/411/457/34 IPC
PS : New Usmanpur
A. CIS No. of the Case : 462472/2015
B. FIR No. : 31/2001
C. Date of Institution : 11.04.2009
D. Date of Commission of Offence : 01.11.2001 E. Name of the complainant : Mahesh Kumar Sharma S/o Lakshan Dass Sharma, R/o D-455, Gali no.4, Gamri Extension, Delhi F. Name of the Accused, his : (1) Kalu @ Trilok Singh Parentage & Addresses S/o Satpal, R/o D-835, Gali no.20, Bhajanpura, Delhi, (2) Manoj S/o Rambir Giri, Gali no.22, Village Gamri, Subhash Gujjar Ka makan, Bhajanpura, Delhi (abated vide order dated 31.05.2012) and (3) Mehtab S/o Pyare Khan, R/o D-54, Gali no.5, Gamri Extension, Bhajanpura, Delhi FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.1 of 26 (declared a PO vide order dated 05.12.2012) G. Representation on behalf of : Ms. Amandeep Kaur, State Ld. APP H. Offence complained of : U/s 380/411/457/174A/34 IPC I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 31.08.2024
K. Date of Order : 13.09.2024
L. Final Order : Acquitted for the
offence under section
380/457/411 IPC and
convicted for the
offence under section
174A IPC
Brief Statement of Reasons for Decision of the Case
1. Briefly stated the case of the prosecution is based on the written complaint of the complainant Mahesh Kumar Sharma wherein he has stated that on 10.02.2001 at about 08:00 am he was informed by his wife Sheela that when she had gone to switch off the light of the room at second floor she found that the chain of the lock of the room was broken. The room belongs to his son and daughter in law. After checking the room they found that three suitcases and two gas cylinder (one big and one small) were missing. As per the complaint some unknown person had broken the lock and committed theft of the property. On the basis of the statement the present FIR was registered.
2. FIR was registered under section 457/380 IPC and has been investigated by the officials of police station New FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.2 of 26 Usmanpur and IO/SI Ram Naresh filed the charge sheet against the accused persons upon which cognizance was taken on 11.04.2001 by the learned Predecessor of this Court.
3. Accused persons appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. were supplied to them.
4. Charge was framed vide order dated 01.11.2001 for the offences punishable under section 380/411/457/34 IPC against accused persons by the learned Predecessor of this Court, to which they pleaded not guilty and claimed trial. Additionally, charge under section 174A IPC was framed against accused Kalu @ Trilok Singh vide order dated 15.04.2024 as he was declared a PO in the present matter vide order dated 27.02.2018.
5. Thereafter, matter was listed for prosecution evidence. The prosecution has examined 07 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Mahesh Kumar Sharma is the complainant in the present matter. He has deposed that on 02.02.2001 at about 08:00 am in the morning his wife Sushila Devi went on the second floor of the building to switch off the light and his wife noticed that the chain of the door lock was broken. She came and informed the same and he rushed to the room where the chain of door was broken. He noticed that three suitcases and two gas cylinders (one small and one large) were found missing. He immediately call the police and lodged a complaint against accused Mehtab on the basis of suspicion. Mehtab was apprehended by the police FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.3 of 26 and he disclosed the name of accused Manoj who had committed the theft alongwith him. From the possession of the accused persons one gas cylinder and suitcase was recovered. He had given to the IO a broken chain and a diary in which name of Manoj and Giri were written and black colour purse made of cloth which was seized by the IO. Two suitcases were recovered from the possession of accused Manoj and gas cylinder was recovered from accused Mehtab. The disclosure statement of accused Manoj and Mehtab were recorded. They were arrested.
He had provided the IO the documents of his gas connection. IO recorded his statement. He got released his articles on superdari. The witness correctly identified the case property produced by MHC(M). In his cross examination by Ld. LAC he has deposed that the incident happened on the first floor of the house and at that time his son and daughter in law used to reside in the room. On the day of incident they had gone to the grand parents. On the first floor two rooms and one kitchen is constructed. The door of the first floor is visible from the house of the neighbourers. He conceded that he had not seen anybody breaking the lock and committing the theft. He also conceded that he had not seen the recovery from the possession of accused. He has also conceded that the suitcase was not shown to him after the recovery of the same from the possession of accused Kalu @ Trilok. He also conceded that TIP of the same was not conducted. He also conceded that he had seen the accused Kalu in the Court for the first time. He also conceded that IO had not informed him about the recovery of suitcase from the possession of accused and that he was seeing the suitcase for the first time in the Court after being stolen. He also conceded that the woolen clothes inside the FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.4 of 26 recovered suitcase are easily available in the market. He denied the suggestion that he has wrongly identified the suitcase being tutored by the IO.
(ii) PW2 Sushila Sharma is the wife of the complainant. She has deposed that on 10.02.2001 at about 08:00 am in the evening she went to the first floor of the house to switch off the bulbs in the room and noticed that the chain of the door lock was broken and the room was open. When she went inside the room she noticed that three suitcases and two cylinders (one large and one small) were missing. She immediately went down the stairs and informed her husband about the theft and he came alongwith her to the first floor. They made a call to the police and police came at the spot and inspected their premises. The police recorded statement of her husband and FIR was registered. She had mentioned the police that they were having suspicion on person Mehtab who was residing in the back side of their house. IO recorded her statement to this effect. Witness identified the suitcase produced by MHC(M) before the Court. In her cross examination by Ld. LAC she has deposed that the incident happened on the first floor of the house and at that time her son and daughter in law used to reside in the room. On the day of incident they had gone to the grand parents. On the first floor two rooms and one kitchen is constructed. The door of the first floor is visible from the house of the neighbourers. She conceded that she had not seen anybody breaking the lock and committing the theft. She also conceded that she had not seen the recovery from the possession of accused. She has also conceded that the suitcase was not shown to her after the recovery of the same from the possession of accused Kalu @ Trilok. She also conceded that FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.5 of 26 TIP of the same was not conducted. She also conceded that she had seen the accused Kalu in the Court for the first time. She also conceded that IO had not informed her about the recovery of suitcase from the possession of accused and that she was seeing the suitcase for the first time in the Court after being stolen. She also conceded that the woolen clothes inside the recovered suitcase are easily available in the market. She denied the suggestion that she has wrongly identified the suitcase being tutored by the IO.
(iii) PW3 SI Ram Naresh on 10.02.2001 after receiving DD no.8B he alongwith Ct. Bijender went to the spot i.e. D-455, Gali no.4, Gamri Extension, Delhi and met complainant Mahesh Chand. He recorded his statement and on the basis of the same a tehrir was prepared and the same was handed over to Ct. Bijender for registration of FIR. He came back to the spot after registration of FIR and handed over the copy of FIR and tehrir to him. He prepared the site plan. Ld. APP put questions in the nature of cross examination as the said PW could not depose anything else being 74 years of age. He conceded that he had seized the lock, broken chain and black colour purse. He also conceded that he alongwith Ct. Bijender and complainant went in search of accused to Gamri Extension to the house of Mehtab who tried to run away on seeing the police party but was apprehended. He was arrested and disclosure statement was recorded. He had disclosed the name of Manoj. He also conceded that accused Mehtab produced one gas cylinder and other items which was seized by him. Accused Manoj produced two suitcases which was also seized by him. Pointing out memo was prepared on the instance of accused Manoj and Mehtab.
FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.6 of 26 Disclosure statement of accused Manoj was recorded. Both accused persons were arrested. The documents of gas cylinder were handed over to him by the complainant. Accused Kalu was arrested after taking permission of the Court as he had surrendered before the Court. Two days PC remand of accused Kalu was taken from the Court. He recorded disclosure statement of accused Kalu. At the pointing out of accused Kalu one suitcase and some clothes were recovered which were seized. Accused Kalu had absconded and supplementary chargesheet was prepared against him. In his cross examination by Ld. LAC for accused he has stated that they had gone to the house of complainant on motorcycle. Accused Kalu was arrested on 23.04.2001. He could not state what items were recovered from the possession of accused Kalu and on which date. He denied that suggestion that nothing was recovered from the possession of accused Kalu. He could not remember who was present at the time of recovery of the case property from the possession of accused Kalu. The case property was recovered from the house of accused Kalu but he could not specify the address. At the time of recovery he was accompanied by Ct. Har Prakash and accused Kalu. He could not specify the number of storeys of the house or any nearby spot. He denied the suggestion that recovery was planted on the accused.
(iv) PW4 HC Bijender on 10.02.2001 after receiving DD No.8B. He alongwith ASI Ram Naresh went to the spot i.e. D-455, Gali no.4, Gamri Extension, Delhi and met complainant Mahesh Chand. IO recorded his statement and on the basis of the same a tehrir was prepared and was handed over to him fo registration of FIR. He got the FIR registered and came back to the spot and FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.7 of 26 handed over the original tehrir and copy of FIR to the IO. IO seized the lock, broken chain and black colour purse. Thereafter, they alongwith complainant went in search of accused Mehtab to Gamri Extension where on seeing them accused Mehtab tried to run away from the spot but was apprehended. Accused Mehtab produced one cylinder and other items to the IO which was seized by the IO. Accused Manoj was arrested at the instance of accused Mehtab. Two suitcases were recovered from the possession of accused Manoj and they were seized. Disclosure statement of accused Manoj and Mehtab were recorded and both of them were arrested. Complainant handed over the documents of the gas cylinder to the IO. In his cross examination by Ld. LAC for the accused he has conceded that he had not done any proceedings with regard to accused Kalu. He conceded that nothing was recovered from the possession of accused Kalu in his presence.
(v) PW5 ASI Vishnu Singh on 10.02.2001 was the Duty Officer at PS New Usmanpur. At about 10:45 am, Ct. Bijender handed over one rukka to him sent by ASI Ram Naresh. He made endorsement on the rukka and on the basis of the same recorded the present FIR. After the registration of FIR he handed over the copy of FIR and original rukka to Ct. Bijender for handing it over to ASI Ram Naresh. The witness was not cross examined by accused despite being given an opportunity.
(vi) PW6 SI Har Prasad on 23.04.2001 he alongwith IO ASI Ram Naresh went to the Court of Sh. Raj Kapoor, Ld. MM, Delhi and accused Kalu was arrested by the IO. He made a disclosure that he alongwith accused Mehtab and Manoj had committed theft from Gamri Village. On 24.04.2001 accused took them to FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.8 of 26 Bhajanpura Gali no.20 and one suitcase and two cylinder (one big and one small) was recovered. He had also stated that he had sold the cylinder for ₹100/-. His statement was recorded by IO twice on 23.04.2001 and 24.04.2001. He could not identify accused Kalu in Court as the matter was more than 20 years old. In his cross examination by Ld. counsel for accused he has stated that he does not remember the time when the accused was arrested from the Court. In the afternoon they went the place where accused took them. No public persons were present at the recovery spot. They had not informed the neighbourers about the recovery from the accused. They stayed their for about 10-15 minutes. He denied the suggestion that accused had not taken them at any spot. He also denied the suggestion that the signatures of accused were forcibly taken on blank papers.
(vii) PW7 ASI Ram Mehar on 07.06.2022 DO, PS New Usmanpur recorded information about the arrest of accused Kalu @ Trilok by the police officials of PS Geeta Colony and the same was marked to him for arrest of accused Kalu @ Trilok in the present case. He came to the Court and met ASI Rajeshwar Rao, PS Geeta Colony who handed over the kalandara bearing DD no.12A dated 23.05.2002, PS Geeta Colony after which he arrested the accused and prepared search memo. He prepared supplementary chargesheet against the accused and submitted it before the Court. In his cross examination by Ld. counsel for accused he has stated that he does not have personal knowledge about the present case. He denied the suggestion that he had filed supplementary chargesheet against the accused under section 174A IPC.
FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.9 of 26
6. PE was closed on 24.08.2024 and on 31.08.2024, statement of accused under Section 313 Cr.P.C. read with S. 281 Cr.P.C. was recorded and accused persons did not wish to lead DE. Matter was fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. S. 380 IPC deals with Theft in dwelling house, etc and reads as:
"Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
10. Therefore, S. 380 is an aggravated form of an offence of theft as defined in S. 378 IPC and at the onset offence of theft has to be proved.
11. S. 378 IPC defines theft and reads as:
"378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2.--A moving effected by the same act which affects the severance may be a theft. Explanation 3.--A person is said to cause a thing to move by removing an obstacle FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.10 of 26 which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
12. In order to constitute the offence of theft, the following ingredients of the offence have to be fulfilled simultaneously:
(1) Dishonest intention to take property:
(2) The property must be movable:
(3) It should be taken out of possession of another person: (4) It should be taken without consent of that person: (5) There must be some removal of the properly in order to accomplish the taking of it.
13. In the present case, none of the prosecution witnesses have actually seen the accused Kalu @ Trilok committing the offence of theft. PW1 and PW2 in their cross examination have categorically conceded that they have not seen anybody breaking the lock and committing the theft. Moreover, they have also stated that they saw accused Kalu @ Trilok for the first time in Court. The remaining witnesses other then PW1 and PW2 are formal in nature and have not established the identity of Kalu @ Trilok at the time of committing the offence.
14. As discussed above for proving the offence of theft there has to be a taking away of the property from the possession of the complainant. PW1 and PW2 themselves have not seen the FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.11 of 26 accused Kalu @ Trilok taking away the property. Rather it was in the disclosure of accused Mehtab (PO) wherein he mentioned the name of other accused Manoj (abated) and Kalu. Therefore, testimony of PW1 and PW2 are of no use.
15. The prosecution has also charged the accused persons with offence punishable under S. 457 IPC. It reads as follows:
"457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--Whoever commits lurking house- trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years."
16. The genus can be found in S. 441 IPC which defines the term house trespass. The succeeding sections are the variations of the criminal trespass defined in s. 441 and are punished as per the requirements of the sections.
17. Section 441 IPC defines criminal trespass and is as under:
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'."
FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.12 of 26
18. In Rajinder v. State of Haryana [(1995) 5 SCC 187 : 1995 SCC (Cri) 852], hon'ble Supreme Court Court observed as under: (SCC pp. 198-99, paras 21-22) "21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case."
19. Dealing with the issue of trespass, Hon'ble Supreme Court in Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath, (1991) 2 SCC 141 : 1991 SCC (Cri) 315 at page 147 has observed that:
"It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped. The authors of the Code had the following words to say:
"We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.13 of 26 which it is committed. It may also be aggravated by the end for which it is committed."
20. In Matiullah Sheikh v. State of W.B., (1964) 6 SCR 978 :
AIR 1965 SC 132 : (1965) 1 Cri LJ 126, it has been observed that:
"5. It is worth noticing also that house trespass, apart from anything else is made punishable under Section 448 of the Indian Penal Code the punishment prescribed being imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or both.
6. Higher punishment is prescribed where house trespass is committed "in order to" the commission of other offences. An examination of Sections 449, 450, 451, 454 and 457 show that the penalty prescribed has been graded according to the nature of the offence "in order to" the commission of which house trespass is committed. It is quite clear that these punishments for house trespass are prescribed quite independent of the question whether the offence "in order to" the commission of which the house trespass was committed has been actually committed or not. In our opinion, there can be no doubt that the words "in order to"
have been used to mean "with the purpose of". If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under Section 449 of the Indian Penal Code. If the purpose in committing the house trespass is the commission of an offence punishable with imprisonment for life the house trespass is punishable under Section 450 of the Indian Penal Code. Similarly, Sections 451, 454 and 457 will apply the house trespass or lurking house trespass, or lurking house trespass by night or house breaking by night are committed for the purpose of the offence indicated in those sections. Whether or not the purpose was actually accomplished is quite irrelevant in these cases.
21. From the above discussion, it can be stated that every trespass does not amount to criminal trespass within the meaning of Section 441 IPC. In order to satisfy the conditions of Section FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.14 of 26 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
22. In Rash Behari Chatterjee v. Fagu Shaw, (1969) 2 SCC 216, it was observed that:
"The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
23. In the present case, the accused persons have been charged for having committed house breaking after sunset and before sun rise by entering into the house of the complainant Mahesh Sharma. As discussed above, the complainant/PW1 and his wife/PW2 in their cross examination have categorically conceded that they had not seen anyone breaking the lock and committing the theft. Also, in their cross examiantion they have stated that they had seen accused Kalu @ Trilok in the Court for the first FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.15 of 26 time. The other prosecution witnesses are formal in nature. Therefore, it cannot be said that accused Kalu @ Trilok had committed criminal trespass in the house of the complainant Mahesh Kumar Sharma.
24. The prosecution has charged the accused Kalu @ Trilok with offence punishable under S. 411 IPC for having recovered one suitcase from his possession. Section 411 IPC reads as follow:
"411. Dishonestly receiving stolen property.-- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
25. The essential ingredients which the Prosecution is required to prove to establish the guilt of accused beyond reasonable doubt for offence punishable under Section 411 IPC are as under :
(i) That the property in question was stolen property;
(ii) That the stolen property was in the possession of the accused;
(iii) That it was dishonestly received or retained; and
(iv) The accused knew or had reason to believe that the, property was stolen property.
26. In the present case, the offence has been committed on 10.02.2001. As per the deposition of PW3/IO/SI Ram Naresh accused Kalu had surrendered before the Court and two days PC FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.16 of 26 remand was taken. He recorded the disclosure statement of accused Ex. PW3/C. He recorded the pointing out memo Ex. PW3/D and got the suitcase make Casio recovered at his instance Ex. PW3/E. Perusal of the seizure memo Ex. PW3/E shows Ct. Har Prasad as the only attesting witness. Ct. Har Prasad has been examined as PW6, however, he has failed to identify the accused stating that the matter is more than 20 years old and due to his old age he cannot identified the accused. The case property i.e. the recovered Casio suitcase was brought to the Court by MHC(M) and was identified by the complainant/PW1 and his wife/PW2 on the basis of engravings 'sharma' in Court and was marked Ex. P2 (colly). Since, the only recovery witness has failed to identify the accused in Court it cannot be said that the recovery has been proved from the accused.
27. In the present case during the trial accused Kalu @ Trilok had stopped appearing. Process under section 82 Cr. PC against him vide order dated 08.06.2017 and after recording the statement of process server he was declared a proclaimed offendeer vide order dated 27.02.2018. Supplementary chargesheet was filed with respect to offence under section 174A IPC on 24.06.2022. The accused was formally charged for having committed offence under section 174A IPC on 15.04.2024. He did not plead guilty and preferred trial. The prosecution has examined ASI Ram Mehar as the prosecution witness in this regard.
28. 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 FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.17 of 26 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."
29. 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.
30. 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.
31. 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 FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.18 of 26 correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code with effect from 23.06.2006.
32. 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 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.
33. 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 FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.19 of 26 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. "
34. 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 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.
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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 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."
35. 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 FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.21 of 26 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."
36. 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.
37. 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 FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.22 of 26 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."
38. In the present case, proclamation under S. 82 Cr. P.C. was issued against accused Kalu @ Trilok on 08.06.2017 and he was directed to appear before this Court on 09.08.2017. The order passed by Ld. Predecessor is already on record. As per the order dated 27.02.2018, statement of process server Ct. Javed was recorded and after due consideration accused Kalu @ Trilok was declared a proclaimed offender. ASI Ram Mehar has deposed that he received intimation about the arrest of Kalu @ Trilok from the police officials of PS Geeta Colony on 07.06.2022 and he came to the Court and met ASI Rajeshwar Rao who handed over the entire kalandara bearing DD No.12A dated 23.05.2022, PS Geeta Colony. He formally arrested the accused, prepared the supplementary chargesheet and filed it before the Court.
39. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.23 of 26 "Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
40. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
41. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.24 of 26 "It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
42. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
43. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of offences under section 457/380/411/34 IPC. As discussed above, the prosecution has failed to proved the possession of the complainant or that the accused were the person present in his house on the day of incident who had committed theft. Moreover, the charge under section 174A IPC stands duly proved by the prosecution in the presence of the supplementary chargesheet and the order FIR No.34/01 State vs. Manoj Kumar & Ors. PS New Usmanpur Page No.25 of 26 declaring the accused Kalu @ Trilok a proclaimed offender.
44. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt that accused Kalu @ Trilok has committed offence under S. 380/457/411 IPC, therefore, accused Kalu @ Trilok is found not guilty for offence punishable under section 380/457/411 IPC in the present case and resultantly, he stands acquitted for offences under section 380/457/411 IPC in the present case. However, he stands convicted for having committing offence punishable under section 174A IPC.
45. Accused is directed furnish personal bond in the sum of ₹10,000/- with one surety of like amount u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed.
Digitally
signed by
VIPUL
VIPUL SANDWAR
SANDWAR Date:
2024.09.13
16:32:07
+0530
Announced in the open (VIPUL SANDWAR)
Court on 13th September, 2024 JMFC-02/NE/KKD COURTS
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