Delhi District Court
State vs Sushil Kumar on 23 December, 2023
IN THE COURT OF MS. APARNA SWAMI, ASJ-07,
PATIALA HOUSE COURT, NEW DELHI DISTRICT, NEW
DELHI
Unique Case No. DLND01-000518-2019
STATE Vs. SUSHIL KUMAR
Sessions Case No. : 34/2019
FIR No. : 280/2007
Under Section : 174A IPC
Police Station : R. K. Puram
a) Name of the Complainant : HC Kishan Kumar
No. 468/SD
Police Station
Mehrauli.
b) Name, Parentage & address of
accused : Sushil Kumar
S/o Late Desh Raj
R/o Quarter No.
231, Sector-4,
R. K. Puram,
New Delhi.
Presently residing
at:
D-18, Street No.6,
Road No. 5, Shyam
Vihar, Phase-I,
Delhi.
c) Offences complained of : 174A Indian Penal
Code
f) The plea of the accused persons : Pleaded not guilty
and claimed trial.
Digitally signed
by Aparna
Aparna Swami
FIR No.280/2007 Swami Date:
2023.12.23
16:29:08 +0530
PS R. K. Puram
U/s 174A IPC State Vs. Sushil Kumar Page 1 of 12
Date of institution of case 23.03.2017
Date of committal to Sessions Court 09.01.2019
Date on which judgment is reserved 01.12.2023
Date of Judgment 23.12.2023
Decision of Judgment Acquitted
BRIEF FACTS OF THE CASE
1. In the present case, it is alleged against accused Sushil Kumar S/o Late Desh Raj, that as required by the directions issued by the Court of Sh. S.P.S. Laler, the then Ld. Metropolitan Magistrate, accused Sushil Kumar failed to appear before the court on 21.03.2009. Thereafter, accused Sushil Kumar was declared as 'Proclaimed Offender' and thus, alleged to have committed the offence punishable under Section 174 A of Indian Penal Code (hereinafter to be referred as 'IPC').
2. Succinctly, the background of registration of FIR bearing no. 280/2007 in Police Station R. K. Puram is as under:
On the complaint of Mr. Satya Prakash Sharma dated 19.04.2007, an FIR bearing No. 280/07 under Section 366 IPC was registered at PS R. K. Puram. In the complaint, it was mentioned by the complainant that his daughter Shashi Sharma aged about 21 years was missing since morning of 18.04.2007.
As his daughter did not come back home, the complainant tried to find out from every possible means, but no clue was found. Initially, the complainant mentioned that he has no doubt on anyone, but again on 04.05.2007 the complainant wrote a letter to the SHO PS-R. K. Puram, disclosing that he has come to know Aparna Digitally signed by Aparna Swami FIR No.280/2007 PS R. K. Puram Swami Date: 2023.12.23 16:29:16 +0530 U/s 174A IPC State Vs. Sushil Kumar Page 2 of 12 that his daughter has been taken away by use of inducement by one Sushil Kumar S/o Late Desh Raj R/o R/Z, F-767/22, Raj Nagar, Palam Colony, Delhi. On this, the investigation commenced and during the investigation, it was found that on 26.03.2007, Shashi Sharma (daughter of the complainant) got married to accused Sushil Kumar in Arya Samaj Mandir, Jamuna Bazar, Delhi. The certificate of Arya Samaj Mandir along with photographs and the affidavits were taken on record by the Investigating Officer. Thereafter, the accused Sushil Kumar with the missing woman namely Shashi Sharma went out of Delhi. As accused Sushil Kumar was untraceable, therefore, NBWs were issued by the court and later on the proceedings under Section 82 CrPC were carried out. Vide order dated 21.03.2009, accused Sushil Kumar was declared as 'Proclaimed Offender' in the present case.
The charge-sheet was filed in the court under Section 366 IPC. Vide order dated 23.05.2009, Ld. Magistrate took cognizance of the offence punishable u/s 366 IPC. Later, on 22.03.2017, on the apprehension of the accused Sushil Kumar, supplementary charge-sheet was filed against the accused for the offence punishable u/s 174A IPC.
3. It is relevant to mention here that by order dated 28.03.2023, accused Sushil Kumar was discharged for the offence punishable under Section 366 IPC.
4. On committal of the supplementary charge-sheet to the court of Sessions, charge under Section 174A IPC was framed Digitally signed Aparna by Aparna Swami FIR No.280/2007 PS R. K. Puram Swami Date:
2023.12.23 16:29:25 +0530 U/s 174A IPC State Vs. Sushil Kumar Page 3 of 12 against the accused Sushil Kumar on 28.03.2023. After framing of the charge, the trial commenced in the present matter.
5. The prosecution to prove its case, opted to examine 03 witnesses out of 04 prosecution witnesses. Briefly, the testimony of these witnesses are as under:
5.1. PW-1 Retired Assistant Sub-Inspector Ashok Kumar:- This witness deposed that on 30.01.2009, he was posted as Head Constable at Police Station R. K. Puram. The process under Section 82 CrPC, which was issued by the Court of the then Ld. MM against the accused was marked to him for execution. For the purpose of execution of this process, PW-1 went to the address of the accused which was RZF-760/61, Gali No. 2, Raj Nagar, Part-II, Palam Colony, New Delhi. On the address so mentioned above, this witness met with sister-in-law (bhabhi) of the accused namely Rinku Devi. This witness was informed that accused had not come to this house from last two years. PW-1 then pasted the copy of process under Section 82 CrPC (which during the testimony of this witness was Ex.PW1/B) in front of that house and on the notice board in the vicinity of the Patiala House Court Complex.
PW-1 then prepared his report, which during his testimony was Ex.PW1/A. This witness handed over his report to the Investigating Officer of this case.
This witness was cross-examined by the Ld. Counsel for the accused.
5.2. PW-2 ASI Sudhir Singh:- This witness executed process under Section 83 CrPC on to the accused. This witness Aparna Digitally signed by Aparna Swami FIR No.280/2007 PS R. K. Puram Swami Date: 2023.12.23 16:29:31 +0530 U/s 174A IPC State Vs. Sushil Kumar Page 4 of 12 deposed that on 14.03.2009, he was posted as Head Constable at Police Station R. K. Puram. On the aforesaid date, the process under Section 83 CrPC, which was issued against accused Sushil Kumar was marked to him for execution. For this purpose, PW-2 reached at the address of the accused i.e. RZF-760/61, Gali No. 2, Raj Nagar, Part-II, Palam Colony, New Delhi. On the address of the accused, PW-2 found brother of the accused, who informed PW-2 that accused Sushil Kumar had not come on this address from past two years. PW-2 was also informed that the registered owner of the house is the mother of the accused Sushil Kumar. On the basis of this information, PW-2 prepared his report, which was Ex.PW2/B and handed over the same to the Investigating Officer of this case for necessary action.
This witness was cross-examined by the Ld. Counsel for the accused.
5.3. PW-3 Sub-Inspector Amar Singh:- This witness deposed that on 03.12.2016, the investigation with respect to the offence under Section 174A IPC was marked to him. On 02.12.2016, vide DD entry no. 74B, an information with respect to accused Sushil Kumar, who was declared 'Proclaimed Offender' in FIR bearing no. 280/2007 registered in Police Station R. K. Puram, was received at Police Station Mehrauli. On the basis of this information, accused Sushil Kumar was arrested on 02.12.2016 and he was produced before the Ld. Magistrate by way of Kalandara under Section 41.1 (C) CrPC. During the course of investigation of the present offence, statement of victim namely Shashi @ Khushi was recorded under Section 164 of CrPC. Later on, supplementary charge-sheet against accused Digitally signed by Aparna Aparna Swami FIR No.280/2007 PS R. K. Puram Swami Date:
2023.12.23 16:29:39 +0530 U/s 174A IPC State Vs. Sushil Kumar Page 5 of 12 Sushil Kumar for the commission of offence punishable under Section 174A IPC was filed in the court.
This witness correctly identified the accused in the court, as being arrested in the present case. This witness was cross- examined by the Ld. Counsel for the accused.
6. After completion of the prosecution witnesses, prosecution evidence was closed. The statement of accused under section 313 Cr.PC was recorded, wherein accused refused to lead evidence in his defence.
ARGUMENTS
7. Final arguments from both the sides were heard.
8. Ld. Additional Public Prosecutor for State had submitted that accused Sushil Kumar has been declared as 'Proclaimed Offender', as he failed to appear before the court despite issuance of NBWs, execution of processes under Section 82 and 83 of CrPC. It was further submitted by the State that the processes inclusive of NBWs, 82 CrPC and 83 CrPC, were issued and executed on the last known address of the accused and thus, the execution is properly done. Ld. Additional Public Prosecutor for State also submitted that offence under Section 174A of IPC is an independent of the main case. Therefore, merely because accused has been discharged in FIR No. 280/2007 registered for commission of offence under Section 366 IPC, does not warrant his acquittal in the present case. It is also argued by the State that offence under Section 174A IPC do not require Mens Rea and Digitally signed by Aparna Aparna Swami FIR No.280/2007 Swami Date:
2023.12.23 PS R. K. Puram 16:29:45 +0530 U/s 174A IPC State Vs. Sushil Kumar Page 6 of 12 should be dealt with strictly. Hence, accused is liable to be punished for the commission of offence under Section 174A of IPC.
9. It was argued by the Ld. Counsel for accused that in the present case, as per the mandate of Section 195 (1)(a)(i) of CrPC, the complaint in writing is not provided by public servant or some public servant to whom he is administratively subordinate therefore, the proceedings declaring accused person as 'Proclaimed Offender' are bad in law. It was further submitted by Ld. Counsel for accused that the accused was not residing on the address on which the execution of processes under Section 82 and 83 CrPC was done and thus, was unaware about any proceeding against him. Hence, the execution of processes as noted above qua accused is not valid. Therefore, under the facts and circumstances of this case no case is made out against the accused Sushil Kumar.
ANALYSIS OF EVIDENCE AND OBSERVATION
10. In the present case, accused was charged for commission of offence punishable under section 174A of IPC. Before proceeding further, it is relevant here to reproduce section 174A of IPC.
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 Digitally signed Aparna by Aparna Swami FIR No.280/2007 PS R. K. Puram Swami 16:29:53 +0530 Date: 2023.12.23 U/s 174A IPC State Vs. Sushil Kumar Page 7 of 12 a term which may extend to seven years and shall also be liable to fine.]
11. Now, taking note of the first argument of Ld. Defence Counsel, it is pertinent to mention that Section 174A of IPC was introduced in the Code with effect from 23rd June 2006. Section 195(1) CrPC provides that no court shall take cognizance of the offence punishable under Section 172 to 188 (both inclusive) of the IPC or the abetment or attempt to commit 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 CrPC has not been correspondingly amended so as to include Section 174A IPC, which was brought into the Penal Code with effect from 23 rd June 2006. The Legislature was conscious of this fact and that is why though all other offences under Chapter X of CrPC are non- cognizable, the offence under Section 174A IPC is made cognizable. Meaning thereby, that the Police officer on a complaint under Section 174A IPC is competent to register FIR and after investigation thereon, file a charge-sheet before the court of Ld. Magistrate, who can take cognizance thereon. Thus, this court finds no merit in this argument of Ld. Defence Counsel.
12. Coming now, to the second argument of Ld. Defence Counsel, which involves the issue pertaining to procedural framework governing the issuance of proclamation, their publication and the declaration of an individual as a 'Proclaimed Offender'. The relevant provisions in this regard are in Chapter Digitally signed Aparna by Aparna Swami FIR No.280/2007 Swami 16:30:00 +0530 Date: 2023.12.23 PS R. K. Puram U/s 174A IPC State Vs. Sushil Kumar Page 8 of 12 VI of the CrPC. This court finds that these provisions are present in the Code, so as to ensure and compel the presence of a concerned individual, thus facilitating the expeditious adjudication of criminal cases by avoiding undue delays.
13. Declaration of a person as a 'Proclaimed Offender' under Section 82 of CrPC carries with it consequential implication of attachment and sale of his property as under the provisions of Section 83, 84 and 85 of the Code. This declaration further creates a criminal liability of an individual under Section 174A of IPC, with a potential sentence up to 07 years of imprisonment coupled with fine.
14. In the present case, as has come out from the evidence of PW-1 ASI Ashok Kumar, who in his testimony has deposed that on directions of the court by way of issuance of process under Section 82 of CrPC, he executed the process on the address of accused, which was RZF-760/61, Gali No. 2, Raj Nagar, Part-II, Palam Colony, New Delhi. It has also come out in the testimony of this witness that he met with the sister-in-law of accused, who categorically informed him that accused is not residing on the given address and has even not come to this address from last two years.
In the cross-examination of this witness, it further came out that on inquiry from the neighbours, this witness was informed that accused Sushil Kumar does not reside on the given address. It has also come out in the cross-examination of this witness that he did not take photographs of the place on which he Digitally signed Aparna by Aparna Swami FIR No.280/2007 Swami Date:
2023.12.23 PS R. K. Puram 16:30:07 +0530 U/s 174A IPC State Vs. Sushil Kumar Page 9 of 12 pasted the copy of the process under Section 82 of CrPC.
15. With regard to the execution of process under Section 83 CrPC, testimony of PW-2 ASI Sudhir Singh is of paramount importance. This witness in his examination-in-chief specifically mentioned that when he went on the address of the accused for execution of process under Section 83 of CrPC, he did not find the accused, however brother of the accused informed him that accused has not come on the given address from last two years. Further, it is also pertinent to note here that the house at the address on record is registered in the name of mother of the accused.
This witness in his cross-examination affirmed whatever he deposed in his examination-in-chief.
16. PW-3 SI Amar Singh is the last and final witness of the prosecution in the present matter. This witness formally arrested the accused and produced before the Ld. Magistrate and filed charge-sheet under Section 174A IPC in the court.
In context of present case, the cross-examination of this witness is important to be referred to. PW-3 mentions in his cross-examination that during investigation, he was told by accused Sushil Kumar that he had no knowledge about the present FIR or of the issuance of NBWs or initiation of 'PO' proceedings against him. This witness was also informed by the accused that he got married with the victim and immediately shifted his base to Mumbai.
Digitally signed by AparnaAparna Swami Date: FIR No.280/2007 Swami 2023.12.23 16:30:14 PS R. K. Puram +0530 U/s 174A IPC State Vs. Sushil Kumar Page 10 of 12
17. A conjoint reading of the testimony of above-noted witnesses (PW-1, PW-2 and PW-3) shows consistency in their depositions. These witnesses have clearly deposed that the address on which the processes under Section 82 and 83 were executed, the accused was not found there. Further, the family members of the accused, who were present on the address on record, also informed the police official that from last two years, accused has not visited them/ or have come on the above noted address. This clearly shows that accused was unaware about the issuance of processes against him. As mentioned above, the intent of legislature by enacting Section 174A is to secure the presence of the accused. The very basis of fair trial is threatened, if an accused is declared as 'Proclaimed Offender' without proper service or by issuance of processes in a routine manner, as has happened in the present case. This court further observes that the Investigating Officer of the present case had to show that accused ordinarily resided at a specific address and that now accused is not available at the address due to his deliberate intent to avoid custody in the case in question. However, in the present case, the deliberate avoidance of execution of processes and willful non- appearance before the court has not been proved by the evidence on record. Moreover, it is observed by the court that despite knowing that accused Sushil Kumar has not visited the address on record from last couple of years, no efforts were made by the police officials to trace the accused and to put on record the current address of the accused. Thus, in the facts and circumstances of the case, by no logic ingredients of offence punishable under Section 174A IPC is made out. Hence, in the Digitally signed Aparna by Aparna Swami FIR No.280/2007 PS R. K. Puram Swami Date: 2023.12.23 16:30:22 +0530 U/s 174A IPC State Vs. Sushil Kumar Page 11 of 12 entirety of the matter, it is concluded that no offence is committed by accused Sushil Kumar. In view of the above observations, accused Sushil Kumar stands acquitted of charge for the commission of offence punishable under section 174A of Indian Penal Code.
Dictated & announced in the open court On 23.12.2023 Digitally signed Aparna by Aparna Swami Swami Date: 2023.12.23 16:28:52 +0530 (Aparna Swami) Additional Sessions Judge-07 Patiala House Court/New Delhi 23.12.2023 FIR No.280/2007 PS R. K. Puram U/s 174A IPC State Vs. Sushil Kumar Page 12 of 12