Delhi District Court
State vs Tasleem on 2 August, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
FIR NO. : 14/2007, U/s 323/342/365/387/379/506/34 IPC PS : SEELAMPUR A. CIS No. of the Case : 461031/2015 B. FIR No. : 14/2007 C. Date of Institution : 04.01.2008 D. Date of Commission of Offence : 08.01.2007 E. Name of the complainant : Majid Khan S/o Nafees Khan, R/o 1220, Rishi Kardam Marg, Chauhan Bangar, Delhi-53 F. Name of the Accused, his : (1) Tasleem S/o Tausif Parentage & Addresses Ahmed, (2) Fareed @ Waseem S/o Tausif both R/o 339/13, Jafrabad, Delhi, (3) Jamaal @ Ranjha S/o Iqbal Gazi, R/o K-288, New Seelampur, Delhi and (4) Naseer S/o Sadakat Hussain, R/o 1363/48, Jafrabad, Delhi FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.1 of 26 G. Representation on behalf of : Ms. Amandeep Kaur, State Ld. APP H. Offence complained of : U/s 323/342/365/387/379/ 506/34 IPC I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 08.07.2024
K. Date of Order : 02.08.2024
L. Final Order : Acquittal under section
365/342/323/387/389/5
06/34 IPC and
Conviction under
section 174A IPC
Brief Statement of Reasons for Decision of the Case
1. The present FIR was registered on the complaint of complainant Majid Khan wherein he has stated that 08.01.2007 at about 07:30 pm he had gone to buy some stuff to main bazar road, Jafrabad, Delhi, when he reached Naaz Bakery he met Waseem S/o Tauseef (already known to him). Waseem on the instructions of his brother Tasleem took him to his house. There Ranjha S/o Iqbal and Tasleem (brother of Waseem) were present. Tasleem told Waseem and Ranjha to take the complainant to K-Block. When the complainant refused they forcefully made him sit on the motorcycle of Ranjha, Waseem and Ranjha took him to the house of Ranjha at ground floor and locked him in a room. After some time Waseem, Ranjha, Naseer and Arif came there. Naseer and Arif were already known to him. The four people started beating the complainant with fists and leg and asked him to get ₹1 lakh from his house failing which he would FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.2 of 26 be kill or falsely implicated in criminal cases. Thereafter, they also made him naked and asked him to be in cock position (murga banaya). Accused Ranjha and Naseer took his pictures from their mobile phone and told him that if he informed anyone about the incident or the demand of money they would get the pictures published. The complainant freed himself and came to his house and informed his younger brother and his father also came to know. Thereafter, they filed the present complaint.
2. FIR was registered under section 323/342/365/387/389/506/34 IPC and was investigated by the officials of Police Station Seelampur and IO/SI Surender Ojha filed the charge sheet against the accused persons upon which cognizance was taken on 13.02.2008 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 13.04.2015 for the offences punishable under section 365/34 IPC against accused Tasleem, for offence under section 365/342/323/387/389/506/34 IPC against accused Fareed and under section 342/323/387/389/506/34 IPC against accused Abdul Naseer by the learned Predecessor of this Court, to which, the accused persons pleaded not guilty and claimed trial. Vide order dated 03.08.2013, accused Abdul Naseer and vide order dated 06.06.2014 accused Jamal @ Ranjha were declared an FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.3 of 26 absconder. Accused Abdul Naseer was taken into custody in the present matter on 19.12.2013 and was later released on bail. Accused Jamal @ Ranjha was taken into custody on 07.05.2018 and was later released on bail. Charge under section 174A IPC was framed against accused Abdul Naseer and under section 365/342/323/387/389/506/34/174A IPC against accused Jamal @ Ranjha on 05.04.2023 by this Court.
5. Thereafter, matter was listed for prosecution evidence. The Prosecution has examined 04 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Sh. Majid Khan has deposed that at the time of incident he was studying in Class XIth or XIIth class. On the day of incident he went to buy household articles from the market in the evening and when he reached near bakery shop, one person came there on a motorcycle and asked him to sit on his motorcycle and threatened to kill him if he refused to do so. Out of fear he sat on his motorcycle and after going to some distance one another person also sat on the motorcycle as a pillion rider. He was made to sit in between both the persons. Both of them were talking to each other and they took him to a room where he was confined.
In the meantime, 2-3 other persons came there and beat him with fists and leg blows. They made him naked and took his photographs through mobile phone. They also made him "murga". They told him to bring ₹50,000/- or ₹1 lakh and threatened that if he did not bring the same they would kill him. He assured them that he will look for money and he was released. After returning home he narrated the entire incident to his brother FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.4 of 26 Amzad who told the incident to their father and they made a police complaint. He gave the police complaint on his hand writing. The witness failed to identify the accused persons in Court. Ld. APP for State put questions in nature of cross examination to the witness after seeking permission of this Court as he was not disclosing material facts. He conceded that the incident took place on 08.01.2007 at about 07:30 pm from main bazar road Jafrabad, Delhi. He denied the suggestion that when he reached Naaz Bakery he met Waseem who was already known to him prior to the incident. The witness denied his statement under section 161 Cr. PC when he was confronted with the same. He conceded that Tasleem told Waseem and Ranga to take him to the house of Ranga at K-Block but he refused to go upon which he was made to sit on a motorcycle belonging to Ranga forcibly and was taken to the house of Ranga where he was locked inside the room at ground floor. He conceded that after some time Waseem, Ranjha, Naseer and Arif came inside the room where he was locked and started beating him with legs and fists and also told him to bring ₹1 lakh and threatened to kill him if he did not bring ₹1 lakh and implicate him in false cases. He further conceded that he was made a murga in naked condition and accused Ranga and Naseer took photographs with their mobiles. He denied the suggestion that the IO has made the site plan at his instance. The witness denied the signatures on the arrest memo and disclosure statement of accused Tasleem. In his cross examination by Ld. counsel for accused he has conceded that all the documents were prepared by the police in the PS in his presence. He also conceded that the police took his signatures on some 3-4 blank papers and 3-4 printed papers in the PS. He FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.5 of 26 further conceded that the contents of his complaint Ex. PW1/A was dictated by the police to him in the PS and it was not true facts.
(ii) PW2 Ct. Amar Pal on 10.01.2007 the DO handed him the original tehrir and copy of FIR to hand over the same to IO/SI Surender Ojha at main bazar Jafrabad. He went there and handed the same to the IO. He alongwith IO went to H. No.1220 at Chauhan Bangar and met the complainant Mazid who took him to Naaz Bakery. IO prepared site plan at his instance. Complainant made a sign towards the person standing there. IO interrogated that person who disclosed his name as Tasleem. IO recorded the disclosure statement of Tasleem, arrested him. He searched for other accused but none of them were found. On 15.01.2007 he alongwith IO went to Jafrabad. There at gali no.18 one person was present, IO interrogated him who disclosed his name as Fareed @ Waseem. IO recorded his disclosure statement, arrested him and conducted his personal search. In his cross examination he has stated that he left the PS with the copy of FIR at about 08:00 am and reached gali no.17 on his motor bike within ten minutes. He met SI Surender Ojha. The complainant had signed. He conceded that they went to search accused Ranjha at his house but he does not remember the same. He stated that complainant had signed the arrest memo and the disclosure statement of the accused. The aforesaid documents were prepared at the spot. He denied the suggestion that entire written work was not conducted at the spot. He was the arresting witness for accused Tasleem and Fareed @ Waseem. He had not seen the accursed Jamaal @ Ranjha in the present case as he had surrendered later on. He could not identify the accused Jamaal @ FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.6 of 26 Ranjha.
(iii) PW3 HC Kabir Ahmed on 15.01.2007 SI Surender Ojha made arrest of accused Naseer in gali no.48, Jafrabad. IO prepared arrest memo. Naseer handed over the mobile phone to the IO which was seized by the IO. In his cross examination by Ld. counsel for accused he has stated that he alongwith IO went to the spot from PS at about 12:00 noon on the scooter of SI Surender Ojha. He knew accused prior to the incident. No public witness was made regarding the arrest of accused Naseer. He conceded that place of arrest is a public place. IO recorded his statement after the arrest of accused. Nothing was recovered from accused Naseer as per his personal search memo. He did not remember whether accused Naseer disclosed name of any other co-accused of the present case. He had not seen Jamaal @ Ranjha as he had surrendered later on.
(iv) PW4 SI Surender Ojha is the IO in the present matter. On 10.01.2007 he received the complaint and registered the case. He arrested the accused Tasleem, Fareed @ Waseem, Abdul Naseer and Jamaal @ Ranjha and conducted their personal search. Further examination of the witness was deferred on 24.04.2019. The said witness expired on 11.07.2020 and his examination before this Court could not be done.
6. PE was closed on 22.09.2023 and on 30.10.2023, statement of accused under Section 313 Cr. PC was recorded. The accused persons did not wish to lead any DE and the matter was thereafter, fixed for final arguments.
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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. The prosecution has charged accused Fareed @ Waseem, Tasleem and Jamal @ Ranjha for offence punishable under section 365/34 IPC.
10. The offence punishable under section 365 IPC has been defined as follows:
365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--
Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
11. Every charge of section 365 IPC is an aggravated form of either the offence of kidnapping defined in section 361 IPC or abduction defined in section 362 IPC.
"361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.-- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.(Exception)-- This section does not extend to the act of any person FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.8 of 26 who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
362. Abduction.--
Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
12. In Anversinh v. State of Gujarat, (2021) 3 SCC 12 , Hon'ble Supreme Court has observed that:
"A perusal of Section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such "enticement" need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl.
However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home."
13. In Parkash v. State of Haryana, (2004) 1 SCC 339 , the apex court discussing the principle behind the enactment of S. 361 IPC has observed that:
"The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor ... out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.9 of 26 protection, maintenance and control; further, the guardian's charge and control appears to be compatible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section."
14. In Thakorlal D. Vadgama v. State of Gujarat (1973) 2 SCC 413 it was, inter alia, observed as follows :
"The expression used in Section 361 IPC is 'whoever takes or entices any minor'. The word 'takes' does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, 'to cause to go', 'to escort' or 'to get into possession'. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words 'takes' and 'entices', as used in Section 361 IPC are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.10 of 26 IPC."
15. In the present case, PW1 the complainant has deposed that at the time of incident he was studying in class 11 th or 12th class, however, he does not know the date of incident. When he went to buy household articles. One person came and asked him to sit on the motorcycle and threatened to kill him if he refused. He sat on the motorcycle and after some distance another person also sat as pillion rider. He was made to seat between them. They took him to a room where he was confined. 2-3 other persons came and gave them beatings. The witness has failed to identify the accused persons in Court. In his cross examination by Ld. counsel for accused persons he has denied his original complaint Ex. PW1/A given to the police. He has conceded that the same was dictated to him by the police and he gave the said complaint on the directions of the police. No documents establishing the age of the complainant has been brought on record by the prosecution. The prime witness of the prosecution i.e. complainant did not support the case of the prosecution and has turned completely hostile. In the circumstances it cannot be said that the prosecution has discharged its burden for proving the offence punishable under section 365 IPC against accused Fareed @ Waseem, Jamal @ Ranjha and Tasleem.
16. The offences punishable under section 323/342/387/389/506 IPC reads as follows:
"323- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. S 319 defines Hurt as--Whoever causes bodily FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.11 of 26 pain, disease or infirmity to any person is said to cause hurt.
342. Punishment for wrongful confinement.-- Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
387. Putting person in fear of death or of grievous hurt, in order to commit extortion.-- Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
389. Putting person in fear of accusation of offence, in order to commit extortion.-- Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of an accusation, against that person or any other, of having committed, or attempted to commit an offence punishable with death or with imprisonment for life, or with imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be punishable under section 377 of this Code, may be punished with imprisonment for life.
506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprison-ment of either description for a term which may extend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both"
FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.12 of 26
17. In the present case, complainant/PW1 has failed to identify the accused persons in Court. Ld. APP for State put questions in the nature of cross examination to the witness after seeking permission of the Court, however, nothing material could be brought out. He denied making his statement to the police Ex. PW1/A and stated that he wrote the complaint on the instructions of the police. In his cross examination by Ld. counsel for accused he conceded that the contents of his complaint Ex. PW1/A were dictated by the police in the PS and it was not true. He also stated in his cross examination that the police obtained his signatures on 3-4 blank papers at the PS. The non identification of the accused persons in Court by the primary prosecution witness could not be explained. The common law principle "falsus in uno falsus in omnibus" though not applicable in India still the bit and pieces of case of the prosecution brought out in cross examination of PW1 by Ld. APP for State is not sufficient to discharge the burden. Accordingly, the prosecution has failed to prove the charge under section 323/342/387/389/506/34 IPC against accused Fareed @ Waseem, Jamal @ Ranjha and Abdul Naseer.
18. Accused Jamal @ Ranjha and Abdul Naseer have also been charged with offence punishable under section 174A IPC.
19. 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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.13 of 26 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."
20. 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.
21. 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.
22. 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.
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23. 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.
24. 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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.15 of 26 cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner. "
25. 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.
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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.16 of 26 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."
26. 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."
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27. 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.
28. 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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.18 of 26 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."
29. 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."
30. 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.
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31. 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.
32. 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.
33. 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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.20 of 26 presumed that Section 174A would be deemed to be included in between Section 172 to Section 188 IPC.
34. 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. "
35. 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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.21 of 26 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 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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.22 of 26 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."
36. 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."
37. 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.
38. 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 FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.23 of 26 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."
39. In the present case, proclamation under section 82 Cr. P.C. was issued against accused Abdul Naseer on 22.01.2013 and accused Jamal Ranjha on 09.01.2014 and 25.04.2014 directing them to appear before this Court. They failed to appear within the stipulated period of 30 days. Ld. Predecessor of this Court recorded statement of process server Ct. Jai Prakash who had executed process under section 82 Cr. PC against accused Abdul FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.24 of 26 Naseer and declared accused Abdul Naseer a proclaimed offender vide order dated 03.08.2013. Similarly, statement of process server Ct. Banwari Lal who had executed process under section 82 Cr. PC against accused Jamal @ Ranjha was recorded and he was declared a proclaimed offender vide order dated 06.01.2014. Therefore, process under S. 82 Cr. P. C. was duly executed against accused Jamal @ Ranjha and Abdul Naseer as per the procedure laid not in the section itself including publication and public announcement, despite that they failed to appear.
40. Thus, in view of the above discussion, accused Jamal @ Ranjha and Abdul Naseer are found guilty for offence punishable under section 174A IPC in the present case and resultantly, they stand convicted in the present case. Let the convicts be heard separately on quantum of sentence.
41. Thus, in view of the above discussion, the prosecution has not been able to establish beyond reasonable doubt that accused Tasleem has committed offence punishable under section 365/34 IPC, accused Fareed @ Waseem has committed offence punishable under section 365/342/323/387/389/506/34 IPC, accused Jamal @ Ranjha has committed offence punishable under section 365/342/323/387/389/506/34 IPC and accused Abdul Naseer has committed offence punishable under section 342/323/387/389/506/34 IPC. Therefore, they are found not guilty in the present case for the above mentioned offences and resultantly, they stand acquitted in the present case for the above mentioned offences. Accused Abdul Naseer and Jamal @ Ranjha FIR No.14/07 State vs. Tasleem & Ors.. PS Seelampur Page No.25 of 26 have been convicted for offence punishable under section 174A IPC.
42. Accused persons each are directed furnish personal bond in the sum of Rs.10,000/- each 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 SANDWAR VIPUL Date: SANDWAR 2024.08.02 16:03:08 +0530 Announced in the open (VIPUL SANDWAR) Court on 02nd August, 2024 JMFC-02/NE/KKD COURTS
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