Delhi District Court
State vs . Surender Kumar Goyal & Anr. on 19 September, 2022
IN THE COURT OF MS. T. PRIYADARSHINI, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURT, NEW DELHI
CR CASE/ 4151/2017
STATE Vs. SURENDER KUMAR GOYAL & ANR.
State v. Surender Kumar Goyal & Anr.
FIR No. 663/2016
Police Station : Saket
Under Section : 174A IPC
Date of institution : 11.08.2017
Date of reserving : 16.09.2022
Date of pronouncement : 19.09.2022
JUDGMENT
a) Serial number of the case : 4151/2017
b) Date of commission of : 19.10.2016
offence
c) Name of the complainant : Ct. Sanjay
d) Name, parentage and : 1. Surender Kumar Goyal S/o Late Sh. Manohar Lal Goyal R/o address of the accused 291, Sector 8, Faridabad persons (Haryana)
2. Mahender Kumar Goyal S/o Late Sh. Manohar Lal Goyal R/o 692, Sector 8, Faridabad (Haryana)
e) Offence complained of : 174A IPC State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 1 of 11f) Plea of the accused persons : Accused persons pleaded not guilty.
g) Final order : Acquitted
h) Date of final order : 19.09.2022
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. In the present case, FIR was registered under Section 174A IPC pursuant to the orders dated 19.10.2016 passed by this court. Presence of the accused persons was required by the court in case FIR No. 526/16. My Learned Predecessor had issued a process under Section 82 of the Code of Criminal Procedure in the above said FIR case returnable for 19.10.2016 against the accused persons. With respect to accused Mahender, the said process was apparently executed on 13.09.2016 at House No. 291, Sector 8, Faridabad, Haryana and with respect to accused Surender Goyal, the said process was apparently executed on 13.09.2016 at House No. 692, Sector 8, Faridabad, Haryana. However, the accused persons failed to appear before this court and vide order of 19.10.2016, the present FIR was directed to be registered under Section 174A of the IPC.
2. During the pendency of the proceedings in FIR No. 526/16, the accused persons had moved an application for grant of anticipatory bail before the Hon'ble High Court of Delhi wherein vide order dated 20.10.2016 granted anticipatory bail to the parties on the condition State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 2 of 11that the accused persons shall pay Rs. 10 lakhs to the complainant. As the accused persons failed to make the above said payment, the accused persons were directed to join the investigation by the Hon'ble High Court of Delhi vide order dated 24.01.2017. Subsequently, the accused persons joined the investigation and charge sheet was filed in the instant FIR.
CHARGE
3. Vide order dated 12.01.2018, charge was framed for the offence punishable under Section 174A IPC against both the accused persons and they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During recording of evidence, the accused persons admitted the orders dated 20.10.2016 and 24.01.2017 of the Hon'ble High Court of Delhi. The accused persons, however, stated that the process under Section 82 of the CrPC was issued by concealing the fact of the anticipatory bail proceedings to this court. The instant FIR (Ex. PW2/A) and the order of this Court declaring the accused persons as proclaimed absconders (Ex. PW2/B) and the roznamcha (Ex. PW2/C) were admitted by the accused persons as they did not cross-examine HC Pooran Mal (PW2) despite grant of opportunity. Similarly, the accused persons admitted the order dated 02.09.2016 of this court in FIR No. 526/16 wherein process was issued under Section 82 CrPC against the accused persons, the statement recorded of the process- server PW1 and the order dated 19.10.2016 of this court in FIR No. 526/16 wherein the accused persons were declared proclaimed State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 3 of 11absconders as these were exhibited as PW5/A (colly) and the accused persons did not cross-examine Harish Kumar, Ahlmad of this court (PW5) despite grant of opportunity.
5. Constable Sunil Hadda, the process server, was examined as PW1. PW1 deposed that he went to the residence of both the accused persons to execute the Section 82 process. In accused Mahender's residence, he met a lady who told him that Mahender was out of station for work and in accused Surender's residence, he met his wife who told him that Surender was out of station. He further submitted that he pasted the notice on the gate of the residence of both the accused persons and also informed local residents about the notice under Section 82 of CrPC. He further submitted that he handed over the documents to In-charge V-B and pasted the notices on the board of the court. The report of the process server was exhibited as Ex. PW1/A and PW1/B. In his cross-examination, PW1 admitted that though he had clicked photographs after pasting the process on the gate of the respective residence of the accused persons and handed over said photographs to In-charge V-B, the photographs were not available in the judicial file. He also deposed that he did not paste the notice outside the Hon'ble Court as it was pasted by In-charge V-B.
6. PW2, SI Rakesh Kumar, deposed that on 20.10.2016, the anticipatory bail application matter was pending before the Hon'ble High Court of Delhi and subsequent to the order dated 24.01.2017 of the Hon'ble High Court of Delhi directing the accused persons to join the investigation, he served a notice to the accused persons under State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 4 of 11Section 41A of the Code which were exhibited as PW4/A and PW4/B and bound down the accused persons vide pabandinama which were exhibited as Ex. PW4/C and Ex. PW4/D. In his cross-examination, PW2 deposed that NBWs were issued against accused persons on 19.08.2016 and he did not mention in his application seeking issuance of process under Section 82 of the Code that anticipatory bail proceedings were pending against the accused persons as there was no protection order against the accused persons by the Hon'ble High Court of Delhi.
7. As PW1 deposed that the notice was given to In-Charge V-B for pasting the notice outside the court, In-Charge V-B at the relevant time, ASI Ramesh, was summoned as court witness. ASI Ramesh deposed that as a matter of routine practise, the process server pasted the copy of the proclamation outside the court, however, in some exceptional cases, on the request of the process server, the proclamation is also pasted outside the court by In-Charge V-B. He also stated that he did not remember whether in the present case, the copy of the proclamation was pasted by him on the notice of this court, due to lapse of time. In his cross-examination, he also deposed that PW1 did not hand over any photographs of the proclamation notice being pasted on the residence of the accused persons to him.
STATEMENT UNDER SECTION 313 OF THE CODE AND DEFENCE EVIDENCE
8. Statement under Section 313 CrPC was recorded on 08.01.2019 wherein the accused persons stated that they did not have knowledge State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 5 of 11of the proclamation and they wished to lead defence evidence. Accused Mahender deposed as DW1 wherein he stated that the IO intentionally did not inform this court about the pendency of the anticipatory bail proceedings before the Hon'ble High Court of Delhi and stated that he neither received the summons nor the warrants from the court. In his cross-examination, he admitted that he was aware that FIR No. 526/16 was pending against him and that he did not visit the police station prior to the anticipatory bail proceedings. He also denied that he voluntarily and intentionally avoided appearance before the courts. On similar lines, accused Surender deposed as DW2 wherein he stated that he neither received the summons or the warrants from the court. No other witness were examined on behalf of the accused persons and matter was listed for final arguments.
9. I have heard the Ld. APP for the State and the Ld. Counsel for the accused persons and perused the record carefully in light of the arguments advanced.
ISSUES TO BE DECIDED
10. There are two questions to be answered in the instant case -
a) Firstly, whether the proclamation under Section 82 of the Code was duly executed?
b) Secondly, whether the accused failed to appear before the court on the date and time fixed without any just or lawful excuse or defence?
ANALYSIS AND FINDINGS
11. The answer to the second question is fairly straight forward. It State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 6 of 11is an admitted position that the accused persons failed to appear before this court on the date and time fixed and mentioned in the notice of proclamation and therefore, the second question needs no further deliberation.
12. On the first question with respect to legal propriety of the execution of proclamation under Section 82 of the Code, the law relating to declaration of accused persons as proclaimed absconders / offender under Section 82 of the Code is well settled. Once the court is satisfied that any person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed, then such court can issue a proclamation against such a person requiring him to appear at a specific place and a specified time not less than thirty days from the date of publishing such proclamation.
13. With respect to the manner in which the process ought to be executed, it is pertinent to refer to the judgment of the Hon'ble High Court of Delhi in Sunil Tyagi vs. NCT of Delhi, 2021 SCC OnLine Del 3597 wherein comprehensive guidelines with respect to publication of proclamation under Section 82 of the Code have been laid down. The relevant extract of this judgment is reproduced below:
"450. Pre-requisites to the publication of a proclamation under Section 82(2)(ii) CrPC - Prior to publication under Section 82(2)(ii) CrPC the Police Officer may be mandatorily required to file an Affidavit disclosing: A picture showing that proclamation has been affixed in a conspicuous place of the house where the person resides. The picture must be taken in a manner that makes it clear to the Court that the proclamation has in fact, been affixed at the said house; The Court must pass State Vs. Surender Kumar Goyal & Anr.FIR No. 663/2016, PS: Saket Page 7 of 11
an order dealing with the contents of the Affidavit and statement of the process server along with its reasons for directing publication under Section 82(2)(ii).
451. Publication by all three modes essential - Publication by all three modes namely (i) public reading in some conspicuous place of the town/village in such person ordinarily resides; (ii) affixation at some conspicuous part of the house or homestead and (iii) affixation at some conspicuous part of the court house are mandatory under Section 82(2) CrPC. The failure to comply with all the three modes of publication is to be considered invalid publication, according to law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.
452. Section 82 CrPC to be read as a whole - The three clauses
(a), (b) and (c) of Section 82(2)(i) CrPC are conjunctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of sub-Section (2) is optional; it is not an alternative to clause (i). The latter clause is mandatory.
453. Photograph of the affixation of proclamation - Prior to the publication under Section 82(2)(i) CrPC, the police shall file an affidavit along with the photographs of the affixation of proclamation on the conspicuous part of the resident of the accused. The police officer shall fill and submit performa in the format of Annexure C before the court at the stage of seeking proclamation. Upon publication of the proclamation under Sections 82/83 CrPC, copy of that newspaper be sent by the newspaper agency by post to the address of the accused as being done in Civil matters under Order 5 Rule 10 of CPC......
...... 459. Execution of Section 82/83 CrPC processes to be done by an officer not below the rank of S.I., since it is now a cognizable offence, under 174A IPC - Since abscondance and declaration as a Proclaimed Person/Offender has now become a cognizable and non-bailable offence, it is imperative that the execution of Sections 82 and 83 CrPC is done by an officer not below the rank of Sub-Inspector.
460. Mandatory photography and video recording of Section 82/83 CrPC proceedings and attachment of the video file with the prosecution material - Another tool which can add credence to the proclamation/service proceedings is Photography as well State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 8 of 11as Videography of the proclamation/service proceeding. This would rule out instances where it is found that execution police official has prepared the publication report without actually visiting the house of the accused. A series of photos and a video of the house of the accused during publication of the proclamation, will rule out the instances where accusations are made that no visit was paid by the execution officer at the address of the accused."
14. It is crystal clear from the above judgment of the Hon'ble High Court of Delhi that various procedural safeguards have been laid down for effective and proper execution of the processes under Section 82 of the Code. On a careful reading of the file and the documents appended to the charge sheet, the following emerges:
a) Firstly, the process was executed by PW1, Constable Sunil Hada. The High Court in the above judgment has laid down that it is imperative that the process is executed by an officer not below the rank of Sub-Inspector as the consequent offence under Section 174A is a cognizable and a non-bailable offence, under 174A of the IPC.
Arguendo, even if it is stated that the guidelines of the Hon'ble High Court of Delhi were laid down in 2021 and the process was executed in 2016 and hence the requirement with respect to execution by an officer not below the rank of sub-inspector was not applicable in the instant case, the entire process lacks legal propriety on the grounds discussed below.
b) Secondly, no photographs / video recording of Section State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 9 of 1182/83 proceedings are available in the prosecution material in order to add credence to the process executed by the process server. No such photographs are available on record. Further, in his cross-examination, PW1 stated that he had handed over photographs to the In-Charge V- B. However, the In-charge V-B was examined as court witness and he denied that any such photographs were handed over to him.
c) Thirdly, on a plain reading of Section 82(2)(i) of the Code, it is abundantly clear that sub-clauses (a), (b) and
(c) are conjunctive and valid publication depends on fulfilment of each of the sub-clauses. Therefore, publication by all three modes namely (i) public reading in some conspicuous place of the town/village in such person ordinarily resides; (ii) affixation at some conspicuous part of the house or homestead and (iii) affixation at some conspicuous part of the court house are mandatory under Section 82(2) of the Code. PW1 in his cross-examination admitted that he did not paste the notice in the notice board of this court and handed over the notice to In-Charge V-B for due compliance. However, In-Charge V-B did not confirm that he pasted the notice in the notice board of this court and stated that he could not recollect and affirm the same due to lapse of time. Furthermore, there are no photographs of said State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 10 of 11pasting on the court notice board available on record. Therefore, there is a clear failure on behalf of the process- server to comply with all the three modes of publication and therefore, the publication is an invalid publication.
15. The language of Section 82(2)(i) has to be strictly construed as also the procedure contained therein has to be treated as mandatory and not directory as it is no longer a procedural provision but directly creates liability as an offence. Reliance is also placed upon the decision in Pawan Kumar Gupta vs. The State of West Bengal, (1973) 1 CALLT 300 and Rohit Kumar @ Raju vs. State of NCT Delhi and BSES Rajdhani Power Limited, (2008) 63 AIC 292.
16. In view thereof, the accused persons are acquitted for the offence under Section 174A of the IPC. Both the accused persons have already furnished bail bonds under Section 437A of the Code.
17. File be consigned to record room.
Dictated and announced in open Court on 19.09.2022.
(T. PRIYADARSHINI) Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 19.09.2022 State Vs. Surender Kumar Goyal & Anr.
FIR No. 663/2016, PS: Saket Page 11 of 11