Delhi District Court
State vs . Irfan @ Chenu on 21 December, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Irfan @ Chenu FIR NO. : 579/15, U/s 174A IPC PS : SEELAMPUR A. CIS No. of the Case : 462375//2015 B. FIR No. : 579/2015 C. Date of Institution : 27.08.2015 D. Name of the complainant : -NA-
E. Name of the Accused, his : Irfan @ Cheenu S/o Parentage & Addresses Merajuddin, R/o K227, New Seelampur, Delhi F. Representation on behalf of : Sh. Ankit Gautam, Ld. APP.
State
G. Offence complained of : U/s 174A IPC
H. Plea of the Accused : Pleaded not guilty and
claimed trial.
I. Order reserved on : 14.12.2022
J. Date of Order : 21.12.2022
K. Final Order : CONVICTED
Brief Statement of Reasons for Decision of the Case
1. It is alleged against the accused Irfan @ Cheenu that he had failed to appear before the court of Sh. Pulastya Pramachala Ld. ASJ on 15.10.2014 as required by proclamation issued u/s 82 Cr.P.C. It is also alleged against the accused that he was declared FIR No.579/15 State vs. Irfan @ Cheenu PS Seelampur Page No.1 of 9 a proclaimed person by the said court vide order dated 05.01.2015. Accordingly, he stands charged for committing offence u/s 174A IPC.
2. The prosecution in support of its case has examined 3 witnesses. PW1 Ct. Suresh Kumar on 17.08.2015 was called by IO/SI Jitender at Karkardooma Courts and thereafter IO made the arrest of accused Irfan @ Cheenu in his presence. PW2 ASI Zile Singh was the duty officer and after receiving the tehrir from SHO Anand Sagar he made DD no. 18A and handed the same to IO/SI Jitender for investigation. PW3 IO/SI Jitender after receiving the copy of FIR and order dated 05.01.2015 in case FIR No. 338/11 formally arrested the accused Irfan @ Cheenu after he was produced on production warrants. He prepared the chargesheet and presented before the court. Vide a separate statement dated 19.04.2018 Ld. Counsel for accused admitted the contents of order dated 15.10.2014 passed by Sh. Pulastya Parmachala, Ld. ASJ, Shahdara, KKD Courts, Delhi.
3. After the closing of Prosecution Evidence on 16.02.2022, all the incriminating evidences were put to the accused in his examination under S. 313 r/w 281 Cr. P. C. which was conducted on 29.10.2022. Accused did not wish to lead any DE and the matter was fixed for final arguments. Final arguments were heard. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
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4. Section 174A of the Penal Code, 1860 reads as under:
"174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
5. Section 174A IPC is divided into two parts. First part deals with the situation where the proclamation is issued under Section 82(1) Cr.P.C. and when the accused failed to appear despite its publication, he is to undergo imprisonment upto three years or with fine or with both. The second part of Section 174A relates to the declaration issued by the Court under Section 82(4) Cr.P.C. wherein serious offences have been prescribed and despite declaring a person as proclaimed offender, when he fails to appear, the punishment provided is imprisonment upto seven years and payment of fine.
6. An argument was raised by Ld. Counsel for accused that Section 195 Cr.P.C. clearly barred the Court from taking cognizance of any offences punishable under Sections 172 to 188 IPC. Provision of Section 195 Cr.P.C. is mandatory and the Court has no jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing by the public servant.
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7. In Maneesh Goomer vs. State, 2012(1)JCC 465 (Crl.M.C. 4208/2011) decided on 04.01.2012 Hon'ble Delhi High Court has categorically held that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code with effect from 23.06.2006.
8. Section 174A IPC was introduced in the Code with effect from 23.06.2006 and Section 195A Cr.P.C. which provides that no Court shall take cognizance of offences punishable under Sections 172 to 188 IPC (Both inclusive) or of the abetment of committing the offence, except by complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate, was a part of the Criminal Procedure Code since 1974 when the new Criminal Procedure Code came into force. No corresponding amendment was brought into Section 195 (1) (a) in the year 2006 when a new offence, by adding Section 174A was introduced in Indian Penal Code. By no stretch of imagination, it can be inferred or presumed that Section 174A would be deemed to be included in between Section 172 to Section 188 IPC.
9. The Court in Maneesh Goomer (supra) held :
"....it may be noted that Section 174-A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code FIR No.579/15 State vs. Irfan @ Cheenu PS Seelampur Page No.4 of 9 with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner. "
10. In Moti Singh Sikarwar vs. State of U.P. and Ors, MANU/UP/2481/2016, decided on 29.11.2016 by the High Court of Allahabad it has been observed that bar created by Section 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."
11. In A. Krishna Reddy v. CBI 2017 SCC OnLine Del 7266 :
(2017) 3 DLT (Cri) 391, Hon'ble Delhi High Court in para 29 has observed that:
"No separate investigation is required to be conducted as the orders of the Court declaring the petitioner to be Proclaimed Offender are part of the record in the main challan. Object and purpose to incorporate Section 174A IPC primarily is to ensure that the accused / suspects do not scuttle FIR No.579/15 State vs. Irfan @ Cheenu PS Seelampur Page No.6 of 9 investigation or trial by remaining absconding without valid or sufficient reasons. In such a scenario, when the suspects or accused abscond, possibility of valuable evidence to be washed away cannot be ruled out."
12. In State vs. Proclaimed Offenders of Delhi and others, Crl.No.2021/2010, decided on 11.08.2010, Hon'ble Delhi High Court has held that supplementary charge-sheet under Section 174A IPC can be filed or the offence under Section 174A IPC can be added in the main charge-sheet. Apparently, no fresh investigation was required to be carried out.
13. In Sunil Tyagi vs. Govt. of NCT of Delhi and Another CRL.M.C. 4438/2013 & CRL.M.A. 15894/2013, Hon'ble Delhi High Court has observed that:
"21. The legislature by enacting Section 174A IPC has further penalised the non-appearance of a proclaimed offender. The very basis of fair trial is threatened if an accused/suspect is declared as a proclaimed offender without proper service, or if proclamations and non-bailable warrants are issued in a routine manner.
22. The legislature seeing the growing number of Proclaimed offenders inserted Section 174A IPC by way of Clause 44 of the CrPC. (Amendment) Act, 2005 (25 of 2005) which was brought into force w.e.f. 23rd June, 2006 vide Notification No. SO 923(E) dated 21st June, 2006, hoping that it would be a deterrent for persons fleeing from justice.
23. Section 174A IPC penalizes the non- appearance of a person as required by a proclamation published under. In case of non- appearance consequent to a proclamation under Section 82(1) of the Code for a term up to three years/fine/both and in case of a declaration under Section 82(4) of the Code (in respect of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, FIR No.579/15 State vs. Irfan @ Cheenu PS Seelampur Page No.7 of 9 459 or 460 of the IPC for a term upto seven years with fine.
Since non-appearance of accused in response to the proclamation under Section 82 CrPC has been made a substantive offence, the provisions of Section 174A IPC are required to be invoked against absconding accused. When the accused fails to appear before the court in response to the proclamation issued under Section 82(1) CrPC, within the period of 30 days from the date of proclamation, or fails to appear at the specified place and time required by the proclamation issued under Section 82(4) CrPC, he is punishable with imprisonment for a term which may extend to three years or with fine or with both and imprisonment for a term which may extend to seven years or with fine or both, respectively."
14. In the present case, proclamation under S. 82 Cr. P.C. was issued against accused Irfan @ Cheenu and he was directed to appear before the court of Sh. Pulastya Pramachala, Ld. ASJ on 15.10.2014. The order passed by Ld. ASJ has been admitted by Ld. Counsel for accused. As per the order, Ld. ASJ has observed that accused Irfan was not found at his given address and it was told to process server by his father that he is not coming to his house. It is also observed that process u/s 82 Cr. P. C. was pasted at his house and proclamation was also announced in the locality on 09.09.2014. Vide, order dated 05.01.2015, Ld. ASJ had observed that proclamation under s. 82 Cr. P.C. was already published in the newspapers Asian Age and Dainik Jagran dated 13.09.2014, edition New Delhi. Therefore, process under S. 82 Cr. P. C. was duly executed against accused Irfan @ Cheenu as per the procedure laid not in the section itself including publication and public announcement, despite that he failed to appear.
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15. Thus, in view of the above discussion, accused Irfan @ Cheenu is found guilty in the present case and resultantly, he stands convicted in the present case. Let the convict be heard separately on quantum of sentence.
Digitally signed by VIPUL SANDWAR VIPUL Date: SANDWAR 2022.12.21 16:01:45 +0530 Announced in the open (VIPUL SANDWAR) Court on 21st December, 2022 MM-02/NE/KKD COURTS FIR No.579/15 State vs. Irfan @ Cheenu PS Seelampur Page No.9 of 9