Delhi District Court
State vs . Mirza Naee Baig on 11 May, 2022
DLSE020408222018
IN THE COURT OF METROPOLITAN MAGISTRATE-06, SOUTH EAST, DELHI
(Presided Over by SH. ANIMESH KUMAR)
Cr CASES/8226/2018
STATE VS. Mirza Naee Baig
FIR NO: 173/18
P. S Kalkaji
U/s 174 A IPC
JUDGMENT
Name of the complainant : ASI Mahendra Singh,
Belt No. 397/SE,
Posted at PS Kalkaji
New Delhi.
Date of Commission of offence : 25.01.2018
Name of the accused : Mirza Naeem Baig,
S/o Sh. Munir Baig,
R/o H. No. B-544, 2nd Floor,
Green Field Colony
Faridabad.
Plea of accused : Not Guilty
Case reserved for orders : 26.04.2022
Final Order : Convicted
Date of orders : 11.05.2022
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BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Mirza Naeem Baig for having committed the offence punishable u/s 174 A of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. As per the case of prosecution, one criminal complaint case bearing no.
4994355/16 titled "Sobhawanti Gupta vs. M N Modes" was filed against the accused u/s 138 of the Negotiable Instruments Act, 1888. The said complaint case was pending before the Court of Ms. Mridul Gupta, MM, Dwarka Court, New Delhi. During the pendency of the said case, the accused did not appear despite issuance of non-bailable warrants. Thereafter, proclamation u/s 82 Cr.P.C was also issued against the accused whereby the accused was directed to appear before the concerned Court within 30 days. The said proclamation was duly executed by the concerned process server on 13.06.2017. However, accused had failed to appear before the Court despite issuance of proclamation, and, therefore, the accused was consequently declared absconder by the concerned Court vide order dated 25.01.2018. Thereafter, direction was given to the police official to register the present FIR against the accused for the offence punishable u/s 174A IPC.
3. During the course of investigation, the accused was apprehended by the police officials of PS Kalkaji on 13.10.2018. Thereafter, after completion of codal formalities, the accused was produced before the Court and was sent to judicial custody. After the completion off investigation, charge-sheet was filed against the accused for the offence punishable u/s 174A IPC.
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4. A charge u/s 174 A IPC was framed against accused on 28.02.2020 to which he pleaded not guilty and claimed trial.
5. In order to prove the guilt of accused persons, the prosecution examined following four witnesses:
Sh. Vidya Bhushan, Ahlmad deposed as PW-1;
HC Ramesh deposed as PW-2;
Ms. Anchal Gupta Bansal deposed as PW-3; and HC Manveer Pal deposed as PW-4.
6. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 26.04.2022. Thereafter, statement of the accused was recorded on 26.04.2022 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein he denied the allegations and claimed to have been falsely implicated.
7. PW Vidya Bhushan was the Ahlmad posted in the Court of Sh. Mridul Gupta, Ld. MM-09 (NI Act), Dwarka. He had deposed that the present case file was pertaining to the Court of Sh. Apoorv Bharadwaj, Ld. MM, NI Act Dwarka. Thereafter, PW Anchal Gupta Bansal was examined who was Ahlmad posted in the Court of Sh. Apporv Bharadwaj, Ld. MM. She had brought the relevant case record of the present case. In her testimony, she had interlia deposed that the accused was declared absconder by the concerned Court on 25.01.2018, however, he was subsequently acquitted in the said criminal complaint case. 3
8. HC Ramesh and HC Manveer were the police officials who were examined by the prosecution in order to prove the fact of arrest of the accused in the present case after the registration of FIR.
9. PW2 HC Ramesh Kumar deposed that on 13.10.2018 HC Manvir arrested accused Mirza Naeem Baig in his presence. Thereafter, HC Manvir prepared arrest memo and conducted personal search of accused vide memos Ex. PW2/A and Ex. PW2/B. Witness correctly identified the accused.
10. PW4 HC Manvir Singh deposed that on 13.10.2018, he went to H. NO. B544, Green Field Colony, Faridabad and arrested the accused. He prepared arrest memo of accused already Ex. PW2/A. He conducted personal search of accused Ex. PW2/B. Witness correctly identified the accused in the court.
11. Accused has also admitted documents i.e. factum of registration of FIR and statement of process server u/s 294 Cr.PC Ex. P1 and P2 respectively. Therefore, DO/ASI P C Kant and ASI Ran Pal Singh were dropped from the list of witnesses.
12. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused. 4
13. I have considered the rival submissions and perused the materials available on record.
14. As per the case of prosecution, the accused being an accused in the present case did not appear in the Court despite execution of summons, arrest warrants and proclamation u/s 82 Cr.P.C, and, therefore, committed an offence u/s 174A IPC.
15. Section 174A IPC makes non-appearance of a person (against whom proclamation u/s 82 Cr.P.C has been executed) a specific offence. It 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 subsection (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 subsection (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."
16. A bare reading of the provision enshrined in section 174A IPC clearly shows that an offence is committed if an accused has not appeared at the specified time and place as required by the proclamation issued u/s 82(1) Cr.P.C. Hence, issuance of proclamation u/s 82 Cr.P.C is sine qua non for the offence u/s 174A IPC.
17. In the present case, in order to prove the issuance of proclamation u/s 82 Cr.P.C, the prosecution has primarily relied upon the testimony of PW Anchal Gupta Bansal, Ahlmad of the concerned Court which has issued the said proclamation and also on the report of process server which has been admitted by the accused u/s 294 Cr.P.C.
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18. PW Anchal Gupta Bansal had brought relevant case record of CC No. 4994355/16 wherein the accused was declared absconder vide order dated 25.01.2018 passed by Ms. Mridul Gupta, Ld. MM, Dwarka Courts, New Delhi. Duly signed and sealed copy of the said order is also available on record. Hence, I can also take a judicial notice of the said proclamation order u/s 57 of the Indian Evidence Act, 1872.
19. Perusal of proclamation order dated 25.01.2018 would clearly show that the accused Mirza Naeem Beig was declared absconder in the present case after the execution of proclamation u/s 82 Cr.P.C. He was declared absconder after the recording of statement of process server who had executed the said proclamation. The said statement had been admitted by the accused u/s 294 Cr.P.C.
20. Further, factum of his arrest could be clearly proved from the testimony of PW HC Ramesh and PW ASI Mohar Pal who in their respective testimonies had categorically stated that the accused was arrested on 13.10.2018 by the IO. Both of them were duly cross-examined by the Ld. Counsel for the accused and no material contradictions could be noticed in their respective testimonies. Both of them had also correctly identified the accused in the Court. Hence, factum of arrest of the accused after the registration of the present case was also duly proved by the prosecution.
21. Further, when the incriminating materials were put up before the accused at the stage of recording of his statement u/s 313 Cr.P.C, he had simply stated that he was falsely implicated in the present case. No explanation was given by the accused 6 behind his non-appearance at the specified time and place after the issuance of proclamation u/s 82 Cr.P.C. It would appear that the accused did not have any explanation or justification to offend behind his non-appearance in the Court.
22. During the final arguments, Ld. Counsel for the accused had submitted that the accused had already been acquitted in the main complaint case by the concerned Court, hence, he also deserved to be acquitted in the present case also.
23. It should be noted that offence u/s 174A IPC is a standalone offence which has no bearing to the other alleged offences and is not an offence of personal nature between the parties. Thus, even if the criminal complaint u/s 138 NI Act (in which the accused was originally declared absconder) has been settled between the parties or the accused has been acquitted therein, the said settlement or acquittal would have no bearing on the trial of offence u/s 174A IPC. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Mukesh Bhatia & Ors. vs. State of NCT of Delhi & Ors. W.P. (CRL) No. 1852 of 2021 dated 12.04.2022.
24. From the perusal of materials available on record, it is clear that the accused has been declared absconder in the present case vide order dated 25.01.2018. He was subsequently arrested by IO on 13.10.2021 and he had no reasonable explanation to make regarding his non-appearance from the Court even after issuance of summons/warrants and proclamation.
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25. Hence, in view of the above, I am of the considered view that the prosecution has successfully proved the guilt of accused Mirza Naeem Baig for the offence u/s 174A IPC beyond reasonable doubt.
26. Therefore, in view of the above discussions and findings, accused Mirza Naeem Baig stands convicted for the offence u/s 174A IPC.
27. Let the copy of this judgment be supplied to the accused Mirza Naeem Baig free of cost.
Announced in the open court on 11.05.2022 (Animesh Kumar) MM-06, South East, New Delhi It is certified that this judgment contains 08 pages and each page bears my signatures.
(Animesh Kumar) MM-06, South East, New Delhi/11.05.2022 8