Delhi District Court
By Harjyot State vs . Pram Govinda @ Govinda on 10 April, 2019
IN THE COURT OF SH. HARJYOT SINGH BHALLA:
ACMM (SOUTH), SAKET, NEW DELHI
Digitally signed
by HARJYOT State Vs. Pram Govinda @ Govinda
HARJYOT SINGH
BHALLA
FIR No. 718/18
SINGH Date: P.S. Saket
BHALLA 2019.04.27 U/s 174A IPC
16:16:57
+0530
J U D G M E N T (ORAL)
A. Cr.C. No. : 1664/2019
B. Date of its institution : 23.03.2019
C. Name of the complainant : HC Ashok Kumar
D. Date of commission of offence : 05.07.2018
E. Name of the accused : Pram Govinda @ Govinda
S/o Sh. Thakur Chand
R/o H. No. 158, B/5,
Sanjay Colony, Bhati Mines,
New Delhi
F. Offence complained of : U/s 174 A IPC
G. Plea of accused : Pleaded not guilty
H. Date when judgment reserved : Oral
I. Date when judgment pronounced : 10.04.2019
J. Final order : Acquitted
BRIEF STATEMENT OF FACTS FOR THE DECISION
1. In the present case FIR was registered under Section 174A IPC pursuant to the orders dated 22.11.2018 passed by Ms. FIR No. 718/18 State Vs. Pram Govinda @ Govinda 1/8 Niharika Kumar, Ld. MM04, NI Act, South, Saket Court Complex, New Delhi. Presence of the accused was required by the said Ld. MM in complaint case No. 472696/2016 titled as D.C. Tayal Vs. M/s Vasudha Metals & Industries Ltd. The Ld. MM had issued a process under Section 82 Cr.PC returnable for 05.07.2018 against the accused. The said process was apparently executed on 03.06.2018 at alleged residential address of the accused bearing no. E5, Harswaroop Colony, Fatehpur Beri, Delhi. However, the accused failed to appear and vide order of 22.11.2018, the present FIR was directed to be registered.
2. Thereafter, the investigation in FIR No. 718/18 was carried out. IO collected the necessary documents and filed chargesheet.
3. During recording of evidence, the accused admitted the order dated 22.11.2018 and the existence, recording of the FIR No. 718/18 on the date and time mentioned therein but not the truth of the contents. He also admitted DD No. 58B dated 24.01.2019 pertaining to his arrest. In view thereof, the witnesses were dropped except the Process Server who executed the process. During recording of evidence of the Process Server, Ld. APP dropped the IO as well as he had only carried out formal investigation and all FIR No. 718/18 State Vs. Pram Govinda @ Govinda 2/8 the relevant documents stood admitted by the accused or exhibited and proved by the process server. At the stage of recording of Statement of Accused under Section 313 Cr.PC he stated that he was not residing at the address E5, Harswaroop Nagar for last two and a half years and was residing at A158/B5, Ground Floor, Sanjay Nagar, Bhati Mines, New Delhi.
4. The following documents were exhibited by the prosecution:
Ex.PW1/A Certified copy of report of Process Server Ex.P1 FIR No. 718/18 dated 28.11.2018 Ex.P2 Certificate under Section 65 B Evidence Act regarding FIR No. 718/18 Ex.P3 DD No. 58B dated 24.01.2019 Ex.P4 PO order copy under Section 82 Cr.PC dated 22.11.2018
5. In defence evidence, he examined himself as a witness as also produced his spouse as defence witness.
6. The following documents were exhibited by the defence:
Ex.DW1/A Electricity Bill
Ex.DW1/B Election I Card
(OSR)
FIR No. 718/18
State Vs. Pram Govinda @ Govinda 3/8
Ex.DW1/C Aadhar Card
(OSR)
7. There are 2 questions to be answered in the present case:
1. Whether the proclamation under Section 82 of Cr.PC was duly executed?
2. Whether the accused failed to appear before the court on the date and time fixed without any just or lawful excuse or defence?
8. As far as question no.1 is concerned i.e. Whether the proclamation under Section 82 of Cr.PC was duly executed? I have perused the record of complaint case no. 472696/2016 under Section 138 NI Act after summoning the same. In this case accused was declared PO after publication of process under Section 82 Cr.PC.
9. I have noticed that this is one of the 5 cases against the accused under the same provision and in this case some other address of the accused is mentioned in the memo of parties of the complaint under Section 138 of NI Act. Clearly, there is no proof of residence of accused on record. The only address mentioned in the case is the one where the legal notice was sent by the complainant in the said case i.e. at the business address of a FIR No. 718/18 State Vs. Pram Govinda @ Govinda 4/8 company M/s Vasudha Metals & Industries Pvt. Ltd. at Sadar Bazar. There is no proof on record to show that accused no.2 therein was a Director or Authorized Signatory of the said company.
10. Be that as it may, the address of Sadar Bazar being the business address of the company (It is not alleged that the same is registered address as well), the requirement under Section 82 (2) (1) (b) that proclamation has to be made at the address where the person ordinarily resides is not fulfilled as clearly this is not the residential address of the accused but the address of the company.
11. I may note that as per the report of the process server which is Ex.X1, the process in the present case was executed only at the given address of the accused. Accused has already in his defence stated that he was not residing at the given address since last several years and that his address was of Bhati Mines. The electricity bill Ex.DW1/A is of July 2017. Clearly, there is no evidence collected by the IO as address proof of the accused for the address on which the process was executed. Clearly, the language of Section 82 Cr.PC shows that the proclamation has to be affixed on the house in which such person ordinarily resides or to some conspicuous place of such town or village. Therefore, firstly, by affixing a copy at Fatehpur Beri, the compliance qua residence at FIR No. 718/18 State Vs. Pram Govinda @ Govinda 5/8 Bhati Mines cannot be said to have been made. They are different villages within Delhi.
12. Further, unlike the CPC where service can be effected at the last known address, Section 82 Cr.PC specifically uses present tense in the relevant sub clause (b) i.e. "in which such person ordinarily resides". Therefore, it is not the last known address but the address of the accused in presenti (of course, it does not mean that if the accused is merely not coming to his ordinary residence but shifts or hides to some other place, the criteria will not be fulfilled).
13. There is yet another aspect. The report Ex.X1 is supported by a print out of a photograph taken after affixing the process at E5, Harswaroop Colony. However, there is no photograph of affixation at the court premises. Thereafter, the DD entry of departure and arrival assume significance. The DD entry no. 30 B and 36 B dated 03.06.2018 copy of which has been obtained from the original record summoned by the court is on record (although not exhibited) records that HC Tahir Hussain had returned at 06.30 PM after execution of process at Fatehpur Beri. There is no mention that he had returned from the Saket Court after execution of process at Fatehpur Beri. Even though not formally proved, this document is of the prosecution and can always be read FIR No. 718/18 State Vs. Pram Govinda @ Govinda 6/8 against prosecution without formal proof thereof. This witness was duly cross examined on this aspect as well and he could not offer any cogent explanation as to why only photograph of E5, Harswaroop Colony was placed on record and even in the DD entry, there was no mention of process being published at the court complex. This raises a serious doubt that the process was ever put on some conspicuous place of the court house. I may note that the report is typed and could very well be a proforma report considering that there are two different fonts used in the report Ex.X1 and the details filled in the report are clearly of a different font giving only one impression that the report is in fact based on a proforma lying in the memory of the computer at PS. Therefore, I conclude that process was never affixed at the court.
14. Therefore, on both these counts the execution of process is improper. In fact, non affixation of process in the court complex assumes greater significance and vitiates the process as even the address of the accused where the proclamation was affixed seems incorrect.
15. It may be pertinent to note that before the amendment introduced Section 174A IPC in the statute book, there was no offence for non appearance in the court after publication of process under Section 82 Cr.PC but a person could thereafter be arrested by FIR No. 718/18 State Vs. Pram Govinda @ Govinda 7/8 anyone at any time. However, since now an offence has been created, the ingredients of Section 82 must be strictly satisfied before an offence can be said to have been committed. Therefore, 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.
16. Reliance is 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 Ltd., (2008) 63 AIC 292.
17. In view of the answer to question no. 1, I need not answer the question no.2 in the present case, although, it is suffice to say that the order of the court records that he did not appear.
18. In view thereof, accused is acquitted for the offence under Section 174 A of IPC.
Dictated and announced (Harjyot Singh Bhalla)
in the open court ACMM/South
on 10.04.2019 Saket Courts: New Delhi
FIR No. 718/18
State Vs. Pram Govinda @ Govinda 8/8