Delhi District Court
Jaswinder Singh vs The State on 13 May, 2022
IN THE COURT OF SH. R.L. MEENA: ADDITIONAL
SESSIONS JUDGE-05: DWARKA COURTS: NEW DELHI
Criminal Appeal No. 78-2021
CNR No. DLSW01-006957-2021
Jaswinder Singh,
S/o. Sh. Narender Singh,
R/o. House no. C-105-C, Tilak Vihar,
Tilak Nagar, Delhi - 110018
.... Appellant
VERSUS
The State,
(NCT of Delhi) .... Respondent
Date of institution : 03.08.2021
Date of reserving the order : 12.05.2022
Date of pronouncement : 13.05.2022
JUDGMENT
1. This is an appeal u/s 374 (3) of the Code of the Criminal Procedure, 1973 (Cr.P.C) preferred by Jaswinder Singh, accused/appellant against the impugned judgment dated 05.02.2021 and order on sentence dated 06.07.2021 passed by the court of Ms. Sadhika Jalan, Learned Metropolitan Magistrate (Mahila Court)-04, South-West District, Dwarka Courts, New Delhi in case FIR No. 929/2014, PS : Uttam Nagar, under Section 174A IPC whereby appellant was sentenced to Simple Imprisonment for One year and also fine of Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 1/10 Rs. 9,000/- and in default of payment of fine, appellant shall further serve Simple Imprisonment for 30 days.
2. The case of the prosecution, in brief, is that complainant married accused/appellant on 30.10.2011. After the said marriage, accused and his family members started harass and beat complainant for giving insufficient dowry to them. On 08.06.2014, complainant came to know that her husband (accused) run away with another married woman Smt. Satnam Kaur regarding which an FIR was lodged at PS Kirti Nagar. During the course of investigation, warrants were issued against the convict/appellant from the Court concerned which could not be executed. Thereafter, process under Section 82 Cr.P.C. was also issued against him but to no avail. Ultimately, he was declared PO vide order dated 10.04.2015.
3. Upon completion of the investigation, charge-sheet was filed by the police against the present appellant/accused and his family members without arrest of the present convict. Thereafter, accused persons except present accused were supplied documents in compliance of Section 207 Code of Criminal Procedure (hereinafter referred to as CrPC). Charge for the offences punishable under Section 498A, 406 read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC) were framed against the other accused persons vide order dated 01.06.2015, while present appellant/accused remained Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 2/10 'proclaimed offender'. Other accused persons pleaded not guilty and claimed trial.
4. Thereafter, prosecution started leading the evidence against all the accused persons. During the course of evidence, present appellant/convict was apprehended by the police and he was produced before the court. Vide order dated 31.07.2019, charge for the offence under Sections 498A, 406 and 174A IPC were framed against him to which he pleaded not guilty and claimed trial.
5. Prosecution, in support of its case, examined ten witnesses in total. Statement of accused u/s. 313 Cr.PC was recorded. Accused did not choose to lead evidence in his defence.
6. Learned Trial Court vide order dated 05.02.2021, acquitted all the accused persons including convict/appellant for the offence punishable under Section 498A/406/34 IPC. However, present appellant/convict was convicted and sentenced for the offence punishable under Section 174A IPC.
7. Aggrieved by the impugned Judgment and the Order on Sentence for the offence punishable under Section 174A IPC passed by the learned trial court, the appellant preferred the present appeal, notice of which was given to the State/respondent.
8. During the course of arguments, counsel for the appellant has challenged the impugned order on the following grounds Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 3/10
(i) That learned Trial Court failed to appreciate the fact that all the proceedings i.e. lodging of complaint by the complainant, registration of FIR against the appellant and his family members and issuance of warrant and proclamation proceedings under Section 82 Cr.P.C. were carried out on in the back of the appellant/convict, as a result of which, he was not aware about the said proceedings.
(ii) That learned Trial Court has also failed to appreciate the fact that there is no evidence on record to prove that appellant/convict has absconded or concealed himself to avoid the execution of warrants issued by learned Trial Court.
(iii) That appellant/convict has already spent a period from 14.06.2019 to 10.01.2020 in judicial custody as under trial prisoner, at trial stage. Out of total sentence, appellant/convict has already undergone approximately seven months.
9. It is prayed by counsel for the appellant/convict that in view of the aforesaid facts and circumstances, the impugned judgment dated 05.02.2021 and order on sentence dated 06.07.2021 passed by learned Trial Court be set aside in the interest of justice.
10.On the contra, Learned Addl. PP for the State has vehemently opposed the said arguments stating that the plea of the convict/appellant regarding non awareness about the proceedings of warrants and proclamation under Section 82 Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 4/10 Cr.P.C. is not sufficient ground for setting aside the judgment and conviction order dated 05.02.2021 and 06.07.2021 for the offence punishable under Section 174A IPC. It is further submitted that the impugned order is a reasoned order, which does not require any interference by this court.
11. I have heard arguments advanced by Sh. Satnam Singh, counsel for the appellant and Shri Dushyant Siwatch, Learned Addl. PP for the State and have gone through the material on record.
12. I have given my thoughtful consideration to the submissions made on behalf of the parties and perused the trial court record carefully. The present accused/applicant was charged for the offence punishable u/s 174-A IPC. Section 174-A of the Indian Penal Code, was inserted in the said Code by Section 44(b) of the Act 25 of 2005 and came into effect on 23.06.2006, and prescribed punishment for non appearance in response to a proclamation under Section 82 Cr.P.C read as under:-
"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."Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 5/10
13.Bare perusal of the said provision of law, it is apparent that in order to attract the offence punishable u/s 174-A IPC, there must be a proclamation under Section 82 Cr.P.C wherein it has to be specifically mention the specified place and specified time as required by proclamation under Sub-Section (1) of Section 82 Cr.P.C. Sub-Section (1) of Section 82 Cr.P.C reads as follows:
(1) If any court has any reason to believe whether after taking evidence or not) 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, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation."
14.Further Sub-Section (2) of Section 82 Cr.P.C which prescribes the manner in which proclamation under Sub-Section (1) of Section 82 Cr.P.C is to be published, reads as follows:-
"(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides."Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 6/10
15.In the present case, the trial court record reveals that investigating officer moved an application for issuing warrant of arrest against the accused vide application before the trial court which was allowed vide order dated 22.11.2014. Accordingly, warrant of arrest was ordered to be issued against the accused/petitioner.
16.It is further to be note here that on 20.12.2014 again IO SI Vikas Sahu moved an application for issuing proclamation under Section 82 Cr.P.C and claimed that accused was deliberately absconding for avoiding his arrest. The said application of the IO was also allowed by learned trial court on 25.12.2014 and process u/s 82 Cr.P.C was issued against the accused on 03.01.2015 which was to be returnable on 19.02.2015.
17.TCR further reveals that a statement of process server IO SI Vikas Sahu was recorded by learned M.M on 21.02.2015 which reads as under:-
"On 13.01.2015, I was posted at PS Uttam Nagar. On that day, process under Section 82 Cr.P.C. of accused Jaswinder Singh S/o Shri Narender Singh was marked to me for execution.
Accordingly, on the said date, I went at C-105, Tilak Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 7/10 Vihar, Tilak Nagar, Delhi at the residence of accused Jaswinder Singh S/o Shri Narender Singh to execute the process under Section 82 Cr.P.C. and inquired about the accused. His father, namely, Narender Singh S/o Shri Dewan Singh met me and told that accused is not residing here for past 8-9 months. Accordingly, I affixed the copy of the process under Section 82 Cr.P.C. on the gate of the house of the accused. The process under Section 82 Cr.P.C. was also announced through beat of drums. I affixed the copy of process under Section 82 Cr.P.C. on the notice board of the Court. My report in this regard is Ex.PS1/1 bearing my signature at point A."
18.Bare perusal of the abovesaid statement of process server, it is apparent that he was entrusted the process u/s 82 Cr.P.C to execute the same. Further, I find that there is also requirement of law that there must be specified time to be mentioned in the process u/s 82 Cr.P.C regarding appearance of accused/petitioner before the court but no specified time has been mentioned in the said process. It is further to be noted here that there is no proceeding on record to show as to whether on Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 8/10 19.02.2015, after the return of process, the name of accused/petitioner was called so that he could appear before the court.
19.Further, I find that process server has also not mentioned the date when he affixed the process u/s 82 Cr.P.C on the notice board of the court.
20.It is settled proposition of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all (See. Babu Verghese Vs. Bar Council of Kerala, (1999) 3 SCC 422, Nazir Ahlmad Vs. King Emporer AIR 1936 Privy Council 253 and Taylor Vs. Taylor (1875) 1 Ch. D 426.
21.In the present case, it is the allegation of the prosecution that convict/appellant had deliberately did not appear before the Court despite proclamation published under Section 82 Cr.P.C. against him on 10.04.2015, therefore, he has committed the offence punishable under Section 174A IPC.
22.It is worth to note here that prosecution in order to prove the said charge under Section 174A IPC has not examined a single witness. In the absence of any evidence against the said charge, prosecution has miserably failed to prove its case against the convict for the offence punishable under Section 174A IPC. In the absence of prosecution evidence regarding said offence, accused/convict also could not get opportunity to cross-examine Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 9/10 the prosecution witnesses.
23.In the light of the aforesaid facts and circumstances, I am of the considered view that prosecution has miserably failed to prove the offence punishable under 174A IPC, therefore, Learned Trial Court has committed error by convicting the accused for the said offence. Accordingly, the conviction and sentence for the offence punishable under Section 174A IPC passed by the Learned Metropolitan Magistrate vide impugned order is hereby set aside and reversed. Consequently, accused is acquitted for the offence punishable under Section 174A IPC. In view of the above, the present appeal filed on behalf of the appellant is allowed. TCR alongwith one copy of this order be sent back to the concerned Learned Trial Court.
24.Appeal file be consigned to the record room.
(R.L. Meena) ASJ-05 (South- West), Dwarka Courts, Delhi 13.05.2022 (hg) Criminal Appeal no. 78/2021 Jaswinder Singh Vs. State Page No. 10/10