Delhi District Court
State vs Raj Kumar @Kalu on 26 April, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 462/2021
STATE Vs. RAJ KUMAR @ KALU
State vs. Raj Kumar @ Kalu
eFIR No. 50/2020
Police Station : INA Metro Station
Under Section : 103 DP Act and 174A IPC
Date of institution : 29.01.2021
Date of reserving : 25.04.2024
Date of pronouncement : 26.04.2024
JUDGMENT
a) Serial number of the case : 462/2021
b) Date of commission of : 06.12.2020 - Offence u/s 103 offence DP Act 16.05.2023 - Accused declared as PO
c) Name of the complainant : Sh. Shivshankar Kushwaha
d) Name, parentage and : Raj Kumar @ Kalu S/o Sh. address of the accused Gajraj R/o H. No. B-1/906, Madanpur Khadar, JJ Colony, Jaitpur, New Delhi
e) Offence complained of : 103 DP Act and 174A IPC
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Acquitted of the offence u/s 174A IPC.
Convicted for the offence u/s
103 DP Act
State vs. Raj Kumar @ Kalu
eFIR No. 50/2020, PS: INA Metro Station Page 1 of 14
h) Date of final order : 26.04.2024
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. On 06.12.2020, near Subway, AIIMS Metro Station, the accused was found in possession of five mobile phones, Make Vivo, Spice, Micromax, Lenovo and Samsung Galaxy and as to the possession of the same, he could not produce any bill nor he gave any satisfactory answer. Thereafter, the accused failed to appear in the court despite several summons and warrants and because of the same, the court issued process under Section 82 of the Code of Criminal Procedure, 1973 (hereinafter "the Code") against him, which was duly executed on 12.02.2023. Thereafter, the accused was declared proclaimed offender vide order dated 16.05.2023. Thus, the accused committed offences punishable under Sections 103 of the Delhi Police Act, 1978 (hereinafter referred to as "the DP Act") and 174A of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC").
CHARGE
2. Vide separate orders each dated 20.02.2021 and 10.11.2023, charge for the offences punishable under Sections 379/411 IPC & 103 DP Act and 174A IPC was framed against the accused, who pleaded not guilty and claimed trial. However, vide order dated 18.04.2024, offences punishable under Sections State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 2 of 14 379/411 IPC was compounded.
EVIDENCE OF THE PROSECUTION
3. Prosecution has examined six witnesses witnesses i.e. PW1 Ct. Ravi Shekhar, PW2 Ct. Kamlesh, PW3 Retired SI Kuldeep Singh, PW4 HC Surender Singh, PW5 Ct. Amit and PW6 ASI Vijendra Singh.
4. PW1 Ct. Ravi Shekhar deposed that in the intervening night of 05/06.12.2020, IO ASI Kuldeep Singh received information from a secret informer that a drug addict person who was in habit of stealing mobile phones and purses of passengers traveling in the Metro as well as buses could be apprehended at AIIMS subway as he was going to sell the stolen mobile phones to someone unknown, if raided immediately. Thereafter, IO informed the SHO regarding the information and thereafter, the SHO immediately made a raiding party consisting of PW1, SI Arun Kumar (D-5978) and ASI Kuldeep Singh. Thereafter, PW1 along with raiding party went to AIIMS subway at about 01.00 am. Thereafter, the secret informer checked the nearby places of AIIMS as well as subway of Metro Station. He informed them that there was a person standing on the stairs of subway who was in the possession of stolen mobile phones and was wearing a jacket of black colour and was waiting for someone. Thereafter, IO pointed at the accused to give identification to the raiding party. Thereafter, IO with the raiding party apprehended the accused. He disclosed his name as Raj Kumar @ Kalu S/o Gajraj State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 3 of 14 R/o B-1/906, Madanpur Khadar, J.J. Colony, Sarita Vihar, Delhi. IO conducted personal search of the accused and found one mobile phone, Make Vivo (Blue in colour) from the right pocket of his pant and prepared the seizure memo vide Ex PW1/A. It was found that above mentioned mobile phone was stolen in e- FIR No. 50/2020 i.e. the present eFIR. After searching the jacket of accused, five more mobile phones were found having details viz. (1) Vivo Y53 - golden colour (2) Spice - colour white (3) Micromax (4) Lenovo - colour black and (5) Samsung Galaxy - golden colour, all the mobile phones were without SIM. When IO interrogated the accused about the above said phones, he disclosed that he had stolen these phones from the passengers traveling in the Metro at different times. Thereafter, IO had also seized all the five mobile phones and prepared seizure memo vide Ex PW1/B. Thereafter, IO had arrested the accused vide arrest memo Ex PW1/C and conducted his personal search vide memo Ex PW1/D. IO had handed over all the case properties to the MHC(M). PW1 correctly identified the accused. PW1 also correctly identified the mobile phone, Make Vivo (related to the present eFIR) and the aforesaid five mobile phones as well. The witness was duly cross-examined by the Ld. LAC for the accused.
5. PW2 Ct. Kamlesh deposed that on 27.08.2023, he joined the investigation with IO ASI Vijendra. On that day, PW2 along with IO reached at Tihar Jail No. 1, where IO interrogated accused Raj Kumar @ Kallu. Thereafter, IO formally arrested the accused vide memo Ex PW2/A and also recorded his State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 4 of 14 disclosure statement vide Ex PW2/B. PW2 correctly identified the accused. The witness was duly cross-examined by the Ld. LAC for the accused.
6. PW3 Retd. SI Kuldeep Singh deposed that on 25.11.2020, the investigation of present case was marked to him. Thereafter, he called the complainant to PS and examined him. The complainant told PW3 that his mobile phone was stolen in Metro. Thereafter, PW3 prepared site plan vide Ex PW3/A. On the intervening night of 5/6.12.2020, PW3 received a secret information that a drug addict person who was in habit of stealing mobile phones and purses of the passengers travelling in the Metro as well as buses could be apprehended at AIIMS subway, as he was going to sell the stolen mobile phones to someone unknown. Thereafter, PW3 informed the SHO regarding the said information. The SHO immediately made a raiding party consisting of PW3, SI Arun and Ct. Ravi Shekhar. Thereafter, PW3 along with raiding party went to AIIMS subway at about 01:00 am. Thereafter, they reached at AIIMS subway with the secret informer and on pointing out of the secret informer, the accused was apprehended. Upon checking the accused, one mobile phone was recovered from his right side pant pocket and on checking the phone, it was found that the said mobile was stolen in the present case. Five mobile phones i.e. (1) Vivo Y53 - golden in colour, (2) Spice - white in colour, (3) Micromax, (4) Lenovo and (5) Samsung Galaxy were recovered from the jacket of the accused. Thereafter, PW3 told the accused to produce the ownership of the said mobile phones, however, he failed to provide the same and was unable to give any State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 5 of 14 satisfactory answer regarding the same. Thereafter, PW3 seized the mobile phone of the present case and the remaining five mobile phones were also seized. After interrogation, PW3 arrested the accused and conducted his personal search. PW3 also recorded disclosure statement of the accused vide Ex PW3/B. During the course of investigation, PW3 recorded statement of the witnesses and after completing investigation of the present case, he prepared charge sheet and filed it before the court. PW3 correctly identified the accused. The witness was duly cross-examined by the Ld. LAC for the accused.
7. PW4/Process Server HC Surender Singh deposed that on 12.02.2023, he received proclamation under Section 82 of the Code to be executed at the address of accused Raj Kumar S/o Sh. Gajraj R/o H. No. B1/906, Madanpur Khadar, J.J. Colony, Sarita Vihar, New Delhi. The address provided for execution of process under Section 82 of the Code of the accused was H. No. B1/906, Madanpur Khadar, JJ Colony, Sarita Vihar, New Delhi. On 12.02.2023, PW4 went to the said address of accused where he found that the house was locked from outside. PW4 inquired from the neighbourhood and came to know that the above mentioned house was locked for the last two years. They also disclosed that Raj Kumar used to remain under the influence of intoxicants and his wife had sold the house to one of her relatives. Thereafter, PW4 asked for the statement but nobody gave the statement regarding the same. Thereafter, PW4 called the persons with drum and gathered the people present there and loudly read out the proclamation under Section 82 of the Code and in presence of all of them, PW4 had pasted a copy of the State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 6 of 14 proclamation at the main gate of the house of accused at H. No. B1/906, Madanpur Khadar, JJ Colony, Sarita Vihar, New Delhi and clicked the photographs of the same and the said three photographs were exhibited as Ex CW1/A (Colly). Another copy of the proclamation was pasted upon the notice board of the court. PW4 submitted report vide Ex CW1/B. The witness was duly cross-examined by the Ld. LAC for the accused.
8. PW5 Ct. Amit reiterated the version of PW4 HC Surender Singh, as PW5 had also gone to execute the process under Section 82 of the Code along with the IO/PW4 on 12.02.2023. The witness was duly cross-examined by the Ld. LAC for the accused.
9. PW6 ASI Vijendra Singh deposed that on 25.08.2023, he moved an application for production of accused Rajkumar @ Kalu before the court as he was declared PO vide order dated 16.05.2023 by the court. On 27.08.2023, PW6 along with Ct. Kamlesh Yadav went to Tihar Jail No. 1 on court's directions. Thereafter, with the permission of jail authorities, PW6 interrogated accused Rajkumar @ Kalu and arrested him. PW6 also recorded disclosure statement of accused. Thereafter, the custody of the accused was handed over to the jail authorities and PW6 requested the authorities to produce the accused on 28.08.2023 before the concerned court. On 28.08.2023, the accused was produced before the court and sent to JC. After completing the investigation, PW6 prepared the charge sheet and filed it before the court. PW6 correctly identified the accused. The witness was duly cross-examined by the Ld. LAC for the State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 7 of 14 accused.
STATEMENT / DEFENCE OF THE ACCUSED
10. In his statement recorded under Section 313 of the Code, the accused denied the entire evidence against him. He stated that he is innocent and has been falsely implicated in this case. Accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
11. The record has been thoroughly and carefully perused. The respective submissions of Sh. Naresh Choudhary, Ld. APP for State and Md. Rashid, Ld. LAC for the accused have been considered.
Re: Offence under Section 174A IPC
12. 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 ?
13. It is an admitted position that the accused failed to appear before the Court on the date and time fixed and mentioned in the State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 8 of 14 notice of proclamation. However, can his absence be termed as absence without any just or lawful excuse? Further, was the proclamation duly executed?
14. 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 as proclaimed absconder/ 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/her to appear at a specific place and a specified time not less than thirty days from the date of publishing such proclamation.
15. Under Section 82 of the Code, publication by all three modes are essential, namely:
a) Public reading in some conspicuous place of the town/village in which such person ordinarily resides;
b) Affixation at some conspicuous part of the house or homestead; and
c) Affixation at some conspicuous part of the Court house are mandatory under Section 82(2) of the Code.
16. The failure to comply with all the three modes of publication is to be considered invalid publication, according to State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 9 of 14 law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.
17. Whilst the provision under Section 82 of the Code is procedural in nature, Section 174A IPC is a substantive offence. The proof of an offence must be governed by its own ingredients. While the Court is mindful that Section 82(3) of the Code renders a statement from the Court regarding the due publication of the proclamation as conclusive evidence of compliance with the requirements of Section 82 of the Code, such a mandate does not translate into unequivocal conviction under Section 174A, IPC. If this construction was to be accepted, every allegation under Section 174A IPC would be bereft of the need for evidence and the accused shall stand convicted almost by presumption and not by proof. Such an interpretation is beyond the rules of evidence, which requires each fact in issue to be proved by way of evidence on oath. The deposition of every witness must necessarily be permitted to be cross-examined for it to constitute admissible evidence.
18. In Devendra Singh Negi alias Debu Vs. State of U.P. (1994 Cri LJ 1783), the Allahabad High Court has observed that the words "has absconded or is concealing himself so that such warrant cannot be executed" in Section 82 of the Code are significant. Every person who is not immediately available cannot be characterized as an absconder. It has to be proved beyond reasonable doubt that the accused has absconded or is concealing in order to avoid execution of the warrant. The State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 10 of 14 provisions of Section 82 of the Code are mandatory and are to be construed strictly.
19. Further, unlike under the provisions of the Code, where service can be effected at the last known address, Section 82 of the Code 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 to or hides at some other place, the criteria will not be fulfilled.
20. The testimony of PW4/Process Server HC Surender Singh is of utmost significance. He deposed that on 12.02.2023, he had gone to the address of the accused, where he found that the house was locked from outside. He inquired from the neighbourhood and came to know that the house of the accused was locked for the last two years. The neighbours disclosed that accused Raj Kumar used to remain under the influence of intoxicants and his wife had sold the house to one of her relatives. Thereafter, PW4/Process Server asked for the statement but nobody tendered the same. Thus, the testimony of the process server is reflective of the fact that he could not succeed to record the statement of any of the neighbours of the locality, where the accused had resided. Further, the process server could not try to know as to whom the house of the accused had been sold. He also could not try to know the present whereabouts of the wife of the accused. Therefore, it cannot be stated conclusively that the address on State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 11 of 14 which the proclamation was done is the address on which the accused ordinarily resides.
21. The language of Section 82 of the Code 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 decisions in Pawan Kumar Gupta vs. The State of West Bengal, (1973) 1 CALLT 300 and Rohit Kumar @ Raju vs. State of NCT Delhi & BSES Rajdhani Power Limited, (2008) 63 AIC 292.
22. In view of the above, the accused is acquitted of the offence under Section 174A IPC.
Re: Offence under Section 103 DP Act
23. Section 103, DP Act is reproduced below:
103. Possession of property of which no satisfactory account can be given - Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Metropolitan Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both.
State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 12 of 14
24. Perusal of the testimony of PW1 Ct. Ravi Shekhar reveals that IO ASI Kuldeep Singh had conducted personal search of the accused on 06.12.2020 and found one mobile phone, Make Vivo (Blue in colour) from the right pocket of his pant, which was seized vide memo Ex PW1/A. The said mobile phone was stolen in the present eFIR. Further, after searching the jacket of the accused, five more mobile phones were found, having details viz. (1) Vivo Y53 - golden colour (2) Spice - colour white (3) Micromax (4) Lenovo - colour black and (5) Samsung Galaxy - golden colour. It was found that all the mobile phones were without SIM. The testimony of PW1 is duly supported with the testimony of PW3 Retired SI Kuldeep Singh (the IO).
24. No loopholes have been pointed out by the Ld. Counsel for accused in the recovery proceedings conducted by the IO. The accused has not satisfactorily accounted for all the six mobile phones, which were recovered from him. Further, all the mobile phones were without SIM and it is beyond comprehension that as to why the accused was in possession of so many mobile phones without SIM card. It is widespread that while purchasing a mobile phone, it is not equipped with a SIM and the said SIM has to be obtained from a service provider later on. The possibility of destroying the SIM cards of the recovered mobile phones and their not being switched on with new SIM cards cannot be ruled out, to enable the accused being out of the clutches of the police. Further, the accused has not claimed himself as a mobile mender, who could have possessed so many mobile phones without SIM cards.
State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 13 of 14
25. In view of the above, there is nothing on record which could discredit the testimony of the witnesses as to the offence under Section 103 of the DP Act. The prosecution is under a mandate to prove its case against the accused beyond reasonable doubts and it has established the offence punishable under Section 103 of the DP Act against the accused beyond reasonable doubts. Accordingly, the accused is convicted for the offence punishable under Section 103 DP Act.
Dictated and announced in open Court on 26.04.2024.
Digitally signed by T T PRIYADARSHINI
PRIYADARSHINI Date: 2024.05.03
16:08:14 +0530
(T. Priyadarshini)
Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 26.04.2024 State vs. Raj Kumar @ Kalu eFIR No. 50/2020, PS: INA Metro Station Page 14 of 14