Delhi District Court
State vs Salim Ahmad on 30 May, 2024
Page 1 of 9
IN THE COURT OF ASHISH KUMAR MEENA
MM-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.:459/23
PS: FATEHPUR BERI
U/S: 174A IPC
CR. CASE NO. 6655/2023
STATE
VS.
SALEEM AHMAD
S/o SH. BAKTTAWAR KHAN
R/O FLAT NO.04, PAWAN BANSAL BUILDING
ASOLA, FATHEPUR BERI, NEW DELHI ......ACCUSED
1. Sl. No. of the case : 6655/2024
2. The date of offence : 15.07.2023
3. The plea of the accused : Pleaded not guilty
4. Argument heard on : 16.05.2024
5. The date of order : 30.05.2024
6. The final order : CONVICTED
JUDGMENT
1. Briefly stated, accused Saleem Ahmad ("Accused") is facing trial for the allegations that he was facing trial in case FIR No. 239/2017 PS Fatehpur Beri. However, he did not appear before the concerned Court despite proper service. Accordingly, proceeding under section 82 (1) Cr.P.C were initiated against the ASHISH Digitally signed by ASHISH FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad KUMAR KUMAR MEENA Date: 2024.05.30 MEENA 16:53:16 +05'30' Page 2 of 9 present accused. The accused failed to appear before the Court of Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi as specified in proclamation published under Section 82(1) Cr.P.C. Thus, accused, in terms of report u/s 82 Cr.P.C, was declared as proclaimed person vide order dated 15.07.2023, passed by Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi in case FIR No. 239/2017 PS Fatehpur Beri. Concerned Ld. MM also gave the directions to the concerned SHO to register the case under section 174A IPC. In compliance of the said order, concerned SHO registered the present FIR No. 459/2023 u/s 174A IPC.
2. Thereafter, the accused was arrested by HC Sumer Singh PS Fatehpur Beri in compliance of the order dated 15.07.2023. The accused was produced before the Ld. Predecessor of this Court on 03.10.2023 after fresh arrest and accused was remanded to judicial custody. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 174A of the IPC and accordingly, the charge was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined three witnesses. PW-1 SI Rakesh has deposed that on 02.10.2023, he alongwith HC Sumer Singh and other staff went to PS- Lohiya Nagar, Dist- Merut, UP in search of accused Salim Ahmed with the permission of his senior officer. At there, they informed to the PS- Lohiya Nagar and they took police officials from PS- Lohiya Nagar and went to Vill-Gausipur. At there, they were searching for accused, by taking the help of technical ASHISH Digitally signed by ASHISH FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad KUMAR KUMAR MEENA Date: 2024.05.30 MEENA 16:53:23 +05'30' Page 3 of 9 surveillance and secret informer. They intercept the accused and apprehended him near a Dhaba which was situated beside the road. Many known persons of accused were there, so they brought the accused to PS-Fatehpur Beri and informed about the same to local police station. IO/HC Sumer inquired from the accused and thereafter he arrested the accused Salim vide arrest memo Ex.PW1/A. Personal search of accused was also conducted and one mobile phone make Vivo and one Aadhar Card were found in possession of accused. Personal search memo is Ex.PW1/B. IO recorded the disclosure statement of accused vide Ex.PW1/C. Case property was deposited in Malkhana, PS-Fatehpur Beri. IO had recorded his statement u/s 161 Cr.P.C.
4. PW-2 HC Sumer Singh deposed that as per order dated 15.07.2023 and the present matter was marked to him by SHO concerned regarding investigation of proclaimed person. Thereafter, he endorsed the same on 17.09.2023 and got the FIR registered through Duty Officer of PS-Fatehpur Beri vide Ex.PW2/A. On 02.10.2023, he alongwith SI Rakesh Kumar and other staff went to PS- Lohiya Nagar, Dist- Merut, UP in search of accused Salim Ahmed with the permission of our senior officers. At there, they informed to the PS- Lohiya Nagar and they took police officials from PS- Lohiya Nagar and went to Vill-Gausipur. At there, they were searching for accused, by taking the help of technical surveillance and secret informer. They intercept the accused and apprehended him near a Dhaba which was situated beside the road. Many known persons of accused were there, so they brought the accused to PS-Fatehpur Beri and informed about the same to local police station. He inquired from the accused and thereafter he arrested the accused Salim vide arrest memo already ASHISH Digitally signed by ASHISH KUMAR FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad KUMAR MEENA Date: 2024.05.30 MEENA 16:53:31 +05'30' Page 4 of 9 Ex.PW1/A, bearing my signature at point "B". Personal search of accused was also conducted and one mobile phone make Vivo and one Aadhar Card were found in possession of accused. Personal search of accused was conducted vide memo Ex.PW1/B. He recorded the disclosure statement of accused vide memo Ex.PW1/C. He deposited the case property in Malkhana, PS- Fatehpur Beri. He recorded the statement of witnesses u/s 161 Cr.P.C. On 03.10.2023, accused was produced before the Ld. Predecessor of this Court and he was sent to judicial custody from the court. He completed the investigation and filed the charge- sheet before the court against the accused Salim Ahmed u/s 174A IPC.
5. It is pertinent to mention that the accused has also admitted the genuineness of these following documents u/s 294 Cr.P.C, without admitting the content of the same:
a. Present FIR No. 342/2023 PS Fatehpur Beri alongwith certificate u/s 65 B IEA.
b. Order dated 15.07.2023 passed by Ld. Predecessor of this Court in case FIR No. 239/2017 PS Fatehpur Beri.
6. On completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused did not wish to lead defence evidence.
7. Final arguments heard. Case file perused.
ASHISH Digitally signed
by ASHISH
FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad KUMAR KUMAR MEENA
Date: 2024.05.30
MEENA 16:53:38 +05'30'
Page 5 of 9
8. Short point for determination before this court is as under:
'' The accused was facing trial in case FIR No. 459/2023 PS Fatehpur Beri. However, he did not appear before the concerned despite proper service. Accordingly, proceeding under section 82 Cr.P.C were initiated against the present accused. Further, the accused failed to appear before the Court of Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi as specified in proclamation published under Section 82(1) Cr.P.C. Thus, accused, in terms of report u/s 82 Cr.P.C, was declared as proclaimed person vide order dated 15.07.2023, passed by Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi in case FIR No. 239/2017 PS Fatehpur Beri. Thereby the accused has committed the offence under Section 174A IPC''
9. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
10. It is argued by the Ld. Counsel for the accused has submitted that accused was never served with the proper service in case FIR No. 239/2017 PS Fatehpur Beri. It is submitted that the process server visited the incorrect/earlier address. Thus, the proceedings issued u/s 82 Cr.P.C are defective. Hence, no offence under section 174A IPC is made out against the accused. Ld. Counsel has FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2024.05.30 MEENA 16:53:45 +05'30' Page 6 of 9 submitted that the accused be acquitted from all the charges.
11. In the present case accused is charged under Section 174A IPC. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act:
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 person, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
12. 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 person, when he fails to appear, the punishment provided is imprisonment upto seven years and payment of fine. Thus, Section 174A IPC penalizes the non-
FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad ASHISH Digitally
by ASHISH
signed
KUMAR KUMAR MEENA
Date: 2024.05.30
MEENA 16:53:53 +05'30'
Page 7 of 9
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, 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.
13. Admittedly, the accused Saleem Ahmed was and currently is facing trial in case FIR No. 239/2017 IPC PS Fatehpur Beri. On receipt of charge-sheet of FIR No. 239/2017, the process was issued qua accused for securing his presence. However, the accused did not join the proceedings despite being properly served. Thus, Ld. Predecessor of this Court issued a process under Section 82(1) Cr.P.C for securing his presence appear before the concerned Court. The accused did not pay heed to the directions of the concerned Court and failed to appear before the Court on specified date and time. Thus, accused, in terms of report u/s 82 (1) Cr.P.C, was declared as proclaimed person vide order dated 15.07.2023, FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad ASHISH Digitally by ASHISH signed KUMAR Date: 2024.05.30 KUMAR MEENA MEENA 16:54:01 +05'30' Page 8 of 9 passed by Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi in case FIR No. 239/2017 PS Fatehpur Beri.
14. The accused has admitted that the he is facing the trial in FIR No. 239/2017 PS Fatehpur Beri. The accused has admitted that he is aware of the fact regarding issuance of process under section 82 (1) Cr.P.C. He has also admitted that Ld. Predecessor of this Court has passed an order dated 15.07.2023, thereby declaring him as Proclaimed Person. Further, arrest in present case FIR No. 459/2023 PS Fatehpur Beri is also not in dispute. It is to be noted that the process was issued on the same address as stated by the accused before this Court. Moreover, the Ld. Predecessor of this Court was also satisfied with the report of process server of the proceeding under Section 82(1) Cr.P.C. It is further to be noted accused has failed to bring anything on record to show that the process issued prior to order dated 15.07.2023 were defective. The PW-1/IO of this case has also proved the allegations. There is nothing on record which supports the case of defence. The accused has failed to impeach the shake the confidence of prosecution during cross-examination. Testimony of all prosecution witnesses has remained intact and duly supported by the documentary evidence. Thus, the process issue qua accused under section 82(1) Cr.P.C were duly executed against the accused as per procedure laid down, despite that the accused failed to appear before the concerned Court.
15. Thus, in the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 174A IPC against the accused Saleem Ahmad beyond reasonable doubts. Accordingly, accused Digitally signed ASHISH byKUMAR ASHISH MEENA FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad KUMAR Date:
2024.05.30 MEENA 16:54:10 +05'30' Page 9 of 9 SALEEM AHMAD is hereby convicted for the offence u/s 174A IPC.
16. Let the copy of judgment be given free of cost to the convict.
17. Let the convict be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 30.05.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO NINE PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
Digitally signed by
ASHISH KUMAR ASHISH KUMAR MEENA
MEENA Date: 2024.05.30 16:54:17
+05'30'
(ASHISH KUMAR MEENA)
MM-01/SAKET COURT(SOUTH),
NEW DELHI, 30.05.2024
FIR No:459/2023 PS: Fatehpur Beri State Vs. Saleem Ahmad