Delhi District Court
State vs . Mohd. Saqib on 25 April, 2013
In the Court of Sh. Arvind Bansal
Metropolitan Magistrate - 04 (Central)
Tis Hazari Courts, Delhi
JUDGMENT
FIR No. 112/10 U/s 379/174 A IPC PS NDRS State vs. Mohd. Saqib A Sl. No. of the case 02401 R 0617782010 B Date of institution 24/06/2010 C Date of commission of 30/10/2012 offence u/s 174A IPC D Name of the complainant ASI Dharmvir through State E Name of the accused & Mohd. Saqib s/o Mohd. Bilal r/o Bittoo ka his parentage and address Makan, Chamde Wali Gali, Motia Khan, Paharganj, Delhi.
F Offence complained of U/s 174 A IPC G Plea of the accused Pleaded not guilty H Order Reserved on Not reserved I Final order Convicted u/s 174A IPC J Date of such order 25/04/2013
Brief Statement of reasons for decision of the case:
1. Before proceeding with the facts giving rise to the offence u/s 174A IPC against the present accused, it is imperative to briefly state the facts which led to the initiation of the criminal proceedings and registration of FIR u/s 379/411 IPC against the accused.
FIR No. 112/10, PS NDRS State vs. Mohd. Saqib Page No. 1 of 6 It was the allegation of the prosecution against the accused that on 03.05.2010 at about 2.30 pm at Platform No. 12 / 13, NDRS within the jurisdiction of PS New Delhi Railway Station, the accused dishonestly removed the suitcase of the complainant Govardhan Manji out of his possession without his consent and thereby committed the offence of theft punishable u/s 379 IPC.
The Court proceeded against the accused after taking cognizance of the offence on the facts alleged in the charge sheet filed by the IO. After due compliance of S. 207 CrPC and hearing the parties, the accused was charged for the offence punishable u/s 379 IPC.
2. The accused stopped appearing before the Court after framing of charge and the Court after necessary observations, ordered the issuance of process u/s 82 CrPC against the accused.
The accused Mohd. Saqib failed to appear before the Court despite publication of a declaration U/s 82 (1) Cr.P.C. and was thus, declared ABSCONDING vide order dated 30/10/2012. The accused by his non appearance before the Court despite publication of a declaration u/s 82 CrPC, committed an offence U/s 174 A IPC. Later, on 10/12/2012, at St. Stephen Hospital, Tis Hazari, Delhi, accused Mohd. Saqib was apprehended by the police as he had been declared ABSCONDING vide order dated 30/10/2012 of the Court in case FIR no. 112/10, PS NDRS, U/s 379/411 IPC and was produced before the Court in compliance of statutory requirements. Finally, after completing the necessary formalities of investigation, IO filed the supplementary charge sheet in the Court against the accused for the offence punishable u/s 174 A IPC.
FIR No. 112/10, PS NDRS State vs. Mohd. Saqib Page No. 2 of 6
3. The Court took cognizance of the offence on the allegations in the supplementary charge sheet and proceeded against the accused. The copy of supplementary challan and annexed documents were supplied to accused on appearance. After hearing both the parties, Charge for the offence punishable u/s 174 A IPC was framed against the accused to which he pleaded not guilty and claimed trial.
It is observed that since accused had already been charged for the offence u/s 379 IPC before being declared ABSCONDING, Court ordered the issuance of summons to the complainant / victim for his examination before the Court. The complainant appeared and compounded the offence u/s 379 IPC with the accused before Mediation Centre and consequently, the accused was ordered to be acquitted of the offence u/s 379 IPC vide order dated 08.02.2013. The Court, however, proceeded to record evidence for the offence u/s 174A IPC.
4. In order to substantiate and prove its case, prosecution examined three witnesses.
PW1 ASI Dharamvir testified that on 10/12/12, he was on Proclaimed Offender search duty. At about 4 pm, when he along with Constable Yashpal and Constable Anuj were present at ISBT, Kashmere Gate, one secret information was received that one person namely Saqib who was ABSCONDING in case pertaining to Police Station New Delhi Railway Station, was standing near St. Stephen Hospital. He deposed that he along with staff and informer reached St. Stephen Hospital and at the instance of informer, apprehended the accused who revealed his name as Saqib. He deposed that they checked the PO list and found that accused was declared ABSCONDING in case FIR No. 112/10, PS NDRS, U/s 379/411 IPC. He FIR No. 112/10, PS NDRS State vs. Mohd. Saqib Page No. 3 of 6 deposed that he prepared Kalandra u/s 41(1)(c) CrPC Ex. PW1/A and after medical examination, accused kept in lock up. Arrest memo of accused is Ex. PW1/C and personal search memo is Ex. PW1/D. He deposed that he made DD entry Ex. PW1/B to this effect. He deposed that on the next day, accused was produced before the concerned Court from where he was sent to JC.
The witness was duly cross examined by Ld. Legal Aid Counsel for the accused.
PW2 Constable Yaspal & PW3 Constable Anuj reiterated the assertions made by PW1 ASI Dharmvir. The witnesses were also examined by Ld. Legal Aid Counsel for the accused.
5. In his statement recorded U/s 313 Cr.P.C., accused denied all the incriminating evidence against him and pleaded innocence. However, no witness was examined by the accused in his defence.
6. Ld. APP for the State and the Legal Aid Counsel for accused heard. Judicial record carefully perused.
Appreciation of Evidence :
7. To establish the offence u/s 174 A IPC beyond reasonable doubt, the prosecution is required to prove the following ingredients:
(A) that a proclamation U/s 82 (1) Cr.P.C. was issued against the accused by the Court.
(B) that the accused failed to appear at the specified place and time as required by the proclamation.
FIR No. 112/10, PS NDRS State vs. Mohd. Saqib Page No. 4 of 6
8. The Court shall scrutinize the entire evidence on record to appreciate whether the prosecution has succeeded to prove the ingredients of offence 'beyond reasonable doubt' or the accused succeeded to raise reasonable doubt in the version of prosecution on the standard of preponderance of probabilities.
9. The first ingredient of the offence i.e. the publication of a proclamation against the accused stands proved from the order dated 30/10/2012 of this Court. The statement of process server HC Narender Singh who had executed the process against the accused has also been perused. The process was issued against the accused U/s 82 (1) Cr.P.C. and he was declared ABSCONDING accordingly.
As per the proclamation published against the accused, he had to appear before the Court on 30/10/2012 at 10 AM but he failed to appear despite the publication of the proclamation and hence, was declared ABSCONDING.
The proceedings carried out by the police officials on 10/12/2012 i.e. the arrest of the accused is a subsequent development which does not affect the factum of issuance of proclamation and the non appearance of the accused thereupon. The defence of the accused that he was not arrested from the railway station but was lifted from somewhere else does not dent the conclusive evidence that he had failed to appear after declaration of a proclamation.
The accused has failed to accord any reasonable ground for his non appearance before the Court as required by the declaration U/s 82 (1) Cr.P.C. and thus, has failed to raise any defence on the standard of preponderance of probabilities. Even otherwise, S. 174A IPC does not create or provide any FIR No. 112/10, PS NDRS State vs. Mohd. Saqib Page No. 5 of 6 defence or exception to the accused which he could use to his benefit.
10. In view of the aforesaid discussion, Court is of the considered opinion that prosecution has proved its case against the accused beyond reasonable doubt and hence, accused Mohd. Saqib is hereby convicted of the offence u/s 174A IPC.
Dictated & announced in the open Court on April 25, 2013 (ARVIND BANSAL) Metropolitan Magistrate(Central)-04 Tis Hazari Courts, Delhi FIR No. 112/10, PS NDRS State vs. Mohd. Saqib Page No. 6 of 6