Delhi District Court
State vs . Sohan @ Sonu on 28 April, 2022
1
IN THE COURT OF MS. SURBHI, METROPOLITAN MAGISTRATE-
12, SOUTH WEST, DWARKA COURTS, DELHI
State Vs. Sohan @ Sonu
FIR No. : 174/18
P.S. : Jaffarpur Kalan
U/s.: 174 A IPC
JUDGMENT
1. CR. Case. No. : 9906/2019
2. Date of Commission of Offence : 18.07.2018
3. Date of institution of the case : 16.04.2019
4. Name of the complainant : Ms. Paridhi Gupta, Ld.
MM
5. Name of the accused, parentage
& address : Sohan @ Sonu, S/o Sh.
Raj Singh, R/o VPO Ujjawa,
New Delhi.
6. Offence complained or proved : U/s 174A IPC
7. Plea of Accused : "Pleaded not Guilty"
8. Final Order : CONVICTED
9. Date of Final Order : 28.04.2022
FIR No. : 174/18 State Vs. Sohan @ Sonu Page 1 of 10 Pages
Digitally signed by
SURBHI SURBHI
Date: 2022.04.28
17:08:06 +05'30'
2
Brief Facts
1. The accused Sohan @ Sonu has been set up to face trial for the offence U/s 174 A IPC with the allegations that on 18.07.2018 a written proclamation u/sec 82 CrPC was issued in case titled as Ravinder Vs Sohan CC No.4990101/2016 by the Court of Ms. Paridhi Gupta, Ld. MM against you directing you to appear in the concerned Court on 18.07.2018 however, despite due execution of the said process you failed to appear before the said court on the said day and because of your non- compliance with the requirements of the above said proclamation you were declared as an absconder u/sec 82 CrPC on 09.10.2018 and thereby you had committed an offence punishable u/sec 174 A IPC and within my cognizance.
After the usual investigation, the charge sheet was prepared in context of the present FIR against the accused.
Pre-Trial Procedure
2. The final charge sheet for the offence U/s 174 A IPC was filed against the accused on 16.04.2019 whereupon the cognizance was taken on 16.04.2019 and provisions of Sec. 207 Cr. P.C. was complied on 16.04.2019.
After hearing arguments, the accused was charged U/s 174 A IPC on 23.09.2019 to which the said accused pleaded "Not Guilty" and instead claimed trial.
PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined 3 witnesses and the following documentary evidences.
Ex. PW1/A Report on NBWs issued against accused
Sohan @ Sonu.
Ex. PW3/1 Order declaring accused as absconder
Ex. PW3/2 Rukka
Ex. PW3/3 41A Notice to accused
4. HC Jaswant Singh PIS No. 280380292 has been examined as PW1, who deposed that on 16.07.2018, he was posted at PS J P Kalan as a Head. On that day, he received a NBWs against accused Sohan @ Sonu from the court of Ms. FIR No. : 174/18 State Vs. Sohan @ Sonu Page 2 of 10 Pages Digitally signed by SURBHI SURBHI Date: 2022.04.28 17:08:25 +05'30' 3 Paridhi Gupta, Ld. MM, Dwarka Court in CC no. 4990101/16. The NBWs marked to him by SHO. He went to the house of accused Sohan @ Sonu at village Ujjawa and there he met brother of the accused namely Darshan who told him that his brother Sohan @ Sonu had went to Rajasthan. He further deposed that he told the brother of the accused that NBWs has been issued against his brother Sohan @ Sonu upon which Darshan told him that he will narrate this fact to Sohan @ Sonu. He further deposed that he recorded his statement and IO recorded his statement u/s 161 Cr.P.C. His report in this regard is Ex.PW1/A bearing his signature at point A. He was cross-examined as nil, opportunity given.
5. HC Kanwar Pal the concerned process server has been examined as PW2 who deposed that he had received process under section 82 CrPC against the accused namely Sohan @ Sonu S/o Sh. Raj Singh R/o Village Ujwa Khushi, Ram Patti, N.D. He further deposed that on 08.09.2018 he had gone to the abovesaid address of the said accused where he met with brother of accused namely Bhai Darshan S/o Raj Singh. Upon interrogation, he revealed that accused Sohan @ sonu was not at home and he doesnot know where he went and he informed him about the proceedings of 82 CrPC to his brother and one copy of the said process was pasted on the wall of the premises of the said accused. He recorded statement of brother of accused and gathered 15-20 persons who were nearby of house of accused and he told them about the proceedings u/s 82 CrPC of accused in loud voice. Thereafter, he pasted one copy of proceedings u/s 82 CrPC of accused at notice board of Hon'ble Court.
He was cross examined asNil. Opportunity given.
6. ASI Jai Bhagwan is examined as PW-3 who deposed that on 09.10.2018, the court of Ms. Paridhi Gupta was pleased to order the registration of present case against the accused Sohan @ Sonu. He correctly identified accused Sohan @ Sonu in the court. He further deposed that he registered the said case on 13.10.2018 in CIS no. 4990101/2016 titled as Ravinder Vs. Sohan. He further deposed that the said order is Ex.PW3/1 bearing his signature and endorsement at point A and at the back of it he endorsed the order as Ex.PW3/2 bearing his signature at point A. He further FIR No. : 174/18 State Vs. Sohan @ Sonu Page 3 of 10 Pages Digitally signed by SURBHI SURBHI Date: 2022.04.28 17:08:39 +05'30' 4 deposed that he recorded the statement of HC Jaswant and HC Kunwar Pal who conducted the proceeding of 82 Cr.P.C. He further stated that HC Jaswant obtained the NBWs of the accused. He also deposed that he gave a notice u/s 41A Cr.P.C. to the accused which is Ex.PW3/3 bearing his signature at point A. He further deposed that he prepared all the documents and filed charge-sheet before this court.
He was cross-examined as nil, opportunity given.
7. It is pertinent to note that vide separate statement dated 23.09.2019 and 25.03.2022 accused has admitted the genuineness and correctness of FIR no.174/18, certificate u/s 65 B of IEA and order dated 09.10.2018 passed by the court of Ld. MM Ms Paridhi Gupta declaring him 'Absconder'.
STATEMENT OF ACCUSED
8. Prosecution Evidence was thereon closed by the Court and statement of accused was recorded u/s 313 r/w 281 Cr.P.C vide order dated 02.04.2022 in which all the incriminating evidences on record including all the depositions of PWs along with admitted documents u/s 294 of Cr.P.C were put before the accused. Wherein the accused denied all the incriminating evidence against him and stated that due to his ill health, he could not appear before the concerned court on relevant dates of hearing. He further stated that he had no knowledge qua the order being passed u/s 82 Cr.P.C. against him. He also stated that he is 10 th pass and can only read and write Hindi. He further stated that neither him nor anybody in his family read newspaper. The accused does not wish to lead DE.
ARGUMENTS
9. Despite giving opportunity, accused did not address final arguments upon which his right to address the same was closed by this court vide order dated 23.04.2022. I have gone through the documents on record, evidence and submissions forwarded by Ld. APP for the State.
FIR No. : 174/18 State Vs. Sohan @ Sonu Page 4 of 10 Pages Digitally signed by SURBHI SURBHI Date: 2022.04.28 17:08:54 +05'30' 5
10. As per the prosecution version, a written proclamation u/sec 82 CrPC was issued in case titled as Ravinder Vs. Sohan in CC no. 4990101/2016 by the Court of Ms Paridhi Gupta, Ld. MM against him directing him to appear in the concerned Court on 09.10.2018 however, despite due execution of the said process the accused failed to appear before the said court on the said day and because of his non-compliance with the requirements of the above said proclamation he was declared as an absconder u/sec 82 Cr.P.C on 09.10.2018 and hence the present case.
11. On the other hand, as per the statement of accused recorded u/s 313 r/w 281 of Cr.P.C, the defence case is that the proclamation against the accused had never been effected as the accused was unaware about the proceedings going on against him. He further submitted that dur to his ill health, he could not appear before the concerned court on the relevant dates.
12. The prosecution has examined 3 witness to prove its case. PW1 is the police official who received the NBWs against the accused, PW2 is the process Server himself and PW3 is the IO in the present case. It is pertinent to mention here that despite giving opportunity to the accused, none of the Prosecution witnesses was cross examined by the Defence.
13. The Hon'ble Supreme Court of India, in Muddasani Venkata Narasaiah v Muddasani Sarojana, held as follows:
"16. Moreover, there was no effective crossexamination made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW.1 and PW2 have not been cross examined as to factum of execution of sale deed. The crossexamination is a matter of substance not of procedure one is required to put one's own version in crossexamination of opponent. The effect of non crossexamination is that the statement of witness has not been disputed. The effect of not cross examining the witnesses has been considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR 1963 SC 1906. This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as held FIR No. : 174/18 State Vs. Sohan @ Sonu Page 5 of 10 Pages Digitally signed by SURBHI SURBHI Date: 2022.04.28 17:09:07 +05'30' 6 in M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440. In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in crossexamination of witnesses of opposite party. The rule of putting one's version in crossexamination is one of essential justice and not merely technical one. A Division Bench of Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram & Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not specifically challenged and witness is not crossexamined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to crossexamine the witness along those lines. A Division Bench of Patna High Court in Karnidan Sarda & Anr. v. Sailaja Kanta Mitra AIR 1940 Patna 683 has laid down that it cannot be too strongly emphasized that the system of administration of justice allows of crossexamination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted......"
14. PW1 in his examination in chief deposed that on 16.07.2018 when he was posted as Head Constable in the concerned PS, he was marked execution of NBWs against the accused by the SHO concerned upon which he reached the address of the accused where he found his brother Darshan who told him that the accused has gone to state of Rajasthan for some work after which he recorded the statement of his brother and returned the NBWs to the concerned court with the report Ex. PW1/A. PW2 is the process server himself, who deposed that he had received the process u/s 82 Cr.P.C issued against the accused Sohan @ Sonu and on 08.09.2018, he went to the address of the accused where he met with his brother who informed him that the accused is not at home and that he is not aware of his whereabouts after which PW2 informed the brother of the accused qua the proceedings u/s 82 Cr.P.C and one copy of the process was pasted on the wall of the premise while one copy is pasted at the notice board of the concerned Court. The PW2 also gathered around 15-20 people from the neighborhood and told them about the 82 proceedings against the accused in a loud voice. Despite the same, the accused did not appear on the date fixed i.e., 09/10.2018 after which he was declared as 'Absconder'. PW3 is a formal witness who only proved the registration of the FIR No. : 174/18 State Vs. Sohan @ Sonu Page 6 of 10 Pages Digitally signed by SURBHI SURBHI Date: 2022.04.28 17:09:20 +05'30' 7 present F.I.R under section 174A of IPC and that he recorded the statement of the warrant server and Process Server concerned after which he served a notice u/s 41A Cr.P.C. to the accused and filed the charge-sheet. He was not cross examined by the Ld. Defence Counsel despite giving opportunity. As far as the testimony of PW3 is concerned, he proved the order passed by the Ld. MM Ms Paridhi Gupta declaring the present accused as Absconder and also collected the certified copies of relevant orders in the in CC no. 4990101/2016 titled as Ravinder Vs. Sohan.
15. Section 174 A IPC says, "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 offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
16. The relevant portion of section 82 of Cr.P.C further says, " Proclamation for person absconding-(1) If any Court has 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.
(2) The proclamation shall be published 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.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner FIR No. : 174/18 State Vs. Sohan @ Sonu Page 7 of 10 Pages Digitally signed SURBHI by SURBHI Date: 2022.04.28 17:09:33 +05'30' 8 specified in clause (i) of sub- section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day".
17. After going through the case file and hearing the learned APP for the State, this Court has reached to the conclusion that the prosecution has duly proved its case against the accused for commission of the offence punishable under Section 174-A of Indian Penal Code on the following grounds:
➢ (i) Declaring the accused as proclaimed person by the concerned Ld. MM proves the satisfaction of the concerned court that the accused has been avoiding service or concealing himself deliberately and also that the proceedings under section 82 has been satisfactorily been carried out. As per Section 82(3) of the Cr.P.C, the satisfaction of the concerned court is the conclusive evidence that the requirements of this section have been complied with and that the proclamation is published on such date, however, the accused never challenged the order dt. 09.10.2018 declaring him as an absconder by the concerned court.
➢ (ii) The Hon'ble Delhi high court in the case of Maneesh Goomer V the state held as follows:-
"10. .............The abovementioned FIR for offence punishable under Section 174-A IPC is an independent cause of action and merely because the complaint case under Section 138 NI Act is settled, there is no reason that the abovementioned FIR be also quashed."
As per the above judgment, the Hon'ble Delhi High court clearly held that of- fence u/s 174 A is an independent offence and has nothing to do with the out- come of the offence in which the accused was declared absconder.
➢ (iii) The Prosecution brought on record the certified copy of the order dated 09.10.2018 declaring the accused absconder and also certified copy of proceedings of case titled as Ravinder Vs. Sohan in CC No. 4990101/2016 Ex PW3/1 which duly proved that such case was pending before the concerned court and that on non-appearance of the accused, proclamation u/s 82 CrPC was issued against the accused. Moreover, accused also in the present matter is not disputing his identity or that the order dated 09.10.2018 declaring him an absconder was in fact passed.
➢ (iv) It is also pertinent to mention here that in the present matter it is for the accused to prove whether abscondance was bonafide or that due FIR No. : 174/18 State Vs. Sohan @ Sonu Page 8 of 10 Pages Digitally signed by SURBHI SURBHI Date: 2022.04.28 17:09:51 +05'30' 9 process was not followed or adhered to by the Trial Court before declaring him Proclaimed person, however, the accused has never challenged the proceedings u/s 82 Cr.P.C or the order dt. 09.10.2018 declaring him proclaimed person at the relevant point of time.
➢ (v) The accused stated in his statement recorded u/s 313 r/w 281 Cr.P.C that he was not aware about the proceedings u/s 82 Cr.P.C, however despite the same, when he got aware about the said proceedings, he did not take any steps to challenge those proceedings. The right course for accused was to go against the order dated 09.10.2018 declaring the accused proclaimed person, however he did not do so and no reason is forthcoming for failure of accused to challenge the said proceedings.
18. I also find no force in the plea of the accused that at the relevant point of time he was not well and therefore he could not appear before the court on the date fixed for his appearance. It is also his case that he was not informed by his family members that any summon was received on behalf of him by them. Apparently, no evidence has been led by him to prove his statement. No medical documents, if any was brought on record by the accused to prove that at the relevant point of time, he was not well or that he was not informed by his family members about the summons. In fact, no defence evidence whatsoever has been led by the accused to prove his innocence.
19. In other words, the accused lead no evidence whatsoever on record to disprove the case of the Prosecution that he failed to appear before the court on the specified time. Rather, from the testimony of PW 1 and PW2 along with the documentary proofs taken together, it has been borne out that the accused failed to appear before the court after issuance of process under Section 82 Cr.PC against him and thereby committed offence punishable under Section 174A IPC and is accordingly convicted for the said offence.
20. On the basis of the aforesaid discussion, this court is of the view that prosecution has duly proved its case against the accused for the commission of FIR No. : 174/18 State Vs. Sohan @ Sonu Page 9 of 10 Pages Digitally signed by SURBHI SURBHI Date: 2022.04.28 17:10:03 +05'30' 10 offence punishable under Section 174-A of Indian Penal Code and he is held guilty and convicted thereunder.
Conclusion
21. The prosecution has proved the present case beyond reasonable doubt and therefore, the accused is convicted u/s 174A IPC.
22. Copy of the judgment be given to the convict free of cost. Let the convict be heard on the quantum of sentence.
SURBHI
Digitally signed by SURBHI
Date: 2022.04.28 17:10:15
+05'30'
Announced in the open court
on 28th April 2022 (SURBHI)
M.M.12/SWD/DWARKA COURTS
DELHI
FIR No. : 174/18 State Vs. Sohan @ Sonu Page 10 of 10 Pages