Delhi District Court
State vs . Sunita on 11 May, 2023
IN THE COURT OF MS. T. PRIYADARSHINI ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 5502/2022
STATE Vs. SUNITA
State vs. Sunita
FIR No. 71/2020
Police Station : Saket
Under Section : 174A IPC
Date of institution : 23.08.2022
Date of reserving : 11.05.2023
Date of pronouncement : 11.05.2023
JUDGMENT
a) Serial number of the case : 5502/2022
b) Date of commission of : 13.02.2020
offence
c) Name of the complainant : HC Yashvir
d) Name, parentage and address : Sunita W/o Sh. Ashok Kumar
of the accused R/o H.No. 9/261, DDA Flats,
Kalkaji, New Delhi.
e) Offence complained of : 174A IPC
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Acquittal
h) Date of final order : 11.05.2023
State vs. Sunita FIR No. 739/2018, PS: Saket Page 1 of 8
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. In the present case, the FIR was registered under Section 174A of the Indian Penal Code, 1860 (hereinafter "the IPC"), pursuant to the order dated 13.02.2020 passed by the then Ld. MM- 01, South, NI Act, Saket in CC No. 474813 of 2016. Presence of the accused was required by the court in a complaint case bearing No. 474813/2016, titled Rajeev Ranjan vs. Sunita, PS Saket, New Delhi. The then Ld. MM had issued a process under Section 82 of the Code of Criminal Procedure, 1973 (hereinafter "the Code") in the above said case which was executed on 19.10.2019 at the address of the accused i.e. H.No. 261/9, Block-9, DDA Flats, Kalkaji, New Delhi-19. However, the accused failed to appear before the said court and vide order dated 13.02.2020, the present FIR was directed to be registered under Section 174A of the IPC. The accused surrendered on 29.11.2021 and was taken into custody. Consequently, the instant chargesheet against the accused under Section 174A of the IPC has been filed.
CHARGE
2. Vide order dated 10.01.2023, charge was framed for the offence punishable under Section 174A of the IPC against the accused, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
3. Vide order dated 10.01.2023, in compliance to the provisions of Section 294 of the Code, the accused was called upon to admit or deny the genuineness of i) Endorsement by DO; ii) The present State vs. Sunita FIR No. 739/2018, PS: Saket Page 2 of 8 FIR; iii) Certificate under Section 65B Indian Evidence Act regarding the present FIR and iv) Ahlmad of court no. 611 along with original file of CC No. 474813/2016 Rajeev Ranjan Vs. Sunita vide Ex A-1 to A-4.
PROSECUTION EVIDENCE
4. Prosecution has examined three witnesses i.e. PW1 ASI Murari Lal, PW2 HC Yashveer and PW3 HC Basant Kumar [the investigating officer (IO)].
5. PW1 ASI Murari Lal is the process server, who executed the process under Section 82 of the Code against the accused for her appearance before the court. He deposed that on 19.10.2019, he had approached the address of the accused i.e. H. No. 261/9, DDA Flats, Kalkaji, New Delhi for execution of the said process where accused was not found. However, he met one person namely Ragini (sister-in-law of accused) there who disclosed him that the accused was not there. Thereafter, in the presence of Ragini, PW1 gathered public and read the proclamation under Section 82 of the Code in a loud voice and pasted it on the doors/place for its easy exhibition to the public persons. PW1 also pasted a copy of the proclamation on the notice board of the court. Finally, on 13.02.2020, the statement of PW1 was recorded as to the execution of the said process. The witness was duly cross-examined.
6. PW2 is HC Yashveer, who was posted as Head Constable/Naib Court in the concerned Court of PS Saket on 13.02.2020. On that day, on the directions, PW2 had handed over the order dated 13.02.2020, passed by the aforesaid court, to the Duty Officer, PS Saket for registration of the present FIR. The State vs. Sunita FIR No. 739/2018, PS: Saket Page 3 of 8 witness was duly cross-examined.
7. PW3 HC Basant Kumar is the IO of this case, who deposed that on 29.11.2021, the investigation of the present case was assigned to him. The accused surrendered before the court of Ms. Ayushi Saxena, Ld. MM, Saket and the court further sent her to JC. Thereafter, PW3 moved an application for interrogation and formal arrest of accused which was allowed and after interrogation, he arrested the accused in the presence of W/Ct. Galla. Thereafter, accused was produced before this court. He placed on record the certified copy of the same. Thereafter, he recorded statement of W/Ct. Galla under Section 161 of the Code. After completion of the investigation, IO/PW3 prepared the charge sheet and filed it before the court. The witness correctly identified the accused. The witness was duly cross-examined.
STATEMENT / DEFENCE OF THE ACCUSED
8. In her statement recorded under Section 313 of the Code, the accused denied the entire evidence against her. Whilst the accused admitted that she has been residing on the address mentioned in the process issued under Section 82 of the Code since the last 34 years, she denied that any affixation had been done by the process server for her presence before the Court. She stated that she is innocent and a false case has been registered against her. Accused did not lead evidence in her defence.
ANALYSIS AND FINDINGS
9. 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 ?State vs. Sunita FIR No. 739/2018, PS: Saket Page 4 of 8
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?
10. It is an admitted position that the accused failed to appear before the court on the date and time fixed and mentioned in the notice of proclamation. However, can her absence be termed as absence without any just or lawful excuse? Further, was the proclamation duly executed?
11. 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.
12. Under Section 82 of the Code, publication by all three modes essential namely (i) public reading in some conspicuous place of the town/village in such person ordinarily resides; (ii) affixation at some conspicuous part of the house or homestead and (iii) affixation at some conspicuous part of the court house are mandatory under Section 82(2) of the Code. The failure to comply with all the three modes of publication is to be considered invalid publication, according to law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.
State vs. Sunita FIR No. 739/2018, PS: Saket Page 5 of 813. Whilst the provision under section 82 of the Code is procedural in nature, Section 174A of 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, such a mandate does not translate into unequivocal conviction under Section 174A, IPC. If this construction were to be accepted, every allegation under Section 174A 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 require 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.
14. 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 characterised 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 provisions of Section 82 are mandatory and are to be construed strictly.
15. The accused in her defence has admitted that she was residing on the address on which the proclamation was executed in the year 2019 and has also stated that she is a resident of the said address since last 34 years. However, she has denied intimation State vs. Sunita FIR No. 739/2018, PS: Saket Page 6 of 8 w.r.t. affixation of notice and has averred that she is falsely implicated in present case. She has also stated that she was unaware of the processes which were issued to her in the instant FIR. In such a scenario, it was imperative for the prosecution to paste photographs of the affixation done outside her address and the court notice board. The process server also should have recorded statements of neighbours who could have deposed that the accused resides in this address in a routine manner. The procedural non- compliances affect the case of the prosecution. It cannot be said that the accused was concealing or absconding especially in light of her submission that she is prosecuting other matters filed by and against her diligently.
16. There is yet another aspect. The statement of the process server does not mention about any photograph taken after affixing the process at the alleged residence of the accused or at the court premises. Thus, the DD entry of departure and arrival assumes significance. However, no departure or arrival entries of the process server have been filed, let alone being proved. In fact, no explanation has been forthcoming for this failure. Moreover, there are several contradictions in the testimony of the process server regarding the manner of execution of process. He has denied recording the written statement of Ragini or the neighbours. He has neither placed on record the photographs of the affixation actioned outside the house or on the notice board of the court. Further, neither Ragini or any public person has been mentioned as a witness in the chargesheet. This undoubtedly hampers the case of the prosecution as the aforesaid factors raise a serious doubt that the process was ever put on some conspicuous place of the aforesaid State vs. Sunita FIR No. 739/2018, PS: Saket Page 7 of 8 address or the court house.
17. 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 decision 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.
18. In view of the above, the accused is acquitted for the offence under Section 174A of the IPC.
19. In compliance to Section 437A of the Code, the accused has furnished bail bond and surety bond.
20. File be consigned to Record Room.
Dictated and announced in open Court on 11.05.2023.
Digitally signed by T. T. PRIYADARSHINI
PRIYADARSHINI Date:
2023.05.12
15:06:08 +0530
(T. Priyadarshini)
Additional Chief Metropolitan Magistrate
South District, Saket Courts, New Delhi
11.05.2023
State vs. Sunita FIR No. 739/2018, PS: Saket Page 8 of 8