Delhi District Court
State vs . Simran @ Neena on 15 December, 2022
IN THE COURT OF MS. T. PRIYADARSHINI ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 3849/2019
STATE Vs. SIMRAN @ NEENA
State vs. Simran @ Neena
FIR No. 739/2018
Police Station : Saket
Under Section : 174A IPC
Date of institution : 03.08.2019
Date of reserving : 10.11.2022
Date of pronouncement : 15.12.2022
JUDGMENT
a) Serial number of the case : 3849/2019
b) Date of commission of : 05.12.2018
offence
c) Name of the complainant : HC Ashok Kumar
d) Name, parentage and address : Simran @ Neena W/o Sh. Jeet
of the accused Singh R/o E-39, 204, Jain
Colony, Part 1, Uttam Nagar,
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 : 15.12.2022
State vs. Simran @ Neena
FIR No. 739/2018, PS: Saket Page 1 of 9
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 05.12.2018 passed by the Ld. Predecessor Judge. Presence of the accused was required by the court in a complaint case bearing No. 474240/2016, titled Jyoti @ Amita vs. Simran, PS Ambedkar Nagar, New Delhi. The Ld. Predecessor had issued a process under Section 82 of the Code of Criminal Procedure, 1973 (hereinafter "the Code") in the above said case returnable for 11.09.2018 against the accused. The said process was apparently executed on 11.09.2018 at both the addresses of the accused i.e. H. No. E-39/204, Jain Colony, Part-I, Matiala, Uttam Nagar, New Delhi and H. No. 24/1, Jogiwala Mohallah, Palam Colony, New Delhi. However, the accused failed to appear before this court and vide order dated 05.12.2018, the present FIR was directed to be registered under Section 174A of the IPC.
CHARGE
2. Vide order dated 27.01.2020, 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 27.01.2020, in compliance to the provisions State vs. Simran @ Neena FIR No. 739/2018, PS: Saket Page 2 of 9 of Section 294 of the Code, the accused was called upon to admit or deny the genuineness of i) The present FIR; ii) Certificate under Section 65B Indian Evidence Act regarding the present FIR; iii) Certified P.O. Order dated 05.12.2018 of Sh. Sandeep Garg, Ld. ACMM (South), Saket, New Delhi; iv) Rukka; v) DD No. 37A dated 05.12.2018; vi) Memo of Parties filed in complaint case titled Smt. Jyoti @ Amita vs. Smt. Simran; vii) Kalandara u/s 41(1)(C);
viii) DD No. 29B dated 27.04.2019; ix) Arrest and personal search memos (respectively) of the accused, both dated 27.04.2019; x) DD No. 32B dated 27.04.2019; and xi) Arrest and personal search memos (respectively) of the accused, both dated 29.04.2019 vide Ex A-1 to A-13.
PROSECUTION EVIDENCE
4. Prosecution has examined three witnesses i.e. PW1 HC Mahesh [the investigating officer (IO)], PW2 ASI Ram Chander and PW3 HC Ashok Kumar.
5. PW1 HC Mahesh is the IO of this case, who deposed that on 05.12.2018, the investigation of the present case was assigned to him. During the course of investigation, PW1 obtained certified copy of the judgment and other documents related to criminal complaint No. 474240/16, Ex A-4 (Colly.). On 24.04.2019, PW1 received an information from PS Lajpat Nagar vide DD No. 32B as to the arrest of accused Simran @ Neena. Pursuant to this information, on 27.04.2019, PW1 went to PS Lajpat Nagar, where he obtained photocopy of the Kalandara vide DD No. 29B. On 29.04.2019, PW1 moved an application before Saket Court for State vs. Simran @ Neena FIR No. 739/2018, PS: Saket Page 3 of 9 interrogation and arrest of accused Simran, which was allowed. Thereafter, PW1 arrested accused Simran, conducted her personal search and recorded her disclosure statement. After completion of the investigation, IO/PW1 prepared the charge sheet and filed it before the court. The witness correctly identified the accused. The witness was duly cross-examined.
6. PW2 ASI Ram Chander 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 11.09.2018, he had approached both the address of the accused i.e. H. No. E- 39/204, Jain Colony, Matiala, Uttam Nagar, New Delhi and H. No. 24/1, Jogiwala Mohallah, Palam Colony, New Delhi for execution of the said process. However, the accused could not be found at her both addresses. Thereafter, PW2 had 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. PW2 also pasted a copy of the proclamation on the notice board of the court. Finally, on 05.12.2018, the statement of PW2 was recorded as to the execution of the said process. The witness was duly cross- examined.
7. PW3 is HC Ashok Kumar, who was posted as Head Constable/Naib Court in the Court of Sh. Sandeep Garg, Ld. ACMM, South, New Delhi on 05.12.2018. On that day, on the direction of the Ld. ACMM, South, Saket, New Delhi, PW3 had handed over the order dated 05.12.2018 (Ex A-3), passed by the aforesaid court, to the Duty Officer, PS Saket for registration of the present FIR. The witness was duly cross-examined.
State vs. Simran @ Neena FIR No. 739/2018, PS: Saket Page 4 of 9 STATEMENT / DEFENCE OF THE ACCUSED
8. In her statement recorded under Section 313 of the Code, the accused denied the entire evidence against her. She stated that she is innocent and a false case has been registered against her. Accused chose to lead evidence in her defence. She also stated that she never received in any summons in CC No. 474240/2016 as her address has been mentioned wrongly in the complaint. She also alleged that the process of law has been misused by stating her wrong address.
9. The accused examined herself as DW1. In her defence evidence, she stated that there are several disputes pending between her and her husband. She further stated that there are about 7-8 cases pending between her and her in-laws and her brother-in-law (jeth), namely, Sh. N.S. Bhatt is a lawyer and he is one of the accused in one of the FIRs. DW1 further stated that her aforesaid brother-in-law intentionally did not get the summons served to her. On 05.11.2022, the accused was allowed to be examined again as DW1 on an application moved under Section 311 of the Code, wherein she admitted to have received several summons of the courts at her parental address.
10. I have heard the Ld. APP for State and Ld. Counsel for the accused and perused the record carefully in light of the arguments advanced.
ANALYSIS AND FINDINGS
11. There are two questions to be answered in the instant case:
a) Firstly, whether the proclamation under Section 82 of State vs. Simran @ Neena FIR No. 739/2018, PS: Saket Page 5 of 9 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?
12. It is an admitted position that the accused failed to appear before this 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?
13. 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.
14. 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) CrPC. 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. Simran @ Neena FIR No. 739/2018, PS: Saket Page 6 of 9
15. 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.
16. 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.
17. The accused in her defence has submitted that the address on which the proclamation was executed was not her address. She has also stated that she was unaware of the processes which were issued State vs. Simran @ Neena FIR No. 739/2018, PS: Saket Page 7 of 9 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.
18. Further, unlike under the provisions of the Code of Civil Procedure, 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. However, in the present case, the accused has stated her correct address which appears to be different from the address on which the proclamation was executed. In view of her defence, it cannot be said that the prosecution has been able to discharge its burden beyond reasonable doubt.
19. 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 State vs. Simran @ Neena FIR No. 739/2018, PS: Saket Page 8 of 9 server Assistant Sub-Inspector Mainpal 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. The aforesaid factors raise a serious doubt that the process was ever put on some conspicuous place of the aforesaid address or the court house.
20. 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.
21. In view of the above, the accused is acquitted for the offence under Section 174A of the IPC.
22. In compliance to Section 437A CrPC, the accused has furnished bail bond and surety bond.
23. File be consigned to Record Room.
Dictated and announced in open Court on 15.12.2022.
(T. Priyadarshini) Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 15.12.2022 State vs. Simran @ Neena FIR No. 739/2018, PS: Saket Page 9 of 9