Delhi District Court
State vs S Hariharan on 9 April, 2025
____________________________________________________________________
IN THE COURT OF SH. MAYANK GOEL
ADDITIONAL CHIEF JUDICIAL MAGISTRATE, EAST, KARKARDOOMA
COURTS,DELHI
____________________________________________________________________
State Vs. S Hariharan
FIR No. 345/2024
PS. Preet Vihar
U/s. 174A IPC
Cr. Case No. 111/2025
JUDGMENT
1) The name & parentage of accused : S Hariharan S/o Sh. P.H. Subramaniam
2) Offence complained of : u/s 174A IPC
3) The plea of accused : Pleaded not guilty
4) Final order : Acquitted
5) The date of such order : 09.04.2025
6) Date of Institution : 30.01.2025
7) Judgment reserved on : 04.04.2025
8) Judgment announced on : 09.04.2022 ________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 1 of 9 U/s. 174A IPC Cr. Case No. 111/2025 Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2025.04.09 15:25:41 +0530 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution in brief is that the warrant issued against the accused could not be executed as the accused either absconded or concealed himself and thereupon a written proclamation was issued directing the accused to appear before the court in CC no. 60475/2016 titled as "Anup Mittal HUF Vs. S. Hariharan"
and the accused did not appear in the court and he was declared proclaimed person on 09.09.2024 and the accused was formally arrested on 08.12.2024 and thereby, committed a cognizable offences punishable u/s 174A IPC.
2) After completion of investigation, charge-sheet against the accused for offence u/s. 174A IPC was filed in the Court and after complying with the provisions of Sec.
207 Cr.P.C., arguments on charge were heard. Vide order dated 01.03.2025, charges were framed u/s. 174A IPC against the accused to which he pleaded not guilty and claimed trial.
3) In support of its case, the prosecution examined 03 (three) witnesses.
a) PW1/SI Vijay Pal deposed that he had received process u/s 82 CrPC issued by the Court of Sh. Divyam Lila, Ld. MM against accused S. Hariharan in case titled as Anup Mittal HUF vs S. Hariharan, CC No. 60475/2016 u/s 138 N.I. Act. After receiving the process u/s 82 CrPC, he visited the addresses of accused i.e. EA-1/75, Ground Floor, Inderpuri, New Delhi and second address i.e. B-13, Second Floor, Inderpuri, New Delhi to execute the same where accused was not found residing. He enquired about the accused from the local residents of the society but no clue of accused was found. Thereafter, he ________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 2 of 9 U/s. 174A IPC Cr. Case No. 111/2025 Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2025.04.09 15:25:50 +0530 affixed a copy of process at the main gate of both the given addresses. He made proclamation loudly in the societies as well as on the notice board of court concerned. IO recorded his statement in this regard. PW1 was duly cross- examined by Ld. LAC for the accused.
b) PW2 HC Puran deposed that on 08.12.2024, he was posted at PS Preet Vihar as Head Constable. On that day, he had joined the investigation in the present case with IO HC Ram Singh. During investigation, he accompanied the IO to Mandoli Jail No. 11 where IO interrogated the accused S. Hariharan with the permission of jail officials. After interrogation, IO arrested the accused vide arrest memo which is now Ex. PW-2/A bearing his signature at point A. IO recorded disclosure statement of accused vide memo which is now Ex. PW-2/B bearing his signature at point A. The information regarding arrest of accused was given to the wife of accused. Thereafter, they returned to PS. IO recorded his statement in this regard. PW2 was duly cross-examined by Ld. LAC for the accused.
c) PW3 HC Ram Singh deposed that on 07.11.2024, he was posted at PS Preet Vihar as Head Constable. On that day, the investigation of the present case was assigned to him. He collected the relevant record from the MHC(R) and gone through the same. Accused Hariharan was declared proclaimed person in case titled as 'Anup Mittal HUF vs S. Hariharan' of PS Preet Vihar u/s 138 N.I. Act. On 07.12.2024, he sought permission from the court to interrogate the accused S. Hariharan in the present case vide his request Mark A bearing his signature at point A. He alongwith HC Puran visited Mandoli Jail ________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 3 of 9 U/s. 174A IPC Cr. Case No. 111/2025 Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2025.04.09 15:25:56 +0530 No. 11 and arrested accused S. Hariharan s/o P.H. Subramaniam in the present case vide arrest memo already Ex. PW-2/A bearing his signature at point B. He interrogated the accused and recorded his disclosure statement already Ex. PW- 2/B bearing his signature at point B. He requested the Jail Superintendent of Mandoli Jail to produce the accused in concerned court on 09.12.2024 vide request letter which is now Ex. PW-3/A bearing his signature at point A. On next day, the accused was produced before the Hon'ble Court from where the accused was sent to JC in this case also. He recorded statement of HC Puran and SI Vijay Pal and on completion of investigation, he prepared charge-sheet u/s 174A IPC and filed it in the court through SHO concerned. The FIR and order dt. 09.09.2024 are now Ex. PW-3/B & Ex. PW-3/C respectively which are available in judicial file. He correctly identified the accused in the court. He collected certificate u/s 63(4) (C) BSA which is now Ex. PW-3/D and placed the same on record. PW3 was duly cross-examined by Ld. LAC for the accused.
4) Statement of accused U/s 294 Cr.P.C. has been recorded and he admitted the genuineness of FIR No. 345/2024, PS Preet Vihar as Ex. P1.
5) After Prosecution evidence, statement of the accused has been recorded under section 313 Cr.P.C. r/w section 281 Cr.P.C in which the stand of the accused is that he had appeared through VC regularly in the court proceedings and on 29.05.2024, he joined the court proceedings through VC but due to technical glitch he was expelled from the VC hearing. He has also sent his presence in chat box and he had sent the screenshot to his lawyer. He is innocent and falsely implicate it in the present case.
________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 4 of 9 U/s. 174A IPC Cr. Case No. 111/2025 Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2025.04.09 15:26:06 +0530 However, the accused have opted not to lead defence evidence. Therefore, DE stands closed.
6) I have heard the arguments of Ld. APP for State and Ld. LAC for accused. I have also perused the record carefully.
7) It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
8) It is stated by Ld. Substitute APP for State that all the witnesses examined by the prosecution has totally supported the case of the prosecution. Moreover, accused has admitted the preparation and genuineness of FIR in his statement u/s 294 Cr.P.C. Moreover, no DE has been led by the accused despite opportunity being given. It is further stated by Ld. Substitute APP for the State that the order of the court declaring accused as proclaimed offender is a conclusive proof regarding non-absence of accused in the court at specific date and time u/s 82(3) Cr.P.C.
9) It is stated by Ld. LAC for accused that accused is innocent and has been falsely implicated in the present case. It is further stated by Ld. LAC for accused that procedure of law has not been properly complied by the process server while executing the process under Section 82 Cr.P.C. and there is procedural lapse in the same as it is not in compliance with the judgment of Hon'ble High Court of Delhi in ________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 5 of 9 U/s. 174A IPC Digitally signed by Cr. Case No. 111/2025 MAYANK MAYANK GOEL GOEL Date: 2025.04.09 15:26:15 +0530 Sunil Tyagi Vs NCT of Delhi AIRONLINE 2021 DEL 912 . It is further stated by Ld. LAC for the accused that no investigation has been conducted by the IO in the present matter.
10) Section 174A of IPC provides punishment for non-appearance in response to a proclamation u/s 82 of Act 2 of 1974 and lays down that:-
"whoever fails to appear at a specified place and the specified time as required by a proclamation published under sub-section (1) of Section 82 of Cr.P.C. 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."
11) In the present case, the main question to be answered is that whether the proclamation under Section 82 Cr.P.C. was duly executed or not. The legal propriety of the execution of proclamation under section 82 Cr.P.C. is well settled. Under section 82 Cr.P.C., publication by all three modes or essential namely:
a) Public reading in some conspicuous place of the town/village in which such person ordinarily resides;
b) Affixation at some conspicuous part of the house or homestead;
c) Affixation at some conspicuous part of the court house are mandatory under section 82(2) of the Cr.P.C.
12) 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 or ________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 6 of 9 U/s. 174A IPC Cr. Case No. 111/2025 Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2025.04.09 15:26:24 +0530 conjunctive and not disconjunctive. Whilst the provision of 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 of the code, such a mandate does not translate into unequivocal conviction under section 174A, IPC. If the construction was to be accepted, every allegation under section 174A IPC 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 requires each fact in issue to be proved by way of evidence or not. That the deposition of every witness must necessarily be permitted to be cross-examined for it to constitute admissible evidence.
13) In Devender Singh Negi @ Debu Vs. State of UP, 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 characterized 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 of the Code or mandatory and are to be construed strictly.
14) Further, unlike under the provisions of the Code of Civil Procedure, where service can be affected at the last known address, Section 82 of the Code specifically uses present tense in the relevant subclause (b) i.e. "in which such person ordinarily resides". Therefore, it is not the last known address but the address of the accused in ________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 7 of 9 U/s. 174A IPC Cr. Case No. 111/2025 Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2025.04.09 15:26:34 +0530 the presenti. Of course, it does not mean that if the accused is merely not coming to his ordinary residence but shifts to or hide at some other place, the criteria will not be fulfilled.
15) The report of the process server is of utmost significance. Along with his report of execution, he has to file on record statements of persons who are witnesses to the execution of the proclamation. However, in the present case, neither the report of the process server has been placed on record with the chargesheet nor any such statement. The photographs of the affixation on the alleged residence of the accused is also not on record. However, it is pertinent to note that there is nothing on record to prove that the process server had pasted the notice on the board of the court as he has not placed any such record before this court. Moreover, the court is cognizant that illustrations (e) to section 114 of the Indian evidence act, 1872 provides for presumption that official acts have regularly performed but due to certain inconsistencies in his deposition and documents placed on record, it is doubtful whether the process was executed properly. The prosecution failed to prove whether the process server had contacted the nearby residence and enquired about the accused. Without testimony of the residents that the accused usually resides in that address, it cannot be said conclusively that the address on which the proclamation was done is the address on which the accused ordinarily resides. However, in the present case, the deliberate avoidance of execution of processes and willful non-
appearance before the court has not been proved by the evidence on record. Thus, in the facts and circumstances of the case, by no logic ingredients of offence punishable under section 174A IPC is made out.
16) The language of section 82 of the Cr.P.C. has to be strictly construed as also ________________________________________________________________________________ State Vs. S. Hariharan FIR No. 345/2024 PS. Preet Vihar Page No. 8 of 9 U/s. 174A IPC Cr. Case No. 111/2025 MAYANK by Digitally signed MAYANK GOEL GOEL Date: 2025.04.09 15:26:42 +0530 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 versus The State of West Bengal, (1973) 1 CALLT300 and Rohit Kumar @ Raju versus State of NCT Delhi and BSES Rajdhani Power Limited, (2008) 63 AIC 292.
17) It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.
18) In the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has failed to prove the charges u/s 174A IPC against the accused S. Hariharan beyond reasonable doubts. Accordingly, accused S. Hariharan is hereby acquitted for the offence u/s174A IPC.
19) File be consigned to record room after necessary compliance.
Digitally signed byAnnounced in open Court MAYANK MAYANK GOEL
GOEL Date: 2025.04.09
on 09th April 2025
15:26:51 +0530
(MAYANK GOEL)
ACJM (EAST)/KKD/09.04.2025
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