Delhi District Court
State vs . Gajender Singh Banner on 28 July, 2023
State Vs. Gajender Singh Banner
FIR no. 27/09; PS Special Cell
IN THE COURT OF SH. DEVENDER KUMAR JANGALA,
ASJ-05, NEW DELHI DISTRICT, PHC, NEW DELHI
CNR No.DLND01-006085-2019
Sessions Case No.163/19
FIR no. 27/09: PS: Special Cell
U/s 174A IPC
Complainant Sh. Ravi Shankar
Represented by Sh. Mukul Kumar, Ld. Additional Public
Prosecutor.
Accused Gajender Singh @ Banner
S/o Sh. Om Prakash
R/o House no. 4321, Badi Basti,
Basant Road, Pahar Ganj,
Delhi.
Represented by Sh. Harsh Hardy, Advocate.
Date of offence 21.05.2009
Date of FIR 28.05.2009
Date of chargesheet 30.03.2019
Date of framing of charges 29.04.2019
Date of commencement of 16.05.2019
evidence
Date on which judgment is 25.07.2023
reserved
Date of Judgment 28.07.2023
Date of the sentencing 10.08.2023
order, if any
Page no.1 of total 12
State Vs. Gajender Singh Banner
FIR no. 27/09; PS Special Cell
Rank of Name of Date of Date of Offences Whether Sentence Period of
the accused arrest release charged acquitted imposed detention
accused on bail with or undergone
convicted during
Trial for
purpose of
Section
428 Cr.PC
1. Gajender 11.03. 02.09. 174A Convicted To be Nil
Singh @ 2019 2020 IPC imposed
Banner later on.
JUDGMENT
1. The accused Gajender Singh @ Banner alongwith accused persons namely Raj Kumar @ Dhanwant, Baljinder @ Balwinder @ Satnam @ Satta @ Bijender @ Badshah, Rambir @ Rama Chaudhary and Sachin Kumar @ Raju was charge sheeted for commission of offence punishable under Section 3/4 MCOC Act.
2. The accused Gajender Singh @ Banner was arrested in the present case on 04.06.2009; he faced trial and charges against him were framed vide order dated 03.10.2011. Thereafter he stopped appearing in the matter and was declared proclaimed offender vide order dated 03.04.2014. Hence the trial of accused Gajender @ Banner was separate from other accused pesons. Other accused persons namely Raj Kumar @ Dhanwant, Baljinder @ Balwinder @ Satnam @ Satta @ Bijender @ Badshah, Rambir @ Rama Chaudhary and Sachin Kumar @ Raju have been acquitted in the present matter, in the absence of accused Gajender Singh @ Banner, vide judgment dated 12.07.2018. It was also held in the said judgment that 'since Page no.2 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell accused Gajender Singh @ Banner is proclaimed offender, the prosecution is at liberty to get the case revived as and when accused Gajender Singh @ Banner is arrested'.
3. Thereafter the accused Gajender Singh @ Banner was arrested in case FIR No. 45/19, PS Paharganj on 30.01.2019 and was formally arrested in the present vase on 11.03.2019. After his arest the accused moved an application for dropping of proceedings for the offences under MCOC Act. Vide order dated 02.09.2020 passed by my Ld. Predecessor, the application for dropping of proceedings for offence under Section 3(1)(ii) of MCOC Act moved on behalf of accused Gajender Singh @ Banner was allowed and proceedings were dropped and he was acquitted of the charge under Section 3(1)
(ii) of MCOC Act.
4. Now the accused Gajender Singh @ Banner is facing the trial only for commission of offence punishable under Section 174A of IPC.
5. The charge of the offences punishable under Section 174A IPC was framed against the accused Gajender Singh @ Banner vide order dated 24.09.2019 and the case was fixed for prosecution evidence to prove the said charge.
6. The prosecution in order to prove the charge for commission of offences punishable under Section 174A IPC has examined four witnesses. The relevant and material extract of deposition of prosecution witnesses is reproduced as under:
Page no.3 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell 6.1. PW-3 Inspector Harbir Singh:
"At the time of incident I was working in special cell, Northern Range as Sub-Inspector. I was posted in Special Cell since November, 2006. Accused Gajender present in court today (correctly identified by the witness) along with his associates Raj Kumar @ Dhanwant, Baljinder Singh @ Badshah @ Satnam and Sachin Kumar were arrested by me in FIR no. 11/2009, u/s 186/353/307/468/471 IPC and 25/27 Arms Act. Investigation of that case was conducted by me. During investigation of that case I came to know that these persons had formed a crime syndicate and involved in offence of robbery/dacoity and also involved in attempt to commit robbery/dacoity in various banks of Delhi, Haryana, UP and Uttranchal on the point of fire arms. I also came to know that the aforesaid persons robbed crores of ruppees from different banks and they had purchased a lot of property and vehicles from the ill gotten money received from the aforesaid robbery/dacoity. I also came to know that aforesaid four persons were involved in various criminal cases of different states and various arms have been recovered from their possessions. During the course of investigation of FIR no. 11/09, PS Special Cell I also came to know that accused persons namely Baljinder and Raj Kumar had got issued various mobile phones on fake identity proof in the name of a person Balbir who did not exist. On 28.05.2009, I was called by Sh. Ravi Shanker, the then ACP at his office at Rohini. I handed over various documents collected by me in FIR no. 11/09, PS Special Cell which relates to recovery of fire arms, fake identities, disclosure statements made by the accused persons and list of properties stands in their names. I handed over photocopies of 21 documents running into 68 pages before Sh. Ravi Shanker, the then ACP, who took the same into possession vide seizure memo EX.PW3/A (already exhibited during the trial of other accused persons). It bears my signature at point A. The photocopy of aforesaid documents are collectively Mark A1 (already exhibited). I also investigated FIR no. 18/09 PS Kamla Market, U/S 393/397/34 IPC and 25 Arms Act. The investigation of said case was marked to Special Cell.
On 20.03.2009 accused Raj Kumar and Baljinder in FIR no. 18/09, PS Kamla Market who were already in police custody in FIR no.11/09 were interrogated. I recorded their disclosure statements. On 4.09.2009, accused Rambiri was produced on production warrant. She was running in JC in FIR no. 429/08 PS Jwala Pur (Haridwar). I made interrogation from Rambiri and I recorded her disclosure statement. I arrested accused Rambiri in FIR no. 18/09, PS Kamla Market. From the interrogation of accused Rambiri I came to know that she was also the member of crime syndicate headed by accused Baljinder and was involved in continuous unlawful activities. I produced photocopies of the documents regarding accused Rambiri before Sh. Ravi Shanker, the then ACP".
Page no.4 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell 6.2 PW-4 SI Surender Pal:
On 11.03.2019 I was posted at Special Cell, NR, Delhi. On that day I alongwith SI Suresh Chand came to Patiala House Courts. Accused Gajender (correctly identified by the witness) had appeared before this court on production warrants. Accused was in custody in case FIR No. 45/19 PS Pahar Ganj under section 25 Arms Act. SI Suresh Chand moved an application for arrest of the accused as accused was declared Proclaimed offender in this case vide order dt. 03.04.2014. After getting permission from this Hon'ble Court accused Gajender Banner was interrogated. He made a disclosure statement. Same is Ex. PW 4/A which bears my signatures at point A. Accused Gajender @ Banner was arrested vide his arrest memo Ex. PW 4/B which bears my signatures at point A. Information regarding arrest of accused Gajender was given to his brother Bhupinder who was presnet inthe court. Accused was sent ot JC. My statement was recorded by SI Suresh Chand".
6.3 PW-5 Sh. Yogesh Shandilya, Ahlmad from the court of Ld. ASJ-3, New Delhi District, New Delhi:
I have brought the judicial record of file bearing SC No. 9038/2016, CNR No. DLND01 000062 2009, titled as State Vs Raj Kumar & Ors., FIR No. 27/2009, PS Special Cell decided on 12.07.2018 passed by the predecessor Sh. Tarun Sehrawat, Ld. ASJ-03, NDD, PHC, ND containing order dated 03.04.2014 passed by Sh. Bharat Parashar, Ld. ASJ-01, NDD, PHC, ND whereby accused Gajender Singh @ Banner, S/o Om Praskash, R/o House No. 4321, Badi Basti, Basant Road, Pahar Ganj, New Delhi was declared Proclaimed Offender in the said case. The certified copy of the order is Ex.PW5/A (OSR).
6.4 PW-6 SI Suresh Chand:
On 11.03.2019, I was posted in Special Cell, Northern Range, Rohini, Delhi. On 11.03.2019, I came to the Patiala House Court and accused Gajnder was produced before the court of Sh. Rakesh Syal, Ld. ASJ on production warrants. Accused Gajender was already declared PO in the present case vide order dated 03.04.2014 by the court of Sh. Bharat Parashar, Ld. ASJ-01, PHC. I moved application for interrogation and arrest of accused Gajender which was allowed and thereafter I took the custody of accused Gajender Singh. I interrogated accused Gajender and arrested him in the present case. The disclosure statement of accused is already Ex.PW4/A which bears my signature at point B and signature of accused at point X. Thereafter, I arrested the accused vide memo Ex.PW/B which also bears my signature at point B and signature of Page no.5 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell accused Gajender at point X. I produce the accused before Hon'ble Court where he was remanded to JC.
I had also collected copy of PO order which is already Ex.PW5/A and thereafter I had filed supplementary charge-sheet for the offence punishable under Section 174(A) IPC".
7. After completion of prosecution evidence, statement of accused Gajender Singh @ Banner under Section 313 Cr. PC was recorded. Accused pleaded that he is innocent and has been falsely implicated in the present case. Accused Gajender Singh @ Banner has not led any evidence in defence.
8. I have heard the detailed arguments advanced by Sh. Mukul Kumar, Ld. Addl. PP for the state and Sh. Harsh Hardy, Ld. Counsel for the accused and perused the record.
9. It is submitted by ld. Addl. PP for the state that the accused being declared proclaimed offender and his rearrest is a matter of record. It is submitted that the prosecution has been able to prove its case beyond reasonable doubts for the charges framed, therefore the accused Gajender Singh @ Banner may kindly be convicted for the offences charged.
10. On the other hand it is submitted by Ld.counsel for the accused that that the prosecution has fails to prove its case beyond reasonable doubt. It is submitted that the accused has already been acquitted for commission of offence punishable under Section 3 of MCOC Act, therefore, he can not be convicted for commission of offence under Section 174A IPC. It is prayed that in the given facts Page no.6 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell and circumstances, accused may kindly be acquitted for commission of alleged offence.
11. The prosecution is seeking conviction of the accused for the offence punishable under Section 174-A IPC which provides as under:
174A. 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.
12. It is well settled law that in the criminal trial the burden of proof to prove all the ingredients of offence charged against the accused is on the prosecution. The prosecution has to prove its case beyond reasonable doubt to secure conviction of the accused. The silence of the accused can not be considered as admission of guilt by the accused. To be held guilty a person under Section 174A of IPC, it is necessary to prove that he has fails to appear at specified place and specified time as required by proclamation published under Section 82 Cr. PC. In the present case the prosecution has alleged that the accused was arrested in the present and was released on bail however, after being released on bail he has fails to appear in the court. The accused has fails to appear before this court on 03.04.2014 as required by proclamation dated 21.02.2014 under sub section 1 of Section 82 Cr. PC despite being accused in the present case having SC no. 163/19, FIR no. 27/09, PS Special Cell. The prosecution has examined PW-3 Inspector Harbir Singh, however, his testimony is not Page no.7 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell relevant in the trial of offence punishable under Section 174A IPC, except to prove the arrest of the accused Gajender Singh in case FIR No. 11/09, under Section 186/353/307/468/471 IPC and 25/27 Arms Act.
13. PW-4 SI Surender Pal deposed that on 11.03.2019 accused Gajender Singh @ Banner was produced in the court from custody on production warrants from custody in case FIR No. 45/19, PS Pahar Ganj, under Section 25 Arms Act. PW-4 further deposed that the accused was declared proclaimed offender in the present, hence after getting permission from the court, the accused Gajender Singh was interrogated and he has made disclosure statement Ex. PW4/A and thereafter he was arrested in the present case vide arrest memo Ex. PW4/B which bears his signatures at point A. The PW-4 was put for cross-examination, however, nil cross-examination was recorded despite grant of opportunity.
14. PW-5 Sh. Yogesh Shandilya is the Ahlmad in the court of Ld. ASJ-03, New Delhi District who produced the judicial record of Sessions case no. 9038/16, CNR no. DLND010000062 2009, titled as State vs. Raj Kumar & Ors, FIR No. 27/09, PS Special Cell containing order dated 03.04.2014 passed by Ld. Predecessor of this court whereby the accused Gajender Singh @ Banner was declared proclaimed offender in case FIR No. 27/09, PS Special Cell. The certified copy of the said order is proved as Ex. PW5/A. During the cross-examination PW-5 admitted that the statement of SI Parveen who had executed the process under Section 82 Cr. PC is also on the Page no.8 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell file alognwith the statement of Omvir Singh, Raveena, Dimple Kumar and Asha Singh as well as photographs regarding posting of notice/proceedings under Section 82 Cr.PC and regarding munadi got done from dholwala. It is also admitted by PW-5 that there is no publication of process under Section 82 CR.PC in the newspaper.
15. It is submitted by Ld.counsel for the accused that the proceedings under Section 82 Cr. PC were not published in the newspaper, therefore, there is non compliance of direction contained under Section 82 Cr. PC. A bare perusal of relevant provisions of Section 82 Cr. PC would reveals that the contention raised by the Ld.counsel for the accused is ill founded and without any basis. The publication in the newspaper is not described as mandatory in the provisions. Even though the publication of the process is necessary but the mode of publication has already been prescribed in the provisions under Section 82 Cr. PC. It is clear from the statement of PW-5(based upon record) that the process under Section 82 Cr. PC was published by pasting of notice and munadi got done by beating of drums. Therefore, the need of publication of process under Section 82 Cr. PC in the newspaper is not fatal to the case of prosecution.
16. Ld.counsel for the accused has relied upon one judgment passed by ASJ-04(South), Saket, New Delhi in case of Ram Pal Singh Vs. State, however, the said judgment being of co-ordinate bench is not binding upon this court.
Page no.9 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell
17. It is also contended by Ld.counsel for the accused that the accused has already been discharged in the main case under MCOC Act, therefore he can not be convicted for commission of offence under Section 174A of IPC. Reliance in this regard is placed upon the judgment of Hon'ble Punjab and Haryana Court in case titled as Sher Singh Rana Vs. State of Haryana & Another, Criminal M No.20832/21 and of Hon'ble Delhi High Court in case Amit Sethi & Ors. Vs. State & Anr., Criminal M. C. No. 30/16. The perusal of the said judgments reveals that the Hon'ble High Courts (Punjab & Haryana and Delhi High Court) in exercise of power under Section 482 Cr. PC has been pleased to quash the proceedings under Section 174A of IPC on the ground that the main offence has already been compounded. The Hon'ble High Courts have quashed the proceedings in exercise of power under Section 482 Cr.PC, which is not available with this court, therefore the judgments(supra) relied upon by Ld.counsel for the accused are of no help in the present matter. In view of above, the contention raised by Ld.counsel for the accused that after being discharged in the main case, the accused can not be held guilty for commission of offence under Section 174A of IPC, is not tenable in the eyes of law as both are distinct offence.
18. PW-6 SI Suresh Chand had arrested the accused Gajender after issuance of production warrants on 11.03.2019 as he was declared proclaimed offender. PW-6 deposed that he moved an application for interrogation and arrest, which was allowed by concerned court and thereafter the accused was arrested in the present Page no.10 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell case. Disclosure statement of the accused and arrest memo are proved as Ex. PW4/A and Ex. PW4/B. PW-6 deposed that he collected the copy of proclaimed offender order which is already Ex. PW5/A and thereafter he filed the supplementary charge sheet for the offences punishable under Section 174A of IPC. PW-6 was cross-examined by Ld.counsel for the accused but during cross-examination no contradiction emerged to shake the trustworthiness or reliability of this witness.
19. The statement of the accused under Section 313 Cr. PC was recorded and all the incriminating evidence was put to the accused. The accused has admitted his arrest in the present case FIR at the initial stage, however the accused with regard to his non appearance after being released on bail, stated that he was informed by his counsel that his main case FIR No. 27/09, under Section 3 MCOC Act, PS Special Cell has been finished and he is no more required to appear in the court. Accused has stated that he was not absconding from the court and he was never informed about the NBW and proceedings under Section 82/83 Cr. PC issued against him. The explanation furnished on record by the accused is without any justification and does not inspire confidence. A bald denial or a feeble explanation by the accused is not sufficient to throw away the case of prosecution. The accused is required to give a plausible explanation with regard to his non appearance before the court. A mere statement that he was informed by his counsel that the case has been finished, without corroborating the statement of said counsel who informed him, cannot be relied upon.
Page no.11 of total 12 State Vs. Gajender Singh Banner FIR no. 27/09; PS Special Cell
20. The prosecution on the basis of deposition of witness has been able to prove that the accused was released on bail in the present matter and after being released on bail, he fails to appear in response to proclamation issued under Section 82 Cr. PC. The process under Section 82 Cr. PC was published and duly executed as per provisions of law. The accused could not furnish any justified explanation for his non appearance, therefore, in the present facts and circumstances, I am of the considered opinion that the prosecution has been able to prove beyond reasonable doubt that after being released on bail the accused Gajender Singh @ banner fails to appear before the court and was declared proclaimed offender vide order dated 03.04.2014. Accordingly accused Gajender Singh @ Banner is convicted for commission of offence punishable under Section 174A IPC. Let, the accused be heard on the point of sentence. Copy of this judgment be sent to the accused through Jail Superintendent concerned.
21. Accused Gajender Singh @ Banner is directed to furnish affidavit of his assets and income in the form of Annexure A as prescribed in the judgment Karan Vs. State of Delhi, 277 (2021) DLT 195 (FB). State is also directed to furnish details of the expenses incurred by the prosecution during trial.
22. Put up for arguments/order on the point of sentence on 10.08.2023.
Announced in the open Court (Devender Kumar Jangala)
on 28.07.2023 ASJ-05, New Delhi District
Patiala House Courts, New Delhi
Page no.12 of total 12