Delhi District Court
Harjyot Singh State vs . Subhash Thakur on 15 October, 2019
IN THE COURT OF SH. HARJYOT SINGH BHALLA:
ACMM (SOUTH), SAKET, NEW DELHI
Digitally signed
by HARJYOT
HARJYOT SINGH State Vs. Subhash Thakur
SINGH BHALLA FIR No. 212/2018
Date:
BHALLA 2019.10.15 P.S. Saket
14:19:12 +0530 U/s 174A IPC
J U D G M E N T (ORAL)
A. Cr.C. No. : 5763/2018
B. Date of its institution : 28.11.2018
C. Name of the complainant : HC Ashok Kumar
D. Date of commission of offence : 11.04.2018
E. Name of the accused : Subhash Thakur S/o Sh.
Ram Narayan Thakur R/o
159 A, Shiv Vihar, West
Vikas Nagar, Uttam Nagar,
New Delhi
F. Offence complained of : U/s 174 A IPC
G. Plea of accused : Pleaded not guilty
H. Date when judgment reserved : Oral
I. Date when judgment pronounced : 15.10.2019
J. Final order : Acquitted
BRIEF STATEMENT OF FACTS FOR THE DECISION
1. In the present case, FIR was registered under Section FIR No. 212/18 State Vs. Subhash Thakur 1/9 174A IPC pursuant to the orders dated 11.04.2018 passed by Sh. Sandeep Garg, Ld. ACMM, South, Saket Court Complex, New Delhi. Presence of the accused was required by my Ld. Predecessor in FIR No. 616/17 PS Ambedkar Nagar. My Ld. Predecessor had issued a process under Section 82 Cr.PC returnable for 14.03.2018 against the accused on 31.01.2018. The said process which is a part of Ex.PW1/A was apparently executed on 10.02.2018 at alleged residential address of the accused i.e. House No. A159, Shiva Vihar East, Vikas Nagar, Uttam Nagar, New Delhi. However, the accused failed to appear within 30 days and even thereafter and on 11.04.2018 he was declared proclaimed person and the present FIR was directed to be registered by my Ld. Predecessor.
2. Thereafter, the investigation in FIR No. 212/18 was carried out. IO collected the necessary documents, traced the accused and arrested him and filed the present chargesheet.
3. During recording of evidence, the accused admitted the order dated 11.04.2018 and the existence, recording of the FIR No. 212/18 on the date and time mentioned therein but not the truth of the contents. In view thereof, all witnesses, except the Process Server who deposed as PW1, were dropped.
4. The following documents were exhibited on behalf of FIR No. 212/18 State Vs. Subhash Thakur 2/9 the prosecution and admitted by the accused:
Ex.P1 FIR No. 212/18 dated 11.04.2018 Ex.P2 Certificate under Section 65 B Evidence Act regarding FIR No. 212/18 Ex.P3 & Arrest memo dated 30.08.2018 and personal search Ex.P4 memo dated 30.08.2018 in FIR No. 212/18 PS Ambedkar Nagar Ex.P5 Certified PO order dated 11.04.2018 of Sh. Sandeep Garg, Ld. ACMM Ex.P6 Arrest memo dated 31.08.2018
5. At the stage of recording of Statement of Accused under Section 313 Cr.PC, accused stated that he was not residing at the said address but at 298, Deoli Gaon, Khanpur, New Delhi. He examined himself as DW1 and exhibited his Election ID, Aadhar Card and Bank Statement to prove his address and the said documents were exhibited as follows:
Ex.DW1/A Copy of Election ID Card (OSR) Ex.DW1/B Copy of Aadhar Card (OSR) Ex.DW1/C Bank Statement FIR No. 212/18 State Vs. Subhash Thakur 3/9
6. There are 2 questions to be answered in the present case:
1. Whether the proclamation under Section 82 of Cr.PC was duly executed?
2. Whether the accused failed to appear before the court on the date and time fixed without any just or lawful excuse or defence?
7. As far as question no.1 is concerned i.e. Whether the proclamation under Section 82 of Cr.PC was duly executed? The Process Server SI Sanjay Singh was also the IO of the said case FIR No. 616/17. During his cross examination he admitted that co accused had given the address of the accused i.e. A159, Shiv Vihar East, Vikas Nagar, Uttam Nagar, New Delhi. A copy of the process and the statement of the Process Server and the accompanied documents are available in this file. I may note that as per the report of the process server which is Ex.PW1/A (colly) the process in the present case was executed only at the given residential address of the accused. Accused has already in his defence stated that he was not residing at the given address and that his address was of 298, Deoli Gaon, Khanpur, New Delhi. The Election Card Ex.DW1/A (OSR) is of January 2006 and there is an Aadhar card Ex.DW1/B (OSR) which corroborates the address and FIR No. 212/18 State Vs. Subhash Thakur 4/9 the bank statement also shows the address of Deoli till date. Clearly, there is no evidence collected by the IO as address proof of the accused for the address on which the process was executed. The mere admission by the accused during his cross examination that his father was residing in Uttam Nagar and even at the said address is not sufficient compliance of the requirement of Section 82 of Cr.PC.
8. Clearly, the language of Section 82 Cr.PC shows that the proclamation has to be affixed on the house in which such person ordinarily resides or to some conspicuous place of such town or village. The house of the parents of the accused would not qualify as the house in which the accused resided. Therefore, firstly, by affixing a copy at A159, Shiv Vihar East, Vikas Nagar, Uttam Nagar, New Delhi, the compliance qua residence at 298, Deoli Gaon, Khanpur, New Delhi cannot be said to have been made. They are different places within Delhi and almost about more than 20 KMs away.
9. Further, unlike the CPC where service can be effected at the last known address, Section 82 Cr.PC 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 FIR No. 212/18 State Vs. Subhash Thakur 5/9 not mean that if the accused is merely not coming to his ordinary residence but shifts or hides to some other place, the criteria will not be fulfilled).
10. Secondly, there are several contradictions in the testimony of the Process Server regarding the manner of execution of process. Relevant portion of his evidence is reproduced hereinbelow:
I had not taken the photo of the affixation of process. I had not taken any photographs of the public which had gathered when I was reading out the proclamation. I had not taken any photograph of affixation in the court. It is wrong to suggest that I had not visited the court and therefore, I never took any photographs of affixation. I had called a local Dholwala. I did not record his statement. I did not make any departure or arrival entry. I had taken the loud speaker which is usually kept in my car. It was my personal loud speaker. It is wrong to suggest that I did not serve the process at the spot but I prepared my report sitting at the PS. I did not record the statement of the relatives of the accused. Coaccused had given the address of the accused. It is wrong to suggest that accused never resided in the said property and I never verified the address.
11. Therefore, clearly, no photographs are available of the actual pasting. There is no proof that any loudspeaker was actually used as the one available in Police Station was never taken by the FIR No. 212/18 State Vs. Subhash Thakur 6/9 IO and he had taken his own loud speaker is only mentioned in his cross examination. There are no DD entries of departure and arrival. It is settled law that the police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose of PPR Rules. It is apposite at this juncture to reproduce chapter 22 Rule 49 of Punjab Police Rules, 1934, provided as under:
"Matters to be entered in Register No.II The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note: The term police station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
12. It has been held by the Hon'ble High Court in Rattan Lal V/s State, 1987 (2) Crimes 29 that :
FIR No. 212/18 State Vs. Subhash Thakur 7/9"if the investigating agency deliberately ignores to comply to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution".
13. Therefore, on both these counts the execution of process seems improper.
14. It may be pertinent to note that before the amendment introduced Section 174A IPC in the statute book, there was no offence for non appearance in the court after publication of process under Section 82 Cr.PC but a person could thereafter be arrested by anyone at any time. However, since now an offence has been created, the ingredients of Section 82 must be strictly satisfied before an offence can be said to have been committed. Therefore, the language of Section 82 (2) (i) 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.
15. Reliance is placed upon the decision in Pawan Kumar FIR No. 212/18 State Vs. Subhash Thakur 8/9 Gupta Vs. The State of West Bengal, (1973) 1 CALLT 300 and Rohit Kumar @ Raju Vs. State of NCT Delhi and BSES Rajdhani Power Ltd., (2008) 63 AIC 292.
16. In view of the answer to question no. 1, I need not answer the question no.2 in the present case, although, it is suffice to say that the order of the court records that he did not appear.
17. In view thereof, accused is acquitted for the offence under Section 174 A of IPC.
Dictated and announced (Harjyot Singh Bhalla) in the open court ACMM/South on 15.10.2019 Saket Courts: New Delhi FIR No. 212/18 State Vs. Subhash Thakur 9/9