Delhi District Court
State vs Sharwan Kumar @ Tuntun on 15 January, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
Cr. Appeal No. 197/16
In the matter of
State
....Petitioner
Versus
Sharwan Kumar @ Tuntun
S/o Sh. Rajender Kumar
R/o Jhuggi No.A19, Shastri Mohalla,
Shashi Garden, Delhi
.... Respondent
Date of Institution 23.04.2016
Arguments heard 19.12.2017
Order pronounced 15.01.2018
JUDGMENT
1. The present appeal has been filed by the State against the order 01.02.2016 passed by Ms. Richa Parihar, Ld. MM, East, Delhi, in the case titled as State vs Sharwan Kumar @ Tuntun bearing FIR No.37/07, U/s 354 IPC & 174A IPC, PS Pandav Nagar, Delhi. By the said order, Ld. MM has acquitted the respondent/accused (hereinafter referred as 'accused') for the offences u/s 354 IPC & 174A IPC.
2. The brief facts of the present case are that on the basis of a Cr. Revision No.197/16 State vs Sharwan Kumar @ Tuntun 1 of 6 complaint made to SHO PS Pandav Nagar on dated 18.01.2007 made by 'S' (in order to conceal her identity, the complainant is referred as 'S') about the molestation, an FIR was registered u/s 354 IPC.
3. After completion of the investigation, charge sheet was filed and accused was put on trial. Thereafter, on 17.11.2009, a charge for the offence u/s 354 IPC was framed against the accused.
4. Initially, the accused appeared before the Ld. Trial Court, however, after appearing on few dates, he stopped appearing. Thus, firstly, Ld. Trial Court made endeavour to secure the presence of accused by issuance of NBW, however, he could not be arrested and thereafter process u/s 82 Cr.P.C was directed to be made by ordinary process as well as through publication against the accused at his last known address. The process u/s 82 Cr.P.C was duly executed and proclamation was done at the last known address of the accused and was also published in the leading newspapers "Times of India" and "Dainik Jagran" dated 26.08.2014, directing him to appear before the court on or before 29.09.2014. However, despite publication of the proclamation u/s 82 Cr.P.C, accused failed to appear before the court and accordingly, he was declared Proclaimed Offender on 05.01.2015 after recording statement of the process server.
5. Thereafter, on 08.05.2015, accused was arrested and accordingly, a kalandra u/s 41.1(c) Cr.P.C was prepared against Cr. Revision No.197/16 State vs Sharwan Kumar @ Tuntun 2 of 6 him and he was produced before the Ld. MM. Thereafter, a supplementary chargesheet u/s 174A IPC was also filed against the accused.
6. After filing of supplementary chargesheet, on 19.06.2015, a charge for the offence punishable u/s 174A IPC was framed against the accused.
7. The complainant did not support the prosecution case on the point of identify of the accused, thus, considering the prosecution evidence, Ld. Trial Court acquitted the accused for the offence u/s 354 IPC as well as for the offence u/s 174A IPC.
8. Being aggrieved with the said order, the Prosecution has filed the present revision petition mainly on the ground that the Ld. Trial Court overlooked the fact that the accused was also a facing trial for the offence u/s 174A IPC as he was declared PO and Ld. Trial Court has acquitted the accused for the offence u/s 174A IPC without assigning any reason.
9. I have heard the arguments on behalf of State as well as of Ld. LAC Sh. Dinesh Yaduvanshi and gone the records.
10.It is clear from the record that before accused was declared PO, he, lastly, appeared before the Ld. Trial Court on 17.11.2009 and thereafter, he failed to appear before the court. Thus, after issuance of NBW, on dated 01.11.2010 direction was issued to issue process u/s 82 Cr.P.C against the accused which was duly Cr. Revision No.197/16 State vs Sharwan Kumar @ Tuntun 3 of 6 executed. However, on 24.12.2011, accused appeared and moved an application seeking cancellation of proceedings u/s 82 Cr.P.C on the ground that he had met with an accident and suffered a fracture in his leg, thus, accused was directed to produce medical documents and matter was adjourned for 12.03.2012. However, he again stopped appearing before the court and process u/s 82 Cr.P.C was issued afresh against him through ordinary means as well as through publication which was duly published in the aforesaid newspaper dated 26.08.2014 and thereafter statement of process server SI Dharambir Singh was recorded on 05.01.2015 and after considering his statement, accused was declared PO as he failed to appear before the court within 30 days from the date of publication.
11.Thereafter, accused was arrested while he was running PO and on 19.06.2015, a supplementary chargesheet was also filed for the offence u/s 174A IPC against the accused. Thus, accused was put on trial for both the offences u/s 354 IPC & 174A IPC, however, he was acquitted for both the offences on the ground that complainant failed to support the prosecution case in regard to the identity of the accused. It is clear from these facts and circumstances that the accused was facing trial for the commission of offence u/s 354 IPC while he started running absent and after following due process u/s 82 Cr.P.C, he was declared PO, thus, he became liable to face the prosecution u/s 174A IPC along with other offence for which he was already Cr. Revision No.197/16 State vs Sharwan Kumar @ Tuntun 4 of 6 chargesheeted. It is also clear vide order dated 19.06.2015, Ld. Trial Court framed the charge for both the offences, however, he was acquitted under both the sections. It is clear from the provision of section 174A IPC that every person who fails to appear before the court within 30 days after proper execution of the process u/s 82 Cr.P.C, is liable u/s 174A IPC as the default in appearing before the court after proclamation, is a substantive offence u/s 174A IPC and this has nothing to do with the offence for which the accused was initially charged. Thus, in view of the aforesaid provision, the respondent/accused was bound to regularly appear before the court and in case, he, without any justifiable reason, stopped appearing and process u/s 82 Cr.P.C was issued against him and he was declared PO, he becomes liable to be punished u/s 174A IPC. Under these circumstances, even if the main charge is not proved against the accused, he would remain liable for the offence u/s 174A IPC and it is clear from the record that the respondent/accused was very well aware that the present proceedings are pending and process u/s 82 Cr.P.C is being issued against him. In this matter, process u/s 82 Cr.P.C was done against the accused by way of publication and despite that he failed to appear before the court within stipulated time. It is further clear that respondent/accused knowingly absented himself, thus, he was declared a PO. For proving this charge, the prosecution examined the relevant witnesses ie PW1 ASI Dhani Ram, PW2 Sh. Ekansh Sharma, Cr. Revision No.197/16 State vs Sharwan Kumar @ Tuntun 5 of 6 PW4 HC Sanjay Naen and PW7 ASI Dinesh Tyagi as well as CW1 Ct. Amit and SI Dharambir Singh as CW1. It is clear from the testimony of these witnesses that the process u/s 82 Cr.P.C was duly executed against the accused and despite that he did not appear before the court. Thus, from all these facts and circumstances, it is clear that the respondent/accused is guilty of the commission of the offence u/s 174A IPC as he failed to appear despite the publication of proclamation u/s 82 Cr.P.C. Accordingly, the order passed by the Ld. Trial Court in regard to acquittal of the appellant u/s 174A IPC is hereby set aside and he is held guilty for the offence u/s 174A IPC. Let respondent/convict be heard separately on the quantum of sentence. AJAY Digitally signed by AJAY GUPTA Location: Delhi GUPTA Date: 2018.01.15 15:51:15 +0530 (Ajay Gupta) ASJ02/ Special Judge(NDPS) KKD/East/Delhi Announced in open Court on 15.01.2018 Cr. Revision No.197/16 State vs Sharwan Kumar @ Tuntun 6 of 6