Delhi District Court
State vs Sunny on 26 June, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Sunny
FIR No.507/2016
P.S Saket
JUDGMENT
1. Sr. No. of case 933/2017
2. Date of institution 27.02.2017
3. Name of the complainant Ct. Sanjay Kumar
4. Date of commission of offence On 12.07.2016 at 10:00 A.M.
5. Name of accused Sunny
S/o Sh. Ashok Kumar
R/o House No.305, Balmiki
Mohalla, Tugalkabad, New
Delhi.
6. Offence complained of U/s 174 A IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 26.06.2018
9. Final order Acquitted
10 Date of such judgment 26.06.2018
FIR No.507/2016 PS Saket Page-1/12
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. Brief background of the case is that one sunny was served with the summons in case FIR No.92/2013 PS Saket. Sunny failed to appear before the court and consequently process u/sec 82 Cr.P.C was executed. Despite execution of the proclamation u/sec 82 Cr.P.C. on 10.06.2016, accused Sunny failed to appear in court and was thus declared an absconder. An FIR u/sec 174 A IPC was registered upon direction of Ld. Trial Court where FIR No.92/2013 was pending.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence of under section 174 A IPC was framed against the accused on 07.03.2017.
3. In order to prove its case, the prosecution examined 07 witnesses in all.
4. HC Ranvir was examined as PW1. He deposed that 13.07.2016, he was working as Duty Officer in PS Saket from 4.00 pm to 12.00 midnight. At around 4.55 pm, he received copy of order of Court from the concerned SHO on the basis of which, he registered the present FIR.
FIR No.507/2016 PS Saket Page-2/12 The copy of FIR is Ex.PW1/A. He made an endorsement on the rukka vide Ex.PW1/B. He also prepared certificate u/sec 65 B of Indian Evidence Act vide Ex.PW1/C.
5. ASI Ramesh Kumar was examined as PW2. He deposed that on 10.06.2016 he was deputed as I/C V-B for serving the process of the Court. He went to Balmiki Mohallah, Tugalakabad Village, New Delhi for execution of process under section 82 Cr.PC issued against accused Sunny S/o Sh. Om Prakash R/o House No. 305, Balmiki Mohallah, Tuglakabad Village, New Delhi. He searched address of accused in the locality but he came to know that the said address did not exist. Thereafter, he met beat constable namely Daya Ram in Tughlakabad Village and enquired the said address from him. He replied that there was no sequence of the house number in Tughlakabad Village so it was impossible to trace. Thereafter, he alongwith beat Constable searched address of accused but they could not find the same. He pasted one copy of process under section 82 Cr.PC near the office of Kartar Singh, property dealer at Balmiki Mohallah, Tugalakabad. Thereafter, he carried out the munadi of the said process by publically announcing the said process with the drum beat. Thereafter, he requested Kartar Singh and other public persons to give the statement but they refused. Thereafter, he came at Court complex and affixed a copy of process under section 82 Cr.PC at the notice board of Court no.215, Saket Court. Thereafter, he FIR No.507/2016 PS Saket Page-3/12 went to PS and prepared the report vide Ex.PW2/A. He submitted the report in case FIR No.92/13. His statement was recorded before the Court in case FIR No.92/2013 vide Ex.PW2/B.
6. Sh. Vikas Kumar was examined as PW3. He deposed that on 04.01.2017 he alongwith HC Krishan were present at Lal Kuan, Pul Prahladpur for searching the Proclaimed Offenders. That accused was declared Proclaimed Offender. He alongwith HC Krishan Kumar and secret informer went to house of accused where one person i.e accused was standing outside the said address. They apprehended accused. Witness correctly identified the accused before the Court. IO arrested accused and conducted his personal search vide Mark A and Mark B respectively. Accused was taken to Safdarjung Hospital where he got medically examined and after medical examination, accused was produced before the Court. IO recorded his statement. Accused was handed over to IO of the present case.
7. Ct. Babu Lal was examined as PW4. He deposed that on 04.01.2017 he joined the investigation of the present case. IO HC Ashok Kumar interrogated accused and recorded disclosure statement vide Ex.PW4/A. IO arrested accused and carried out his personal search vide memos Ex.PW4/B and Ex.PW4/C. IO recorded his statement. Witness correctly identified the accused before the Court.
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8. HC Krishan Kumar Yadav was examined as PW5. He deposed that on 04.01.2017 he alongwith ASI Ashok Kumar and Ct. Vikas went to Pul Prahladpur for searching the Proclaimed Offender. At around 5.30 am, when they reached near House No.B-346 (Giriraj Ka Makaan), Dhai Number Chungi, Lal Kuan, Pul Prahladpur one secret informer met them and he informed them that accused Sunny was residing in aforesaid house who was declared as PO in case FIR No. 92/2013 PS Saket and thereafter, he left the spot. Thereafter, they entered the said house and found that accused was standing near the gate of the house. Thereafter, he made enquiry from accused. Accused admitted that he was declared Proclaimed Offender in that case. He prepared Kalandra under section 41.1 Cr.PC vide Mark C. He also deposited the arrival and arrest entry in the Roznamcha in serial no.23B dated 04.01.2017 PS Mehrauli vide Mark B. IO recorded his statement. Witness correctly identified the accused before the Court.
9. Ct. Balkar Singh was examined as PW6. He deposed that on 04.01.2017 he was working as DD Writer from 8.00 am to 4.00 pm. At about 8.30 am, he received a telephone from HC Krishan and he informed him that he was declared Absconder in case FIR No.92/13 and in the present case FIR on 12.07.2016 was arrested under section 41.1 Cr. PC and would be produced before the Court. He reduced the said information in Roznamcha at serial no.16-B. He also reduced the said FIR No.507/2016 PS Saket Page-5/12 information on a plain paper vide Ex.PW6/A.
10. HC Ashok Kumar was examined as PW7. He deposed that on 13.07.2016, on the direction of Ld. MM, the present FIR was registered. The same was assigned for investigation to him. He tried to trace out accused Sunny but in vain. He further deposed that on 05.08.2016, he recorded the statement of HC Ramesh Kumar, Process Server under section 161 Cr.PC. On 04.01.2017, he received DD No. 16B PS Saket that accused was arrested by PS Mehrauli and he was supposed to be produced before Ld. MM. Thereafter, he alongwith Ct. Babu Lal went to Saket Court, Room No. 215 where accused was produced by police officials from PS Mehrauli. He obtained the copy of said kalandra from HC Krishan. Thereafter, he took permission from Ld. MM to interrogate accused and his formal arrest and same was granted. Thereafter, he interrogated accused and recorded his disclosure statement vide already Ex.PW4/A. Accused was arrested vide memos already Ex.PW4/B and Ex.PW4/C. Accused's mother was informed about his arrest. Accused was produced before the Ld. MM and as per the direction of Ld. MM, accused was sent to Judicial Custody. Thereafter, he recorded the statement of Ct. Vikas and HC Krishan under section 161 Cr.PC. Thereafter, he came back to the PS Saket and recorded the statement of Ct. Babu Lal under section 161 Cr.PC. The DD No.16B vide already Ex.PW6/A. Thereafter, he prepared the chargesheet and filed the same FIR No.507/2016 PS Saket Page-6/12 before the Ld. MM for judicial verdict. He correctly identified the accused before the Court.
11. The entire incriminating evidence brought on record against the accused was put to him and his statement under section 313 Cr. PC was recorded. It is stated by accused that he is innocent and has been falsely implicated in the present case. He was/is residing at the house no.i.e. 305, Balmiki Mohalla, Tugalkabad, New Delhi. The above said house still exists and the report of the police is false and wrong. He was apprehended from the above said house only.
12. It is alleged against the accused that he did not appear before the court in response to execution of proclamation u/sec 82 Cr. P.C. In order to bring home the charge u/sec 174 A IPC prosecution is required to prove that a person fails to appear at a specified place and specified time as required by proclamation published u/sec 82 Cr. P.C. In order to prove the charge against the accused prosecution is first and foremost required to prove that process u/sec 82 Cr. P.C. was properly executed as per the requirement of section 82 of the Cr. P.C. Section 82 Cr. P.C. is reproduced herein under:
82. Proclamation for person absconding.---(1) If the Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has FIR No.507/2016 PS Saket Page-7/12 absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(d) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
[(4) Where a proclamation published under sub- section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the FIR No.507/2016 PS Saket Page-8/12 proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.] (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]
13. Now in order to prove the offence against the accused it is essential that the prosecution proves that the proclamation u/sec 82 Cr. P.C. was properly executed. In order to prove its case prosecution examined seven witnesses.
14. Testimony of PW2 ASI Ramesh Kumar is relevant. It is stated by PW2 that he went to the residence of accused Sunny S/o Om Prakash to execute the process u/sec 82 Cr. P.C. He searched the said address in the locality but came to know that the said address did not exist. He even met with the beat Constable namely Daya Ram of the locality. Thereafter, he came across two persons with name Sunny. Father's name of one Sunny was Krishan Dev and father's name of other accused he did not remember. He pasted one copy of process u/sec 82 Cr.P.C. near the office of one property dealer Kartar Singh. Thereafter, he carried out munadi of the said process by beat of drum. He also affixed one copy of proclamation on the notice board of court room no.215 of Saket Court.
15. The said witness in his cross-examination admitted that there is FIR No.507/2016 PS Saket Page-9/12 no DD entry mentioned in his report Ex.PW2/A that he went to Balmiki Mohalla for execution of process u/sec 82 Cr. P.C. Further, he also admitted that in his report Ex.PW2/A it is not mentioned that he carried out munadi by beat of drum. No date on which he went to the said locality is also mentioned in his report Ex.PW2/A. He further admitted that he did not record statement of any public persons who had gathered at the time of munadi. He also did not click any photographs of the place where he affixed the process u/sec 82 Cr. P.C.
16. As per PW3 Ct. Vikas Kumar, the secret informer stated that accused Sunny was residing at House No.B-346, Giriraj Ka Makan 2 ½ number Chungi, Lal Kuan, Pul Prahaladpur and accused was arrested from the said address. His testimony is corroborated with the testimony of PW5 HC Krishan Kumar Yadav who also stated that accused was arrested from house no.305, Balmiki Mohalla.
17. PW7 IO HC Ashok Kumar admitted that the address of accused is 305, Balmiki Mohalla and he went to search of accused on the said address. His testimony is contrary to the deposition of PW3 and PW5.
18. On discernment of testimony of witnesses it is revealed that proclamation u/sec 82 Cr P.C. has not been properly carried out due to the following reasons:-
FIR No.507/2016 PS Saket Page-10/12 PW2 ASI Ramesh Kumar is the one who executed the process. His report is Ex.PW2/A. It is stated in the report that Sunny S/o Ashok Kumar R/o House No.305, Balmiki Mohalla could not be traced despite best efforts. Later one Sunny S/o Kisan Lal and Other Sunny S/o Shiv Charan were found. Accordingly, a copy of proclamation u/sec 82 Cr. P.C. was pasted at office of Kartar Singh and people were called and the munadi was done.
19. Once it is stated in the report and it is also admitted by PW2 that he could not locate house no.305 which is the address of the accused. Process u/sec 82 Cr. P.C. cannot be said to be properly executed. No date on which the said proceedings were executed has been mentioned in the report Ex.PW2/A to fulfill the requirement of 30 days granted to the accused for appearing before the court. No witness from the public who were allegedly present at the time of reading of the proclamation outside the house of the Kartar Singh has been recorded. Even Kartar Singh has not been cited as a witness outside whose office the said proclamation was executed. Sub Clause B of clause 2 of section 82 Cr. P.C. has also not been complied with, since as per the report Ex.PW2/A house of the accused could not be located.
20. It is claimed by PW3 and PW5 that the accused was residing at B-346 and not 305. Contrarily it is admitted by IO that the accused was residing at 305.
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21. In absence of fulfillment of essential requirements of section 82 Cr. P.C. the offence u/sec 174 A cannot be said to have been committed by accused. The benefit of which accrues in his favour. Hence, accused is acquitted for the offence under section 174 A IPC.
Announced in the open
Court on 26.06.2018 (Pooja Talwar)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 12 pages and each page is signed by me.
(Pooja Talwar) CMM (South), Saket Courts, New Delhi Digitally signed by POOJA POOJA TALWAR TALWAR Date:
2018.06.27 15:21:11 +0530 FIR No.507/2016 PS Saket Page-12/12