Delhi District Court
State vs Nitesh Shrivastav on 13 March, 2024
Page 1 of 8
IN THE COURT OF ASHISH KUMAR MEENA
MM-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.:295/23
PS: FATEHPUR BERI
U/S: 174A IPC
CR. CASE NO. 61/2024
STATE
VS.
NITESH SHRIVASATVA
S/o SH. SURENDER SHRIVASATVA
R/O B-33, RAJU PARK, DEVLI,
KHANPUR, NEW DELHI ...... ACCUSED
1. Sl. No. of the case : 61/2024
2. The date of offence : 30.06.2023
3. The plea of the accused : Pleaded not guilty
4. Argument heard on : 05.03.2024
5. The date of order : 13.03.2024
6. The final order : CONVICTED
JUDGMENT
1. Briefly stated, accused Nitesh Shrivastava ("Accused") is facing trial for the allegations that he was facing trial in case FIR No. 511/2020 PS Fatehpur Beri. However, he did not appear before the concerned despite proper service. Accordingly, proceeding FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava Page 2 of 8 under section 82 (1) Cr.P.C were initiated against the present accused. The accused failed to appear before the Court of Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi as specified in proclamation published under Section 82(1) Cr.P.C. Thus, accused, in terms of report u/s 82 Cr.P.C, was declared as proclaimed offender vide order dated 30.06.2023, passed by Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi in case FIR No. 511/2020 PS Fatehpur Beri. Concerned Ld. MM also gave the directions to the concerned SHO to register the case under section 174A IPC. In compliance of the said order, concerned SHO registered the present FIR No. 295/2023 u/s 174A IPC.
2. Thereafter, the accused was arrested by arresting officer HC Yogesh PS Mehrauli in kalandara u/s 41.1C Cr.P.C. The accused was produced before the concerned Ld. MM, South, Saket Courts within 24 hours from the time of arrest. On the same day, the IO of this case formally arrested the accused in present case FIR No. 295/23 PS Fatehpur Beri. Thereafter, the accused was sent to judicial custody. Thus, the accused was booked under the Section 174A IPC.
3. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 174A of the IPC and accordingly, the charge was framed against the accused to which accused pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, prosecution examined the IO/ PW- HC Krishan Kumar. He has deposed that investigation of the present case was marked to him. During FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava Page 3 of 8 investigation, HC Yogesh PS Mehrauli informed him that accused has been arrested in kalandara and he will produce him before the Court on 11.12.2023 as accused was declared as PO in case FIR No. 511/2020. Thereafter, he formally arrested the accused vide Ex. PW1/B. He recorded his disclosure statement vide Ex. PW1/C. Accused was sent to JC in present case. Thereafter, on completion of investigation, he submitted the chargesheet before this Court.
5. It is pertinent to mention that the accused has also admitted the genuineness of these following documents u/s 294 Cr.P.C, without admitting the content of the same:
a. Present FIR No. 295/2023 PS Fatehpur Beri.
b. DD No. 125A registered under Section 41.1 (C) Cr.P.C dated 10.12.2023.
c. Order dated 30.06.2023 passed by Ld. Predecessor of this Court in case FIR No. 511/2020 PS Fatehpur Beri.
6. On completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused did not wish to lead defence evidence.
7. Final arguments heard. Case file perused.
8. Short point for determination before this court is as under:
'' The accused was facing trial in case FIR No. FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava Page 4 of 8 511/2020 PS Fatehpur Beri. However, he did not appear before the concerned despite proper service. Accordingly, proceeding under section 82 Cr.P.C were initiated against the present accused. Further, the accused failed to appear before the Court of Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi as specified in proclamation published under Section 82(1) Cr.P.C. Thus, accused, in terms of report u/s 82 Cr.P.C, was declared as proclaimed offender vide order dated 30.06.2023, passed by Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi in case FIR No. 511/2020 PS Fatehpur Beri. Thereby the accused has committed the offence under Section 174A IPC''
9. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
10. It is argued by the Ld. LAC for the accused has submitted that accused was never served with the proper service in case FIR No. 511/2020 PS Fatehpur Beri. It is submitted that the process server visited the incorrect/earlier address. Thus, the proceedings issued u/s 82 Cr.P.C are defective. Hence, no offence under section 174A IPC is made out against the accused. Ld. LAC has submitted that the accused be acquitted from all the charges.
11. In the present case accused is charged under Section 174A FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava Page 5 of 8 IPC. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act:
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. Section 174A IPC is divided into two parts. First part deals with the situation where the proclamation is issued under Section 82(1) Cr.P.C. and when the accused failed to appear despite its publication, he is to undergo imprisonment upto three years or with fine or with both. The second part of Section 174A relates to the declaration issued by the Court under Section 82(4) Cr.P.C. wherein serious offences have been prescribed and despite declaring a person as proclaimed offender, when he fails to appear, the punishment provided is imprisonment upto seven years and payment of fine. Thus, Section 174A IPC penalizes the non- appearance of a person as required by a proclamation published under. In case of non- appearance consequent to a proclamation under Section 82(1) of the Code for a term up to three FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava Page 6 of 8 years/fine/both and in case of a declaration under Section 82(4) of the Code (in respect of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC for a term upto seven years with fine. Since non-appearance of accused in response to the proclamation under Section 82 CrPC has been made a substantive offence, the provisions of Section 174A IPC are required to be invoked against absconding accused. When the accused fails to appear before the court in response to the proclamation issued under Section 82(1) CrPC, within the period of 30 days from the date of proclamation, or fails to appear at the specified place and time required by the proclamation issued under Section 82(4) CrPC, he is punishable with imprisonment for a term which may extend to three years or with fine or with both and imprisonment for a term which may extend to seven years or with fine or both, respectively.
13. Admittedly, the accused Nitesh Shrivastava was and currently is facing trial in case FIR No. 511/2020 IPC PS Fatehpur Beri. On receipt of charge-sheet of FIR No. 511/2020, the process was issued qua accused for securing his presence. However, the accused Nitesh Shrivastava did not join the proceedings despite being properly served. Thus, Ld. Predecessor of this Court issued a process under Section 82(1) Cr.P.C for securing his presence appear before the concerned Court. The accused did not pay heed to the directions of the concerned Court and failed to appear before the Court on specified date and time. Thus, accused, in terms of report u/s 82 (1) Cr.P.C, was declared as proclaimed offender vide order dated 30.06.2023, passed by Ms. Manu Shree, Ld. MM-01, Saket Courts, South, New Delhi in case FIR No. 511/2020 PS Fatehpur Beri.
FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava Page 7 of 8
14. The accused has admitted that the he is facing the trial in FIR No. 511/2020 PS Fatehpur Beri. The accused has admitted that he is aware of the fact regarding issuance of process under section 82 (1) Cr.P.C. He has also admitted that Ld. Predecessor of this Court has passed an order dated 30.06.2023, thereby declaring him as Proclaimed Offender. Further, he has admitted that he was arrested by HC Yogesh No. 801/SD PS Mehrauli in Kalandara under section 41.1(c) Cr.P.C in compliance of order dated 30.06.2023. He was produced before the Concerned Court on 11.12.2023. Thereafter, on the same day IO/HC Krishan arrested the accused and got him sent to Judicial custody in present case. The accused has totally admitted the said Kalandara Dated 10.12.2023. Further, as arrest memo of the said kalandara, the address of accused is B-33, Raju Park, Devli, Khanpur, New Delhi. It is also the same address on which the compliance of Section 82(1) Cr.P.C was made. Moreover, the Ld. Predecessor of this Court was also satisfied with the report of process server of the proceeding under Section 82(1) Cr.P.C. It is further to be noted accused has failed to bring anything on record to show that the process issued prior to order dated 30.06.2023 were defective. The PW-1/IO of this case has also proved the allegations. There is nothing on record which supports the case of defence. Thus, the process issue qua accused under section 82(1) Cr.P.C were duly executed against the accused Nitesh Shrivastava as per procedure laid down, despite that the accused failed to appear before the concerned Court.
15. Thus, in the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 174A IPC against the accused Nitesh FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava Page 8 of 8 Shrivastava beyond reasonable doubts. Accordingly, accused NITESH SHRIVASTAVA is hereby convicted for the offence u/s 174A IPC.
16. Let the copy of judgment be given free of cost to the convict.
17. Let the convict be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 13.03.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO EIGHT PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
(ASHISH KUMAR MEENA) MM-01/SAKET COURT(SOUTH), NEW DELHI, 13.03.2024 FIR No:295/2023 PS: Fatehpur Beri State Vs. Nitesh Shrivastava