Delhi District Court
State vs . Mohd Shahnawaz on 30 July, 2022
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE-08, SOUTH EAST DISTRICT, SAKET
COURTS, SAKET, NEW DELHI
JUDGMENT
STATE VS. Mohd Shahnawaz
FIR NO: 151/2021
P. S. Jamia Nagar
U/s 188 IPC
a Sl. No. of the case : 7618/2021
b Date of commission : 13.04.2021
c Date of institution of the case : 21.10.2021
d Name of the complainant : ASI Devender Singh
E Name of the accused and his : Mohd. Shahnawaz, S/o Sh. Sher
parentage Mohd., R/o R12, Ground floor,
Okhla Village, Jamia Nagar, New
Delhi
f Offence complained of : 188 IPC
g Plea of accused : Not guilty
h Orders reserved on : Not reserved.
i Final order : Accused is convicted for the
offence punishable u/s 188 IPC
j Date of judgment : 30.07.2022
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. As per the case of the prosecution that on 13.04.2021, it is alleged against accused that at about 08.00 pm, at Okhla Head, Jamia Nagar, New Delhi, within the jurisdiction of P.S. FIR No. 151/2021 PS Jamia Nagar PAGE 1 OF PAGE 11 Jamia Nagar, he was found wandering without mask and thus violated the prohibitory orders u/s 144 Cr.P.C. vide notification order no. 1750-1789/ACP NFC, dated 06.04.2021 and thereby committed an offence punishable U/s 188 IPC and within my cognizance. On the said complaint, FIR was registered and investigation was carried out. After completion of the investigation, chargesheet was filed against the accused Mohd Shahnawaz.
2. Notice in respect of the offence punishable under Section 188 IPC was served upon the accused, who pleaded not guilty and claimed trial.
3. The prosecution in all examined 2 witnesses. PW1/SI Devender Singh was posted as ASI at PS Jamia Nagar, who deposed that on 13.04.2021, in evening time, accused Shahnawaz was apprehended by PW1/SI Devender Singh alongwith Ct. Mohit Shyam at Okhla Head, Jamia Nagar, New Delhi as he was wandering without wearing the mask which was against the prohibitory order issued by ACP, NFC which is now Ex. PW-1/A. Thereafter, PW1 prepared the rukka and sent Ct. Mohan Shyam to the PS for the purpose of registration of FIR. The rukka in this regard Ex. PW-1/D. The arrest memo in this regard Ex. PW-1/B and PW1 prepared the site plan Ex. PW-1/C and mark A is a place where incident occurred to FIR No. 151/2021 PS Jamia Nagar PAGE 2 OF PAGE 11 which PW1 correctly identified the same. PW1 correctly identified the accused before the court.
4. PW2/ Ct. Mohan Shyam deposed that on dated 13.04.2021, he was posted as Constable at PS Jamia Nagar. In evening time, accused Shahnawaz was apprehended by ASI Devender Singh at Okhla Head, Jamia Nagar, New Delhi as accused was wandering without wearing the mask which was against the prohibitory order issued by ACP, NFC Ex. PW-1/A. Thereafter, IO prepared the rukka and sent him to the PS for the purpose of registration of FIR. The rukka in this regard Ex. PW-1/D. The arrest memo in this regard is already Ex. PW-1/B. The accused Mohd. Shahnawaz present in the court and correctly identified by the witness. PW2 correctly identified the accused before the court.
5. In his statement recorded under Section 313 Cr.P.C., the accused has denied the entire incriminating evidence put to him. He said that he was having the mask but had not worn the same. He further stated that he is innocent and has not committed any offence. He stated that he has been falsely implicated in the present case.
6. It has been argued by Ld. APP for the State that case of the prosecution has been fully proved as all the evidences are in line with the prosecution story. On the other hand, Ld. Counsel FIR No. 151/2021 PS Jamia Nagar PAGE 3 OF PAGE 11 for accused has argued that accused is innocent and he has been falsely implicated in the present case and that there is contradiction in the testimony of prosecution witnesses.
7. I have heard Ld. APP for the State and Ld. Defence counsel for accused and considered the respective arguments as well as gone through case file very carefully.
8. In order to prove its case, prosecution needs to prove following:
1. There must be an order promulgated by a public servant ;
2. Public servant must have been lawfully empowered to promulgate such an order ;
3. A person must know the order and disobey it ;
4. Such disobedience must likely to cause or tends to cause danger to human life.
9. As per the fact, the period which is mentioned for the offence is very well within the period of COVID 19 spread wold wide, which was a pandemic on human life and vast measurement and steps were being taken to contain the spread of corona virus to save the life. Except the necessary institutes, all the activities in the nation were stopped. Here perusal of the file shows that order of ACP i.e. order no. 1750-1789/ACP NFC, dated 06.04.2021 is not made part of the charge-sheet but court FIR No. 151/2021 PS Jamia Nagar PAGE 4 OF PAGE 11 can take notice of certain facts to be true without either party requiring to produce evidence for their support. The section 57 of the Indian Evidence Act says that the Court must take judicial notice of the facts given under this section. The section further prescribes that the judge is also expected to have knowledge regarding matters of public history, literature, art or science. The judge may refer to books and documents. It is clear upon reading Section 57 that the Court has no other option but is obligated to take judicial notice of facts mentioned in the Section as it uses the word "shall" and not "may". Apart from the list of facts mentioned in the provision, the Court may take judicial notice of the passing away of eminent personalities, date, and result of election polls or an event so famous that the whole nation is aware of it. These judicial noticeable facts are widely known by every person and everyone knows them to be true, hence, proving these facts is a waste of time and effort.
10. Relevant facts that are admitted under judicial notice are accepted by the Court even without producing a witness. This rule is often used for the simplest and obvious facts that are considered to be common sense and need not be proved. The same was held by the Hon. Supreme Court in Onkar Nath & ors v. The Delhi Administration (1977 AIR 1108) that "Recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and FIR No. 151/2021 PS Jamia Nagar PAGE 5 OF PAGE 11 wisdom of accepting the existence of matters which are unquestionably within public knowledge. Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present." Therefore, even if order of ACP was not made part of the case file still it was a widely known fact that mask is compulsory / mandatory to save oneself from corona virus and hence, this court takes judicial notice of this fact.
11. Perusal of the case file also shows that accused in his statement recorded u/s 313 Cr.P.C. admits that he was having a mask but same was not worn by him and he did not give any reason for not wearing the mask neither he brought any defence evidence. It pertinent to note here that when the whole world was suffering from pandemic and resulted in loss of many human life and guideline were issued by various government agencies to avoid spread of pandemic, accused was having knowledge of corona virus but found without wearing mask. This reason is not sufficient to allow accused to be part of spreader of pandemic.
12. Further, from the testimony of PW1 and PW2, we FIR No. 151/2021 PS Jamia Nagar PAGE 6 OF PAGE 11 found that accused was correctly identified by them. When asked by PW1 and PW2, accused submitted that he had forgotten the mask at home. It is also admitted by prosecution witnesses that there were several people who were not wearing mask and challan were issued against them at the spot and it was the accused only who chose to appear before the court. PW2 also corroborated the statement of PW1 on the point that when accused was stopped, he was not wearing mask and there were many people not wearing the mask and challans were issued at the spot but accused chose to appear before the court. But reason to appear before the court rather than paying the challan on the spot, is not brought on record during trial by the accused.
13. Further PW1 and PW 2 both submit that public witnesses were not made the part of the present case though they were present. Testimony of police witness can not be doubted in absence of non joining of public witness. Moreover, with respect to public person not cited as witness, this court found no reason to show why police officer would falsely implicate the accused. As held in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291, the presumption that a person acts honestly applies as much in favor of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds.
FIR No. 151/2021PS Jamia Nagar PAGE 7 OF PAGE 11 There is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon.
14. Furthermore, it was clarified by PW1 and PW2 that other public persons were roaming around without wearing mask and they were challaned on spot and though legally and technically these public persons are not involved in present case or with accused but for the purpose of not citing them as witness or for spreading the covid 19/ corona and for violation of order of ACP resulting in offence of section 188 IPC, they can also be said as co-accused though not tried jointly and hence acquire a special status and their non joining as public witness is justified because they might also support the accused in this case being affected by the same police officers as the same police officers had also challaned them.
15. The Hon. Kerala High Court in Abdul Razak @ Abu Ahmed vs Union Of India on 25 August, 2021 recently held that a person arraigned as an accused can only be examined as a witness against the other accused in a trial relating to the same offence when the witness has been made an approver after granting pardon under Sections 306 or 307 of the Code of Criminal Procedure. It is further held in the impugned order, the Special Court referred to Section 118 of the Evidence Act which speaks about the competence of persons to testify before FIR No. 151/2021 PS Jamia Nagar PAGE 8 OF PAGE 11 Court. In our view the said provision is a general provision which has to concede to the special provision and the constitutional guarantee enshrined under Article 20(3) of the Constitution of India. Article 20(3) is a privilege extended to the accused not to incriminate himself, which in effect is his right to remain silent, further reinforcing the duty of the prosecution to establish the guilt by the higher standard of proof beyond reasonable doubt. Section 315 is the enabling provision which allows the accused to speak in his defence, voluntarily. An exception is also provided in sections 306 & 307 Cr.P.C which coupled with section 132 of the Evidence Act offers the prosecution a chance to bring home the guilt on the more serious offenders or to nail more offenders at the expense of one being let back into society. The entire scheme results in an inference that an accused cannot be called to the witness box by the prosecution in support of the charges if he is also accused of charges arising from the very same set of facts and in the course of the same transaction and this prohibition applies to even an accused tried earlier and convicted by the same or a different court.
16. Besides the inferred prohibition in granting permission to a co- accused being summoned by the prosecution as a witness, another crucial aspect to be noted is that, granting permission in such circumstances, may result in an opportunity FIR No. 151/2021 PS Jamia Nagar PAGE 9 OF PAGE 11 to the prosecuting agency to misuse the same by manipulating one of the accused by compelling him to plead guilty or get the criminal proceedings split up so as to convict him and then either coerce or entice him with something short of a pardon to cite him as a witness against the other accused persons. This may cause serious prejudice to the defence of the other accused.
17. There is yet another aspect which would fortify our finding. The prohibition against examination of an accused as a witness to the prosecution is also evident from the provisions of the Oaths Act, 1969.
18. Thus from the fact, it is found that deposition made by PW1 and PW2 remained unchallenged and unrebutted. Nothing contrary or discrepancies came on record which could benefit the accused. Neither accused could justify his reason for not wearing the mask nor any medical documents is brought as defence nor any other witness is brought to contradict the testimony of the PWs, who can suggest the accused action justified. Hence, it is clear that accused not only disobeyed the order issued by ACP but may also spread the corona virus or may get corona virus from others. Here after appreciation of the evidences, this court finds that both the police officers are not only the investigating officer but also the star witness of the fact that accused was wandering without the mask. Hence, FIR No. 151/2021 PS Jamia Nagar PAGE 10 OF PAGE 11 PW1 is found wholly reliable.
19. In a well-balanced, well-analysed, well-articulated, well-reasoned and well-framed judgment titled Amar Singh vs The State (NCT Of Delhi) in Criminal Appeal No. 335 of 2015, delivered as recently as on October 12, 2020, the Supreme Court has laid down in no uncertain terms that conviction can be based on the testimony of a single eye witness so long he is found to be wholly reliable.
20. Thus, in view of the above, accused Mohd. Shahnawaz is convicted u/s. 188 IPC.
21. Let the convict Mohd. Shahnawaz be heard on the point of sentence.
Copy of this judgment is given to convict Mohd. Shahnawaz.
Announced in the open court (Snehil Sharma) on 30.07.2022 Metropolitan Magistrate-08, South East, Saket, New Delhi.
FIR No. 151/2021PS Jamia Nagar PAGE 11 OF PAGE 11