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Delhi District Court

Rahul @ Kaley vs The State Nct Of Delhi on 11 March, 2024

         IN THE COURT OF SH. ABHISHEK GOYAL,
        ADDITIONAL SESSIONS JUDGE-03, CENTRAL
          DISTRICT, TIS HAZARI COURTS, DELHI

CNR No. DLCT0-011739-2023
Criminal Appeal No. 227/2023

RAHUL @ KALEY,
S/o. Shri. Vijay,
R/o. 11061 Gali Peepal Wali,
Motiya Khan, Paharganj, Delhi.                                  ... APPELLANT

                                            Versus

THE STATE (NCT OF DELHI)                                        ... RESPONDENT

       Date of Institution              :                             19.08.2023
       Date when judgment was reserved :                              27.02.2024
       Date when judgment is pronounced :                             11.03.2024

                              JUDGMENT

1. The present appeal has been preferred against the judgment dated 16.05.2023 (hereinafter referred to as 'impugned judgment'), convicting the appellant for the offence punishable under Sections 53/116 of the Delhi Police Act, 1978 (hereinafter referred to as 'Delhi Police Act/DP Act'), passed by the learned Metropolitan Magistrate/ Ld. MM-06, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Trial Court/MM Court') in case bearing "State v. Rahul @ Kale, Case No. 16/2022", arising out of DD No. 65A, dated 27.09.2022, PS. Sadar Bazar and the consequent order of sentence dated 29.05.2023 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court sentencing the appellant, simple imprisonment for a period of 06 (six) months along with fine of Rs. 5,000/- (Rupees Five Thousand only) for the said offence(s), and in default of payment of the said fine/amount, to undergo C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 1 of 18 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:

2024.03.11 17:00:31 +0530 simple imprisonment for a period of 01 (one) month (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').

2. At the outset, it is relevant to observe that the present petition was initially preferred by/at the behest of the appellant as a revision petition under Section 397/399 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C.'). However, the Ld. Counsel for the appellant moved an application, seeking treatment of the said revision as an appeal along with an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing the present petition.

Appositely, this Court vide its order dated 14.09.2023, in exercise of its jurisdiction under Section 399/401 Cr.P.C. as well as in light of the dictates in Kanwar Pal v. Pritam Singh, 2016 SCC Online P&H 9608 and Mahesh Kumar v. State, 1977 SCC Online All. 364, permitted the treatment of the said revision petition as an appeal/present appeal. Further, the delay which resulted in the said process, consequent to the omission on the part of the Ld. Counsel for the appellant, was, in the interest of justice, condoned. Needless to mention, the said revision petition has been duly preferred by/on behalf of the appellant, within the statutory period for preferring revision petition on 19.08.2023 vide e-Filing No. EC-DLCT01-06517-2023.

3. Proceeding further, succinctly, the case of the prosecution against the appellant is that on 27.09.2022, at an unknown time, the appellant was arrested vide DD No. 21A, dated 27.09.2022 under Sections 107/151 Cr.P.C. and during the course of investigation, it was determined that the appellant was residing within the jurisdiction of PS. Sadar Bazar, in C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 2 of 18 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.11 17:00:39 +0530 contravention of the externment order no. 518-540/Ext. Cell/North dated 04.08.2021 (hereinafter referred to as the 'externment order'), passed by Ms. Anita Roy, Additional Deputy Commissioner of Police, North District, Delhi, in terms of the provisions under Sections 47/50 of the Delhi Police Act. Pertinently by virtue of the said order/ externment order, the appellant was directed to remove himself beyond the limits of NCT of Delhi for a period of 02 (two) years, within a period of 07 (seven) days from the receipt thereof. Consequently, in light of the foregoing facts and circumstances, DD No. 65A dated 27.09.2022 and kalandra under Section 53/116 of Delhi Police Act was registered against the appellant and the present proceedings ensued. Pertinently, the Ld. Trial Court took cognizance of the offence on 27.09.2022 and subsequently, on compliance of the provisions under Section 207 Cr.P.C., notice under Sections 53/116 Delhi Police Act was served/framed against the appellant on 12.12.2022, to which the appellant pleaded not guilty and claimed trial. During the course of trial, prosecution examined two witnesses. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 313/281 Cr.P.C., as well as upon conclusion of arguments on behalf of the appellant as well as by State, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offence punishable under Sections 53/116 of the Delhi Police Act, sentenced him in the manner, as noted hereinabove.

4. Learned Counsel for the appellant submitted that the impugned judgment and order were passed by the Ld. Trial Court, without application of mind, making the same liable to be C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 3 of 18 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.11 17:00:45 +0530 set aside at the outset, as being illegal, unjustified and against all cannons of law. Ld. Counsel further submitted that the Ld. Trial Court failed to appreciate that no material and/or evidence was placed/brought before it, necessitating and/or validating the conviction of the appellant under Sections 53/116 of the Delhi Police Act. In this regard, it was further submitted that the Ld. Trial Court, while passing the impugned judgment and order failed to appreciate that the externment order was passed against the appellant, ex-parte and that the factum of knowledge thereof cannot be imputed on the appellant herein, without being proved by the prosecution. Even otherwise, as per the Ld. Counsel, admittedly, no public witnesses were joined during the time of apprehension of the appellant, despite the same being available, belying the case of the prosecution against the appellant. Ld. Counsel further submitted that the impugned order and judgment is full of surmises and conjunctures, not sustainable under law. As per the Ld. Counsel, even on an earlier occasion, the Ld. Trial Court had convicted the appellant on similar facts and circumstances, however, upon challenge thereto, the appellant was acquitted by the Court of Ld. ASJ-02, Central, Tis Hazari Court. As per the Ld. Counsel, the Ld. Trial Court has further disregarded the settled position of law that in a case where reasonable doubt arises regarding the guilt, benefit of the same cannot be withheld from an accused. In the alternate, Ld. Counsel further submitted that while passing the impugned judgment and order, the Ld. Trial Court failed to appreciate the appellant is a poor man and that the appellant could have been released on period undergone or on probation. Accordingly, Ld. Counsel submitted that the present appeal be allowed, and the impugned C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 4 of 18 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.11 17:00:51 +0530 orders be set aside.

5. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order was passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. Ld. Addl. PP for the State further submitted that the testimony of the witnesses brought forth on record are not only unblemished and consistent, rather, unerringly point out towards the only inference of guilt of the appellant. Ld. Addl. PP for the State further submitted that the appellant, despite being bound under the terms of externment order, continued to reside within the jurisdiction of PS. Sadar Bazar, in contravention of the said order, making him liable for the offence with which he has been convicted with. Further, as per the Ld. Addl. PP for the State, omission of joining public witnesses, at the stage of apprehension of the appellant is not detrimental to the prosecution case, especially when the same stands duly proved from the consistent testimonies of witnesses adduced by the prosecution. Accordingly, Ld. Addl. PP for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.

6. The arguments of Ld. Counsel for the appellant as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record, thoroughly perused.

7. Before proceeding further with the determination of the merits of the present case, this Court deems it pertinent, at the outset, to reproduce the relevant provisions under the Delhi Police Act, as under;

"47. Removal of persons about to commit offences- Whenever it appears to the Commissioner of Police-

                                                                       ABHISHEK     GOYAL
                                                                       GOYAL        Date:
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(a) that the movements of acts of any person are causing or are calculated to cause alarm, danger or harm to any person or property; or

(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence of an offence punishable under Chapter XII, Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code, 1860 (45 of 1860) or under Section 290 or Sections 489-A to 489-E (both inclusive) of that Code or in the abetment of any such offence; or

(c) that such person--

(i) is so disparate or danger as to render his being at large in Delhi or in any part thereof hazardous to the community; or

(ii) has been found habitually intimidating other persons by acts of violence or by show of force; or

(iii) habitually commits affray or breach of peace or riot, or habitually makes forcible collection of subscription or threatens people for illegal pecuniary for himself or for others; or

(iv) has been habitually passing indecent remarks on women and girls, or teasing them by overtures;

and that in the opinion of the Commissioner of Police witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, the Commissioner of Police may, by order in writing duly served on such person, or by beat of drum or otherwise as he thinks fit, direct such person to do so conduct himself as shall seem necessary in order to prevent violence and alarm or to remove himself outside Delhi or any part thereof, by such route and within such time as the Commissioner of Police may specify and not to enter or return to Delhi or part thereof, as the case may be, from which he is directed to remove himself. Explanation.--A person who during a period within a year immediately preceding the commencement of an action under this section has been found on not less than three occasions to have committed or to have been involved in any of the acts referred to in this section shall be deemed to have habitually committed that act.

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53. Procedure on failure of person to leave the area and his entry therein after removal-If a person to whom a direction has been issued under Section 46, Section 47 or Section 48 to remove himself from Delhi or any part thereof--

(a) fails to remove himself as directed; or

(b) having so removed himself enters Delhi or any part thereof within the period specified in the order, otherwise than with the permission in writing of the Commissioner of Police under Section 54, the Commissioner of Police may cause him to be arrested and removed in police custody to such place outside Delhi or any part thereof as the Commissioner of Police may in each case specify.

*** *** ***

116. Penalty for entering without permission area from which a person is directed to remove himself or overstaying when permitted to return temporarily-Without prejudice to the power to arrest and remove a person in the circumstances, and in the manner provided in Section 53, any person who--

(a) in contravention of a direction issued to him under Section 46 Section 47 or Section 48 enters or returns without permission to Delhi or any part thereof, as the case may be, from which he was directed to remove himself; or

(b) enters or returns to Delhi or any part thereof with permission granted under sub-section (1) of Section 54, but fails, contrary to the provisions thereof, to remove himself outside such area at the expiry of the temporary period for which he was permitted to enter or return or on the earlier revocation of such permission, or having removed himself at the expiry of such temporary period or on revocation of the permission, enters or returns thereafter, without fresh permission, shall, on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."

(Emphasis supplied)

8. Remarkably, from a conjoint reading of the aforesaid provisions it is quite understandable that the Delhi Police Act C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 7 of 18 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.11 17:01:09 +0530 inter alia confers a faculty on the Commissioner of Police, under Section 47 thereof, to order removal of persons about to commit offences or for reasons envisaged therein from Delhi or part thereof and upon failure to comply with such directive, "to be arrested and removed in police custody to such place outside Delhi or any part thereof as the Commissioner of Police may in each case specify", in terms of the provisions under Section 53 of the said enactment. Concomitantly, Section 116 of the Delhi Police Act further envisages a penalty for the contravention of such order of removal/externment by prescribing a minimum punishment for a term, "which shall not be less than six months but which may extend to two years and shall also be liable to fine". Appositely, in terms of the provisions under Section 8(2) of the Delhi Police Act, such faculty may be exercised by Deputy Commissioner of Police, Additional Deputy Commissioner of Police or by the Assistant Commissioner of Police.

9. Perspicuously, the objective of an 'externment order' is quite intelligible1, that is, to control anti-social elements under state-specific laws, providing for their inter-State as well as intra-State removal for a certain specified period. Further, relevantly, though, the superior courts2 have upheld the order(s) of externment of unwanted persons as a reasonable restriction on Article 19(1)(d) of the Constitution, however, have cautioned 3 that such an order is an 'extraordinary measure', which should be exercised sparingly. Needless to mention, considering the ramification which may ensue upon violation of such order(s), it becomes quite noteworthy that provisions under the enactment 1 Taukeeir Ahmed Khan v. State of Chhattisgarh, 2022 SCC OnLine Chh 1633. 2 N.B. Khare v. State of Delhi, 1950 SCC 522 and Gurbachan Singh v. State of Bombay, (1952) 1 SCC 683.

3 Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99.

ABHISHEK GOYAL GOYAL Date:

2024.03.11 17:01:16 +0530 are strictly complied with. In particular, to bring home the conviction under the penal provisions of the Delhi Police Act, it is incumbent on the prosecution to establish its case against an accused, 'beyond reasonable doubt'. Further, it goes without saying, like in all criminal trials, burden to prove an irrefutable case against such an accused, charged with an offence under the Delhi Police Act, rests invariably on the prosecution and that the prosecution case, must stand on its own legs 4, basing its findings on the evidence that has been let in by it. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Suchand Pal v. Phani Pal, (2003) 11 SCC 527, wherein the Hon'ble Court, while iterating the said sacrosanct principle of criminal jurisprudence, enunciated as under;

"9. ...It is an established position in law that the prosecution can succeed by substantially proving the version it alleges. It must stand on its own legs and cannot take advantage of the weakness in the defence case. The court cannot on its own make out a new case for the prosecution and convict the accused on that basis. Only when a conclusion is arrived at on the evidence and the substratum of the case is not changed, such a course is permissible..."

(Emphasis supplied)

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brought the appellant vide DD No. 21A under Sections 107/151 Cr.P.C. Further, as per PW-1 during the course of investigation, it was revealed that the appellant was externed from Delhi and that the said factum was confirmed from the Reader of the SHO, whereupon, it was determined that the appellant was externed for a period of two years vide order no. 518-540/Ext. Cell/North dated 04.08.2021 (attested copy being Ex. PW1/A). Consequently, as per PW-1, the appellant was arrested vide memo Ex. PW1/B and the appellant's personal search memo was conducted vide Ex. PW1/C. Further, as per PW-1 upon medical examination of the appellant, proceeding under Section 47 of Delhi Police Act was initiated and kalandra under Sections 53/116 of the Delhi Police Act was filed. Significantly, PW-2/HC Pankaj, also deposed on similar lines in his examination in chief before the Ld. Trial Court and inter alia affirmed of having made DD No. 65A (Ex. PW2/A).

11. Pertinently, PW-1 in his cross examination affirmed that neither any public witnesses were joined in the kalandra under Section 107/151 Cr.P.C. nor had they (PW-1 and PW-2) called any public persons to join the investigation of the present matter. Further, PW-1 in his cross examination admitted that he/PW-1 had not produced the appellant before the concerned DCP, who had passed the externment order against the appellant as well as further confirmed that he/PW-1 had not served the copy of externment order personally to the appellant, prior to his/appellant's arrest in the present case. However, denied the suggestion that the externment order was not served upon him from the court of the concerned DCP and further denied that he had falsely implicated the appellant in the instant case. Needless C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 10 of 18 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:

2024.03.11 17:01:27 +0530 to mention that PW-2/HC Pankaj deposed similarly in his cross examination by/at the behest of the appellant.

12. Apropos the present discourse, it is pertinent to outrightly deal with the contention of the Ld. Counsel for the appellant pertaining to the non-joining of public witness to challenge the apprehension of the appellant herein by PW-1 and PW-2. However, in this regard, this Court outrightly observes that it is a trite law that prosecution case cannot be discarded merely for the want of public/independent witnesses. In fact, in this regard, the Hon'ble Supreme Court in Appabhai v. State of Gujarat, 1988 Supp SCC 241, observed as under;

"11. In the light of these principles, we may now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 11 of 18 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:

2024.03.11 17:01:35 +0530 dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap v. State of Haryana [(1983) 3 SCC 327, 330 : 1983 SCC (Cri) 601] Chinnappa Reddy, J., speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed: [SCC p. 330, SCC (Cri) p. 604, para 6]."

(Emphasis supplied)

13. Similarly, in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291, the Hon'ble Court, in regard the aforesaid reiterated as under;

"8. ... The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down... The ground realities cannot be lost sight of that even in normal circumstances members of the public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when terrorism was at its peak, it is quite natural for members of the public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel should not be relied upon, has hardly any substance and cannot be accepted."

ABHISHEK GOYAL Date: GOYAL 2024.03.11 17:01:42 +0530 (Emphasis supplied)

14. Clearly, in light of the aforesaid dictates of the Hon'ble Supreme Court, the contention of the Ld. Counsel for the appellant pertaining to the want of public witnesses at the time of apprehension of the appellant stand belied and the fact of the appellant's apprehension stands proved from the consistent and irrefutable testimony(ies) of PW-1 and PW-2. Nonetheless, in light of the aforenoted provisions, to bring home the conviction of the appellant under the provisions under Sections 53/116 of the Delhi Police Act, it was incumbent on the prosecution to prove that the appellant was entering an area, without permission, from which he was directed to remove himself or was overstaying therein, when permitted to return temporarily. In particular, the prosecution was required to prove the externment order as well as the appellant's knowledge thereof to substantiate his conviction under the said sections/provisions. However, from a perusal of the material placed on record, the said facts are not proved. In fact, admittedly, the order of externment/externment order was merely exhibited as Ex. PW1/A, without there being any proof thereof. Pertinently, neither the progenitor thereof was adduced as prosecution witnesses nor was the signatures of said progenitor on the said order proved by either of the prosecution witnesses. Even presuming/considering the externment order to be a public document/order, none of prosecution witnesses, have even endeavored to produce/exhibit even a certified copy thereof, in order to prove the said document, as mandated under law 5. Needless to mention here that it is a settled law 6 that mere 5 Section 77/78 of the Indian Evidence Act, 1872. 6 Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731.

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production and making of a document as exhibit by the court cannot be held to be a due proof of its contents. In fact, the execution of such a document has to be proved by admissible evidence. Relevant in this regard to make a reference to the decision of the Hon'ble Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745, wherein the Hon'ble Court noted as under;

"16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd. [(1981) 1 SCC 80] The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents."

(Emphasis supplied)

15. Clearly, in light of the aforesaid, it is reiterated that the externment order was not proved by the prosecution in the instant case. Even otherwise, the prosecution has failed to establish the awareness/knowledge of the appellant regarding the said order/externment order by adducing evidence/witness(es) in this regard. Germane to note at this stage that a perusal of copy of the externment order placed on record, it is quite palpable that the same was passed 'ex-parte'. In fact, nowhere in their respective testimonies, PW-1 and PW-2 have deposed that the said order was, in fact, brought to the notice of the appellant, C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 14 of 18 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:

2024.03.11 17:01:53 +0530 despite which, he was found violating the same. On the contrary, both, PW-1 and PW-2 in their respective cross examination, affirmed that they had not personally served the externment order on the appellant, prior to his arrest in the present case. Further, both, PW-1 and PW-2 also confirmed that they had not produced the appellant before the concerned DCP, who had passed the externment order. Undoubtedly, the said witnesses denied the suggestion that the externment order was not served upon the appellant, however, no affirmative evidence is forthcoming on record to suggest that the externment order was, in fact, served upon the appellant prior to initiation of the present prosecution. Needless to mention at this stage that Section 47 of the Delhi Police Act specifically provides for service of the notice passed therein by the Commissioner, on the person against whom the same is passed, "by order in writing duly served on such person, or by beat of drum or otherwise as he thinks fit." However, under the present circumstances, no evidence of such publication/service of externment order upon the appellant is forthcoming from any material placed on record. In light of the foregoing, this Court is also further not convinced with the observations made by the Ld. Trial Court that in the absence of proof of service of externment order on the appellant as per the provisions of law, any presumption could have been raised against the appellant upon his failure to explain the reasons for him residing in Loni, Ghaziabad, as raised by the Ld. Trial Court against the appellant herein. As aforenoted, it was for the prosecution to prove its case beyond reasonable doubt against the appellant. Further, even the onus of proof could be shifted on the appellant/accused only upon the prosecution establishing a prima C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 15 of 18 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.11 17:01:58 +0530 facie case against the appellant/accused and not to fill in the lacunae or omission in the prosecution's case.

16. Here, it is relevant to observe that, though, the appellant was found to be earlier involved in another case, emanating out of the same externment order, however, the said fact would not come to the rescue of the prosecution case. In fact, it is only at the present stage/appellant stage when the Ld. Counsel for the appellant, sought to rely on the earlier order of acquittal of the appellant in a similar case, Ld. Addl. PP for the State has submitted that the appellant's knowledge of the externment order can be imputed from the date of said proceedings and that to that extent, as per the Ld. Addl. PP for the State, the impugned judgment and order were duly passed by the Ld. Trial Court. However, the said contention of the Ld. Addl. PP for the State, fails to impress this Court to uphold the impugned judgment and order, for reasons which are quite evident. Presumably, for the sake of argument, the externment order came to the knowledge of the appellant at the stage of his earlier proceedings before Ld. ASJ-02, Central, Tis Hazari Court, even then, it was for the prosecution to prove the said fact before the Ld. Trial Court and not at the stage of the present proceeding, in an appeal against conviction by the appellant. Quite intelligibly, this Court while sitting in an appeal by an appellant/accused against an order of his conviction, cannot be expected make out/build a new case for the prosecution and convict the accused on that basis. Needless to observe that not only was said factum of appellant's knowledge of externment from the date of his earlier proceedings before the Ld. ASJ-02, Central, Tis Hazari Court, required to be proved by the C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 16 of 18 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:

2024.03.11 17:02:04 +0530 prosecution at the stage of trial, rather, also needed to be cogently put before the appellant in his statement under Section 313/281 Cr.P.C., seeking an explanation from the appellant regarding the same, before the same could be acted upon. However, the same is not the case here. This is further without prejudice to the fact, as aforenoted, in light of the provisions under Section 47 of the Delhi Police Act, inter alia providing for mode of service of notice/externment order, the stringent provision envisaged under the Act necessitate due compliance thereof and no presumption of service and/or knowledge, as contended by the Ld. Addl. PP for the State, could even otherwise be drawn by this Court at the present stage of appeal.

17. Comprehensibly, in light of the facts and circumstances noted hereinabove, the prosecution has not, in the opinion of this Court been able to unwaveringly and 'beyond reasonable doubt', prove its case as well as bring home the charges, levelled against the appellant herein. Further, considering the gross lacunae and omissions in the case of the prosecution, as noted hereinunder, this Court cannot irrefutably reach a conclusion of guilt of the appellant herein. Even otherwise, it is noted herein that it is a settled law 7 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.

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                                                                              GOYAL
                                                                     GOYAL    Date: 2024.03.11
                                                                                     17:02:09 +0530

determined to be guilty, 'beyond reasonable doubt', of any offence as charged and convicted/sentenced with by the Ld. Trial Court. Consequently, the judgment dated 16.05.2023 and order of sentence dated 29.05.2023, passed by the Ld. Metropolitan Magistrate/ Ld. MM-06, Central, Tis Hazari Courts, Delhi in case bearing "State v. Rahul @ Kale, Case No. 16/2022", arising out of DD No. 65A, dated 27.09.2022, PS. Sadar Bazar, convicting and sentencing, respectively, the appellant for the offence punishable under Sections 53/116 of the Delhi Police Act are hereby set aside. The appellant is hereby admitted to bail on furnishing of a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) along with one surety of the like amount, as required under section 437A Cr.P.C. As requested, the bail bond be furnished within a period of one week.

19. Trial Court Record be sent back along with the copy of this order.

20. Appeal file be consigned to record room after due Digitally signed compliance. ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.11 17:02:16 +0530 Announced in the open Court (Abhishek Goyal) on 11.03.2024. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 227/2023. Rahul @ Kaley v. The State NCT of Delhi) Page 18 of 18