Delhi District Court
State vs Himanshu And 2 Ors on 9 January, 2026
IN THE COURT OF SH. ANIMESH KUMAR, JUDICIAL MAGISTRATE
FIRST CLASS-02, PATIALA HOUSE COURTS, NEW DELHI
STATE VS. HIMANSHU & ORS.
FIR NO: 42/2022
P. S CHANAKYAPURI
U/s 188 IPC
JUDGMENT
Sl. No. of the case : 42188/2023
Date of its institution : 15.02.2023
Name of the complainant : ASI Bijender
Date of Commission of offence : 09.03.2022
Name of the accused : (1) Himanshu, S/o Sh. Rajesh, R/o
230/17A, Gali No. 7, Railway
Colony, Mandawali, Delhi.
(2) Mahesh Pahwal, S/o Sh. Babu
Ram, R/o K-16, Krishna Nagar,
Delhi.
(3) Naren Bhiku Ram, S/o Late Sh.
Bhiku Ram Jain, R/o 49, Bhiku
Ram Jain Marg, Rajpur Road, Civil
Offence complained of : 188 IPC
Plea of accused : Not Guilty
Case reserved for orders : 13.01.2025
Final Order : ACQUITTAL
Date of orders : 09.01.2026
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Digitally signed by
ANIMESH ANIMESH KUMAR
KUMAR Date: 2026.01.09
14:37:59 +0530
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused persons namely Himanshu, Mahesh Pahwal and Narain Bhiku Ram Jain for having committed the offence punishable u/s 188 of the Indian Penal Code, 1861 (hereinafter referred as the "IPC").
2. Briefly stated, it is the case of prosecution that on 09.03.2022 at about 12:30 PM, the accused persons along with some other persons had gathered at Trimurti Marg, Delhi and were protesting against the Government of India regarding the assistance provided to bring Indian from Ukraine. The accused persons had gathered at the spot in violation of order No. 1505-76/R-ACP/Chanakyapuri/NDD dated 26.02.2022 vide which restriction u/s 144 Cr.P.C was imposed in the area and restrictions were also imposed regarding COVID. The accused persons were also not maintaining the protocols of social distancing and were also not wearing face mask at the time of protesting.
3. After completing the formalities, the investigation was carried out by PS Chanakyapuri and a charge sheet was filed against the accused persons. Thereafter, notice for the offence punishable u/s 188 IPC was 2 served upon the accused persons vide order dated 23.02.2023, to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused, the prosecution examined the following witnesses:
• ASI Bijender, deposed as PW-1;
• SI Sitaram, deposed as PW-2; and • SI Maheshwar Singh, deposed as PW-3.
5. PW-1 was the complainant and eye witness of the present case. He deposed that own 09.03.2022, he was on emergency duty. On account of war going between Russia and Ukraine, some persons from Azad Samaj Party had gathered at Trimurti Marg, Delhi. The accused persons along with some other persons were protesting for taking assistance of the Government to bring Indians from Ukraine. He further deposed that as per the order of SHO PS Chanakyapuri, section 144 Cr.P.C was enforced for preventing the gathering of more than 4 persons together. He further stated that the accused persons were apprised about the enforcement of the said section and they were requested to leave the gathering and the spot. However, the accused persons did not listen and continued their protest. He further stated that at that time, COVID 19 pandemic was also 3 going on and the accused persons also did not maintain the protocols of social distancing and they were also not wearing face mask. Thereafter, the accused persons were apprehended and rukka was prepared u/s 188 IPC in violation of the order passed by the ACP. The said rukka is Ex. PW-1/A. He also prepared the site plan Ex. PW-1/B. He correctly identified the accused persons in the Court.
6. PW-1 was duly cross-examined by the Ld. Defence Counsel wherein he deposed that around 20-25 persons had gathered at the spot. He also stated that he was aware about the order no. 209/2003. He further stated that all the protesters were stopped for moving ahead by putting barricades on the road. He also stated that he did not note down the name and addresses of other persons present at the spot. He also stated that he was present at the spot till the protest got over. He further stated that he did not file any photograph or video recording regarding the barricading on the road at the time of the incident. He denied the adverse suggestions given by the accused persons.
7. PW-2 had registered the present FIR on the basis of rukka prepared by PW-1. He proved on record the FIR Ex. PW-2/A and endorsement made on the rukka Ex. PW-2/B. He also proved the certificate u/s 65B of the 4 Indian Evidence Act Ex. PW-2/C. He was duly cross-examined by the Ld. Counsel for the accused persons.
8. PW-3 is the second investigating officer of the present case. He deposed that during the investigation, he went to the office of Samajwadi Party at Rajpur Road, Civil Lines and served notice u/s 41A Cr.P.C upon all the accused persons. He also obtained the permission of the cornered ACP u/s 195 Cr.P.C Ex. PW-3/D. He correctly identified the accused persons in the Court. He was duly cross-examined by the Ld. Counsel for the accused persons.
9. The accused persons had admitted u/s 294 Cr.P.C the order passed by the concerned ACP dated 26.02.2022 Ex. A-1. Hence, formal proof of the same was dispensed with.
10. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 10.01.2025. Thereafter, statement of the accused persons was recorded on 01.07.2025 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein they were not raising any slogans and went at the spot to give representation to the concerned ACP. They did not choose to lead defence evidence.
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11. During the final arguments, the Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross- examination and there is no reason to doubt their testimonies. PW-1 i.e. the complainant and the eye-witness had completely supported the case of the prosecution. Thus, the prosecution has successfully proved their guilt beyond reasonable doubts in the present case.
12. The Ld. Counsel for the accused persons submitted that they were falsely implicated in the present case. No independent eye-witness was examined by the prosecution. Even the prohibitory order and the complaint u/s 195 Cr.P.C were not duly proved on record. Also, no publication of the prohibitory order allegedly passed u/s 144 Cr.P.C by the concerned ACP was done by the police officials. Hence, it could not be said that the accused persons were aware about any such order.
13. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
14. It is a settled proposition of law that in a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 6 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
15. After perusing the testimonies of the PWs and materials available on record, I find that the prosecution has failed to prove the guilt of the accused persons in the present case beyond reasonable doubts for the reasons discussed in the subsequent paragraphs.
16. First and foremost, it should be noted the prosecution did not examine any public witness and only examined the police officials. PW-1 who was the complainant and only eye witness of the present case was also the first investigating officer. The incident happened in a public place in the 7 middle of the day. Thus, it could not be said that no public persons were present at the spot at that time.
17. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
18. However, surprisingly, all the PWs did not explain the reason as to why public witnesses were not examined during the course of investigation. Neither the details of those public persons were brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. 8 They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
19. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere ef- forts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to wit- ness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investi- gation as a citizen, which is an offence under the IPC."9
20. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, un- less corroborated by some independent evidence. The Rule of Prudence, however, only requires a more care- ful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the pros- ecution case. The obvious result of the above discus- sion is that the statement of a police officer can be re- lied upon and even form the basis of conviction when it 10 is reliable, trustworthy and preferably corroborated by other evidence on record."
21. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police offi- cers who conducted the search cannot be disbelieved solely on the ground that no independent and re- spectable witness was examined to prove the search but if it is found -as in the present case -that no at- tempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
22. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
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23. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. He did not give any notice in writing to the public persons to join the proceedings. No satisfactory explanation was provided by the PWs on this aspect.
24. Further, the prosecution did not tender in evidence necessary DD entries to prove the departure of the complainant from the police station and arrival of the police officials from / at the police station. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under:
"Chapter 22 rule 49 Matters to be entered in Regis- ter no. II. The following matters shall amongst others, be entered:-(c) The hour of arrival and departure on duty at or from a police station of all enrolled police of- ficers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on ar- rival or prior to the departure of the officer concerned and shall be attested by the latter personally by signa- ture or seal. Note:- The term Police Station will in- clude all places such as Police Lines and Police Posts where Register No. II is maintained.
25. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been 12 complied by the concerned police witnesses. The relevant entries regarding the departure and arrival of the police officials at the police have not been duly tendered in evidence i.e. proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provi- sions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prose- cution."
26. Since, all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused persons in the present case cannot be ruled out at the instance of the police.
27. Secondly, it is the case of the prosecution that the accused persons were protesting at a public place where restriction order u/s 144 Cr.P.C was in enforce which restricted the gathering of more than 4 persons. PW-1 also deposed on this line. However, a careful perusal of the prohibitory order passed by the concerned ACP Ex. A-1 would show that 13 no such restriction was specifically mentioned in the said order. In fact, it would appear that the said order was incomplete and the restrictions were not properly stated. It would also appear that the said order was copied from somewhere and necessary modification was not carried out. Such negligent act cannot be expected from a senior police official in the rank of ACP. Interestingly, it was the same ACP who had also filed complaint u/s 195 Cr.P.C. It would appear that the concerned ACP had acted in a very casual and mechanical manner.
28. Be that as it may, even if it assumed that gathering of more than 4 persons was prohibited, however, it should be noted that there are only 3 accused persons in the present case. Although, PW-1 had stated that some other persons were also protesting at the spot, however, details of other persons were not disclosed by the PW-1. Even their names were not disclosed. It would be very difficult to understand as to why only three persons were implicated in the present case where there was large gathering. None of the PWs had stated that other persons had fled away from the spot. It would become all the more relevant in light of the fact that no public witnesses were examined. Even photographs or video 14 recording of the protest were not taken. If only three persons were protesting then they could not have violated the order u/s 144 Cr.P.C.
29. Thirdly, it should be the prosecution also failed to prove the fact beyond reasonable doubt that the promulgation of prohibitory order Ex. A-1 was within the knowledge of the accused persons before they gathered at the spot for protesting. Reference can be taken from the decision of the It the Hon'ble Delhi High Court in Bhoop Singh Tyagi vs. State 2002 SCC Online Del 277. It has been observed in that judgment that in order to secure conviction of the accused for the offence under section 188 IPC, it was incumbent upon the prosecution to prove that (i) there was an order promulgated by a public servant, (ii) such public servant was lawfully empowered to promulgate such order, (iii) The accused necessarily had the knowledge of such order directing them to abstain from an act or to take certain order with certain property in their possession or under their management, (iv) The accused have disobeyed the order having its knowledge, (v) Such disobedience caused or tended to cause (a) obstruction, annoyance or injury or risk of it to any person lawfully employed or (b) danger to human life, health and safety.
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30. It may be noted that the word 'promulgate' mentioned in section 188 IPC means "making known to the public, to publish, to officially announce. Form of publication may be different but prosecution has to prima facie indicate by placing some material on record to show that the order had been actually 'promulgated'. Where an order u/s 144 CrPC is not served in the manner prescribed under the law, section 188 IPC shall not be applicable.If an accused does not know that an order has been promulgated, the requirement of the Section are not fulfilled.
31. In the present case, in the FIR, it is not mentioned that accused had knowledge of order promulgated by the ACP Ex. A-1. In the entire charge-sheet, it has not even been asserted that the alleged order was published in the locality where the accused resided. Further, neither in charge-sheet nor during evidence has the prosecution been able to produce any evidence to show that accused had actual knowledge of the aforesaid order promulgated by the ACP concerned before they gathered at the spot.
32. The prosecution has also failed to produce copy of any newspaper etc. wherein such order may have been published. Prosecution also failed to mention the name of the newspaper and date of publication of order in 16 question. It has not even produced any photographs of the said order affixed on any notice board of any of the offices mentioned in the order of the ACP. Thus, there is no evidence produced by the prosecution to show that the notification in question was ever published in any newspaper, affixed on notice boards of any of the offices specified in the order Ex. A-1 or given any publicity in the general public on radio or T.V. It is not stated by the PW-1 that he has given copy of the order to the accused persons when they gathered at the spot. Accordingly, presumption of knowledge of the order Ex. A-1, cannot be attributed to the accused persons.
33. Thus, the prosecution has failed to prove one of the essential ingredients that the accused persons had the knowledge of such order and having its knowledge he had disobeyed the order Ex. A-1, which is essential to secure the conviction of the accused as observed above.
34. Thus, in view of the above, I find that there are many loopholes in the case of the prosecution. No efforts were made to include the public persons in the investigation. The prohibitory order Ex. A-1 was not even properly promulgated or published.
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35. Therefore, in view of the above, I find that while there are suspicions against the accused persons for having committed the offences in the present case, however, the prosecution failed to prove their guilt beyond reasonable doubts. Thus, benefit of doubt is extended to the accused persons.
36. Accordingly, the accused persons namely Himanshu, Mahesh Pahwal and Naren Bhikuram Jain stand acquitted for the offence punishable u/s 188 IPC.
Announced in the open court on 09.01.2026 (Animesh Kumar) JMFC-02, Patiala House Courts It is certified that this judgment contains 18 pages and each page bears my signatures.
(Animesh Kumar) JMFC-02, Patiala House Courts, New Delhi 09.01.2026 18 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date:
2026.01.09 14:38:06 +0530