Delhi District Court
Unknown vs State Of on 12 September, 2012
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Papinder
DD No. 42/10
PS HNDIN
U/s 53/116 D P Act
JUDGMENT
C C No. : 79/10/10
Date of Institution : 14.03.2010
Date of Commission of Offence : 13.03.2010
Name of the complainant : ASI Ayub Khan
Name & address of the accused : Papinder Singh
S/o Late Sh. Bhag Singh
r/o House No. 7/9, Pant Nagar
Double Storey, Jangpura, New Delhi
Offence complained of : U/s 53/116 DP Act
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of reserve for judgment : 31.08.2012
Date of announcing of judgment : 12.09.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 53/116 Delhi Police Act.
State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 2
2. The story of the prosecution is that on 13.03.2010 accused Papinder was found roaming around Birbal park and despite direction issued to him to removed himself from that area, he failed to do so and thereby committed an offence under Section 53/116 DP Act. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused under Section 53/116 DP Act in the court. Notice under Section 53/116 DP Act was framed against the accused vide order dated 05.03.2011 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined two witnesses namely (1) HC Prem Raj and (2) Ct. Rattan Singh.
5. PW-1 HC Prem Raj deposed that on 13.03.2010 he was posted at PS HNDIN as constable. On that day, he along with Ct. Rattan Singh was on patrolling duty in beat area Pant Nagar. He deposed that ASI Ayub Khan called him at Birbal park on telephone. He deposed that one secret informer had told him that the accused namely Papinder was a BC and tadipar. He and Ct. Ratan Singh joined ASI Ayub Khan to arrest the State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 3 accused. They went to Birbal park where ASI Aub Khan apprehended the accused. He proved the order of Tadipar dated 17.09.2009.
6. During cross examination, he deposed that he along with Ct. Rattan Singh left the PP for patrolling at about 8.00 am by foot. He deposed that departure entry was made but he did not remember the DD number. He deposed that ASI Ayub Khan called him at about 9.00 am. He reached at the spot i.e Birbal park within 5-10 minutes. He admitted that the spot was a public place and public movement was present at that time. However, he could not remember whether IO requested the public persons to join the investigation. He denied that the accused had been lifted from outside of Delhi and falsely implicated in this case. He denied that all the proceedings took at the directions of senior officers. He deposed that the IO gave the information of arrest of the accused to his mother.
7. PW-2 Ct. Rattan Singh deposed that on 13.03.2010 he was posted in PP Jangpura PS HNDIN as constable. He deposed that on that day he along with Ct. Prem Raj were on patrolling duty at Beat Jangpura. He deposed that during patrolling one ASI namely Ayub Khan met him. During the State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 4 patrolling one secret informer came and informed that he had seen the BC namely Papinder present in the area. Accused Papinder was tadipar from Delhi by the order of DCP for six months. On that information, he went to the Birbal park where accused was found and arrested. He proved the arrest memo Ex. PW1/A and personal search memo Ex. PW1/B. IO recorded his statement.
8. During cross examination he deposed that they left the PP for patrolling at about 8.00 PM by foot, however, he could not recall the departure entry. He deposed that he did not remember the telephone number from which he made call to ASI Ayub Khan. He deposed that ASI Ayub Khan came to the spot on bike. He admitted that the spot was a public place and public movement was present at that time. He deposed that IO requested the public persons to join the investigation but none agreed. He deposed that no written notice was given to the public persons who refused to join the investigation and also refused to give their names and addresses. He denied that the Papinder was not present in Delhi at the time of arrest and was arrested from outside the Delhi. He deposed that the information of the arrest of the accused was given to the mother of State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 5 the accused. He along with accused went to the medical examination of the accused at about 10.00 PM, after which he along with the accused went to the spot. Again said, they went to the PS after medical examination and spot was in the way from hospital to the spot. He denied that the written proceedings were done at the PS.
9. Name of ASI Ayub Khan was dropped from the list of witnesses as he had expired.
10.Thereafter PE was closed. Statement of accused was recorded wherein the accused pleaded innocence but did not lead any evidence in his defence.
11.I have heard the arguments addressed by the Ld APP for the state and by the Legal Aid Counsel for the accused. I have gone through the documents on record carefully.
12.Before recording the findings of the court, let us discuss the relevant provisions of law for the purpose of this case. Section 53 DP Act 1978 provides for procedure on failure of a person to leave the area and his entry therein after removal. It says that if a person to whom the direction has been issued under Section 46, Section 47 or Section 48 of DP Act State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 6 from the police or any party thereof and he -
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.
13.Further Section 116 DP Act provides the penalty for entry without permission in the area from which such a person was directed to remove himself, or overstaying when permitted to return temporarily. If the person in contravention of direction issued to him under Section 46, 47 or 48 enters or return without permission to Delhi or from the part he was directed to removed himself from shall be convicted for punishment not less than six months extendable up to two years and also fine.
14.In the case at hand, the accused was directed by the Assistant Police Commissioner under Section 47 of the DP Act to remove himself beyond the limits of NCT of Delhi for a period of six months starting from State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 7 17.09.2009. However, the accused was found roaming around the Birbal park in Delhi on 13.03.2010. He was directed to remove himself from that area but he failed to do so and hence he was charged for the offence punishable under Section 53/116 DP Act.
15.From the overall testimony of the witnesses, it is seen that the IO has not joined any public witness. Infact, not even an effort was made to join the public witnesses. Admittedly, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were present. All the witnesses examined are police witnesses. This casts doubt about the sincere efforts made by the IO to join independent witnesses.
16.In Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. The Section 100(4) CrPC provided that " before making a State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 8 search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do" . The IO have failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation.
17. However, in the statement of accused under Section 313 Cr.P.C, he himself has stated that he was arrested from his home. Admittedly, the house of accused is within the territorial jurisdiction of Delhi. Hence it is clear that despite directions of the Assistant Police Commissioner dated 17.09.2009, the accused remained in his house in Delhi only. As such, he committed an offence punishable under Section 53/116 DP Act.
18.I am of the opinion that prosecution has proved the guilt of the accused beyond reasonable doubt that he was roaming in the area of Delhi despite the order of Assistant Commissioner of Police. Accordingly, the State v. Papinder U/s 53/116 DP Act DD No. 42/10 , PS HNDIN 9 accused is held guilty and convicted on charge u/s U/s 53/116 DP Act in the present matter.
19.List for argument on sentence.
Announced in the open court (SAUMYA CHAUHAN)
on 12.09.2012 METROPOLITAN MAGISTRATE
SOUTH EAST, SAKET COURTS, NEW DELHI
State v. Papinder U/s 53/116 DP Act
DD No. 42/10 , PS HNDIN