Delhi District Court
State vs . Sanjeev Kumar on 12 February, 2016
IN THE COURT OF SH. DHEERAJ MITTAL, MM03,
PATIALA HOUSE COURTS, NEW DELHI
State Vs. Sanjeev Kumar
DD No. 17A dated 10.03.2011
PS Tughlak Road
U/s 28/112 Delhi Police Act, 1978
1. Serial No. of the case : 108/3/14
2. Date of commission of offence : 10.03.2011
3. Name of the complainant : SI Gaurav Gupta
4. Name of the accused
& his parentage : Sanjeev Kumar,
S/o Sh. R.S. Yadav.
R/o H.No. 794, GH587, Meera Bagh,
Paschim Vihar, Delhi.
5. Date when judgment was : 20.01.2016
reserved.
6. Date when judgment was : 12.02.2016
pronounced.
7. Offence complained of : u/s 28/112 Delhi Police Act
or proved.
8. Plea of accused : Pleaded not guilty.
9. Final Judgment : Accused is acquitted.
DD No.17A dated 10.03.11 PS Tughlak Road State Vs. Sanjeev Kumar
Brief statement of reasons for decision of the case:
1. The allegations in brief against the accused are that on 10.03.2011 at about 03:30 PM at Race Course Club, within the jurisdiction of PS Tughlak Road, accused was running a Dhaba / Eating House in the name and style of "S.K. Dhaba" without obtaining any licence u/s 28 (1) (za) of the Delhi Police Act, 1978 and thereby committed offence u/s 28/112 Delhi Police Act. The kalandra u/s 28/112 Delhi Police Act was prepared and was filed in the Court by IO SI Gaurav Gupta.
2. Accused was summoned by the Court after taking cognizance of the offences. The provisions of section 207 Cr.P.C were complied with and the copies were supplied to the accused. On the basis of material on record, notice for the offence u/s 28/112 Delhi Police Act was served upon the accused. The accused pleaded not guilty and claimed trial and therefore, the matter was fixed for prosecution evidence.
3. In the prosecution evidence, the prosecution has examined complainant / IO / PW1 SI Gaurav Gupta. PW1 deposed in the Court that on 10.03.11, he was posted as SI at PS Tughlak Road and on the said date at about 03:30 PM, he was on patrolling duty in the area of Race Course, New Delhi. He found there one Dhaba in the name and style of M/s S.K. Dhaba which was being run by the accused Sanjay Kumar and when accused was asked to produce relevant licence, he failed to produce the same and therefore, the present kalandra u/s 28/112 D.P. Act was prepared against the accused. He further deposed at that time, Ct. Vinod DD No.17A dated 10.03.11 PS Tughlak Road State Vs. Sanjeev Kumar was him.
The PW1 was crossexamined by the Ld. Counsel for the accused. In the crossexamination, the witness stated that he has not recorded the statement of Ct. Vinod. It is a matter of record that the prosecution has not examined Ct. Vinod as a prosecution witness. The witness further stated in his crossexamination that no photographs of the Dhaba were taken.
4. After completion of prosecution evidence, the statement u/s 313 r/w 281 Cr.P.C has been recorded wherein incriminating evidence on record was put to the accused. Since the accused preferred not to lead defence evidence, the matter was fixed for final arguments.
5. I have heard final arguments from the Ld. APP for the State as well as Ld. Counsel for the accused and perused the entire case file.
It has come on record that the prosecution has failed to produce the relevant DD entry on record vide which IO SI Gaurav Gupta was on patrolling duty in the said area where the alleged Dhaba was being run by the accused. PW1 had stated that at the time of alleged incident Ct. Vinod was him, however, it is a matter of record that Ct. Vinod has neither been made witness in the kalandra nor he has been examined in the Court. PW1 has also admitted that he has not taken any photograph of the alleged Dhaba. It may be noted that in the kalandra Ex.PW1/A, it has been mentioned that the said person / accused was acting as a Manager and was sitting on the counter of the alleged Dhaba. However, it is a matter of record that the IO had made no efforts to inquire about the owner of the Dhaba. It is settled proposition of law that only the DD No.17A dated 10.03.11 PS Tughlak Road State Vs. Sanjeev Kumar proprietor / owner of the eating house who run the eating house without any valid licence can be challaned for the offence u/s 28/112 D.P. Act. Manager / servant / agent working at the given place can not be challaned. In this regard judgment of Hon'ble High Court of Delhi in case titled as Janak Raj Vs. State NCT of Delhi & Ors. DoD 03.08.12 in the Crl. MC No. 312/12 is noteworthy. It is further noted that in the present case, the IO and the complainant is one and the same person i.e SI Gaurav Gupta.
6. In view of these facts and circumstances, it may be said that the prosecution has failed to prove the charge against the accused beyond reasonable doubt and therefore, the accused Sanjeev Kumar is acquitted of offence punishable u/s 28/112 Delhi Police Act. Announced in the open Court (DHEERAJ MITTAL) on this 12 day of February, 2016 th MM03/PHC/NDD/ New Delhi DD No.17A dated 10.03.11 PS Tughlak Road State Vs. Sanjeev Kumar