Delhi District Court
State vs . Mahesh Kumar on 25 June, 2015
State Vs. Mahesh Kumar
FIR No. 47/12
PS Domestic Airport
IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
FIR No. 47/12
PS Domestic Airport
U/S : 4 DPT & M Act
State V/s Mahesh Kumar
C/No. 75/02
U.ID No. 02405R0364422013
Date of Institution: 13.11.2013
Name of the Complainant SI Harkesh Gaba
Name and address of accused Mahesh Kumar
s/o Sh. Rameshwar Lal
r/o T190, East Mehram Nagar,
Delhi.
Charge framed against accused U/S 4 DPTM Act
Plea of accused Pleaded not guilty
Final Order Convicted
Date for announcing the orders 25.06.2015
The brief facts and pre trial procedure
1.Charge U/S 4 DPTM Act was framed against the accused that on 14.11.2012 at about 8.10pm, opposite to 1B, Departure of Domestic Airport, at general car parking, within the jurisdiction of Domestic Airport the accused was found alluring the passengers coming from the arrival hall to provide them hotels at cheap rate and taxi service at concession due to which the passengers were getting annoyed and thereby the accused committed an offence punishable under Section 4 Delhi Prevention of C/No. 75/02 Page No. 1 U.ID No. 02405R0364422013 State Vs. Mahesh Kumar FIR No. 47/12 PS Domestic Airport Touting and Malpractices against Tourists Ordinance Act, 2010 to which he pleaded not guilty and claimed trial.
Trial
2. To prove the charges, prosecution cited 3 witnesses in the list of witnesses and all were examined. PE stood closed on 25.06.2015. Thereafter, statement of accused U/S 313 CrPC was recorded in which accused pleaded his innocence. No defence evidence was led by accused.
3. PW1 HC Ramanand deposed that he was the Duty Officer at the relevant time who proved the FIR no. 47/12 as Ex. PW1/A and he also made his endorsement Ex. PW1/B on the rukka.
4. PW2 Ct. Somveer deposed that on 14.11.2012 he was posted at PS Domestic Airport at Constable. On that day, he was on duty at Terminal 1 B Departure from 07.00 PM to 08.00 AM. At about 8.15PM one person namely Mahesh Kumar was apprehended by him with the help of SI Harkesh Gaba, who came there on patrolling. Mahesh Kumar was alluring the passengers on the pretext of providing hotel on low fare and cheap taxi service. He had requested him not to do so but he did not pay any heed. SI Harkesh Gaba prepared a tehrir and sent him to the PS for registration of the case. He went to the PS and got the present case registered through DO and returned back to the spot and handed over the original tehrir and computerized copy of FIR to the IO. Accused was arrested vide arrest memo Ex.PW2/A. IO prepared the site plan and accused was released on bail. His statement was recorded by the IO. PW2 correctly identified the accused.
In his cross examination he stated IO had taken his signatures on C/No. 75/02 Page No. 2 U.ID No. 02405R0364422013 State Vs. Mahesh Kumar FIR No. 47/12 PS Domestic Airport two papers. He affirmed the suggestion that there CC TV cameras are installed. He denied the suggestion that accused was not alluring the passengers. He further denied the suggestion that accused has been falsely implicated in the present case.
5. PW3 SI Harkesh Gaba deposed that on 14.11.2012, he was posted at PS Domestic Airport as SI. On that day, he was on patrolling and checking duty in the area and at about 8.10pm, when he was at terminal 1B, opposite general taxi stand, he noticed that one person was alluring the passengers/tourists on the pretext of providing them cheap taxi service and hotels on discounted rates. The passengers/tourists were getting annoyed due to his conduct. He went to that person and requested him to desist from his conduct but he did not pay any heed to his request. In the meantime, Ct. Sombir who was on duty at Terminal 1B also arrived there. He with the help of Ct. Sombir apprehended that person, whose name on inquiry was revealed as Mahesh Kumar. He requested some passengers to join in the proceedings but none agreed. He prepared rukka Ex.PW3/A and sent Ct. Sombir to PS for registration of FIR. After registration of FIR, Ct. Sombir came back at the spot and handed over to him original rukka and computerized copy of FIR. He arrested Mahesh Kumar vide arrest memo Ex.PW2/A and prepared site plan Ex.PW3/B. Accused was released on bail. He recorded the statement of Ct. Sombir and after completion of investigation he prepared challan and filed the same in the Court. PW3 correctly identified the accused.
C/No. 75/02 Page No. 3U.ID No. 02405R0364422013 State Vs. Mahesh Kumar FIR No. 47/12 PS Domestic Airport In his cross examination he stated that he tried to note down the name of the passengers but they refused to give their names and addresses. He further stated that no notice was served upon the passengers who refused to give their names and addresses. He affirmed the suggestion that there CC TV cameras are installed. He stated that he has not taken the CC TV footage. He denied the suggestion that accused was not alluring the passengers in his presence. He denied the suggestion that he had called accused in the PS and he has been falsely implicated in the present case. He affirmed the suggestion that he carried the proceedings in the present case at his own.
Statement of accused and defence
6. After closure of prosecution evidence, the statement of accused person U/S 313 CrPC was recorded. When all the incriminating evidence was put to the accused person to afford him an opportunity to explain the circumstances so put to him, but did not offer a shred of evidence to prove his innocence except by saying that he is innocent and he has been falsely implicated. Further accused person did not lead any defence evidence in support of his claim of innocence.
Arguments and appreciation of evidence in the light of legal propositions
7. During the course of arguments, Ld. Counsel for accused has submitted that the case of the prosecution should not be believed as IO of the case is complainant himself. Ld. Counsel has further submitted that it is not in accordance with principles of natural justice that a complainant himself investigate the case and files the charge sheet against a person. Ld. Counsel has further submitted that despite airport being a busy place, no C/No. 75/02 Page No. 4 U.ID No. 02405R0364422013 State Vs. Mahesh Kumar FIR No. 47/12 PS Domestic Airport public persons have been made witnesses to the proceedings carried out by the IO. It is further argued that despite CC TV installed on all the places in the airport, no footage has been filed by way of evidence showing the accused was alluring or soliciting the passengers.
8. On the other hand Ld. APP for the State submitted that there is enough evidence against the accused and there is no legal bar that a complainant cannot become the IO of the case.
9. I have given my thoughtful consideration to the submissions advanced by both sides. This case was registered against the accused for offence u/s 4 Delhi Prevention of Touting and Malpractices against Tourist Act, 2010. The accused is a TSR driver and was soliciting and alluring the passengers outside the arrival hall and as per the prosecution case accused was alluring the passengers outside arrival hall by saying that he will ferry them in a cheap rate and also provide site scene and also trying to keep the baggages of the passengers in his TCR despite the passengers were not interested going with him. PW3 is the IO of this case supported the prosecution version and entirety. In his cross examination he stated that he asked the public persons to join investigation but everyone refused. He further stated that he asked the passenger who was being bullied by the accused but he also refused to divulge his personal information. PW2 who was with the IO on the day of offence also supported the prosecution case. In his cross examination he stated that name and address of the passengers were not noted by the IO who was being bullied by the accused. It is in knowledge of everyone that in airport outside arrival hall several unscrupulous TSR and cab driver allure the passengers of cheap hotel, low C/No. 75/02 Page No. 5 U.ID No. 02405R0364422013 State Vs. Mahesh Kumar FIR No. 47/12 PS Domestic Airport fare and other benefits and most of the cases TSRs do not have registration with the PrePaid Taxi Booth. It is also common that generally passengers do not want to become witness to any legal proceedings and they avoid becoming witnesses or even complain so as to prevent further harassment of them in legal proceedings. The complainant in these cases are policemen who have the duty to prevent touting at these places. Nowhere the law prevents a policeman to become complainant or competent witness. A policeman is as competent a witness as any other person and where the testimony of policeman is reliable and trustworthy and plausible explanation is given by the police for not making any public person as witness, the testimony can be relied upon. Considering the handicaps of the policeman in these cases and the evidence on record, this court is convinced that accused has committed the offence u/s 4 Delhi Prevention of Touting and Malpractices against Tourist Act, 2010. It is not very uncommon that Public persons are generally reluctant to join as a witness and appear before the court as a witness. In State of U.P. Vs Anil Singh, 1988 Supp SCC 686, it is observed that "it is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable". Even otherwise if the evidence on record is sufficient to nail the accused, the same does not become tainted by reason of absence of any public person as witness.
Conclusion
10. In the light of the aforesaid facts, this court is of the considered view that nothing favourable could be brought by the counsel for the accused during the cross examination of the witnesses and prosecution has firmly established its case against the accused beyond the shadows of doubt. In C/No. 75/02 Page No. 6 U.ID No. 02405R0364422013 State Vs. Mahesh Kumar FIR No. 47/12 PS Domestic Airport view of the aforesaid, this court is of the view that accused committed the offence u/s Delhi Prevention of Touting and Malpractices against Tourist Act, 2010. and accused is accordingly convicted for the same.
Copy of the order be given to the convict free of cost. Order on sentence will be pronounced after hearing the convict.
Announced in the Open Court (DR. PANKAJ SHARMA)
today on this 25th day of June 2015 MM 01: Dwarka : Delhi
C/No. 75/02 Page No. 7
U.ID No. 02405R0364422013