Delhi District Court
State vs . Sumit on 31 August, 2022
IN THE COURT OF MS. RAJANI RANGA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE 01, TIS HAZARI COURT, CENTRAL :
DELHI.
State Vs. Sumit
FIR No. 408/2021
PS: Paharganj
Registration No. 12680/2021
JUDGMENT
(a) Sr. No. of the case 12680/2021
(b) Date of offences 15.10.2021
(c) Complainant ASI Shyam Sunder
(d) Accused Sumit S/o Sh.T.Singh R/o H.No. 26/178,
West Patel Nagar, New Delhi.
(e) Offence Under Section 188 of The Indian Penal
Code, 1860.
(f) Plea of accused person Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of institution 23.11.2021
(i) Date when judgment was31.08.2022
reserved
(j) Date of judgment 31.08.2022
FIR No. 408/2021 State Vs. Sumit Page 1 of 14
ACMM-01(Central)
1. Vide this judgment; I shall decide the final outcome in the FIR No. 408/2021, registered at Police Station, Paharganj, wherein alleging the commission of the offence punishable under section 188 of The Indian Penal Code, 1860 (shall be referred to as 'IPC' in short).
PROSECUTION CASE
2. The prosecution case, in brief, is that on 15.10.2021 at around 7:00 pm, accused was found employing one Sh. Pankaj Meena as teh worker/servant in a furniture shop bearing no. 5466, Sora Khoti, Paharganj, Delhi without furnishing his particulars to the Station House officer of PS: Paharganj and he thereby found disobeying the order promulgated by the ACP bearing no.20882150/ACP/ Paharganj, dated 03.09.2021 and committing an offence punishable under section 188 IPC. Hence, instant FIR was registered.
3. Investigation was conducted. Upon completion of investigation, chargesheet was filed in the Court on 23.11.2021, against accused for the alleged commission of the offence punishable under section 188, IPC alongwith a complaint under section 195 of The Code of Criminal Procedure, 1973 (shall be referred to as CrPC) made by FIR No. 408/2021 State Vs. Sumit Page 2 of 14 ACMM-01(Central) the ACP, SubDivision: Paharganj, Delhi. Four witnesses were cited to be examined to prove its case by the prosecution.
4. On 17.08.2022, cognizance of offence was taken and the accused person was summoned. Accused put in an appearance in the Court. Copy of chargesheet was supplied to him.
NOTICE
5. On 29.08.2022, notice in terms of section 251 CrPC was served upon the accused person for the alleged commission of the offence punishable under sections 188 IPC, to which he pleaded not guilty and claimed trial. Therefore, further proceedings were carried out to record the evidence of prosecution.
ADMISSION AND DENIAL STATEMENT OF THE ACCUSED IN TERMS OF PROVISION OF SECTION 294 CrPC
6. The accused person has not disputed the genuineness of the instant FIR Ex.A1, endorsement on rukka Ex.A2, certificate under Section 65B of Indian Evidence Act marked as Ex.A3, site plan Ex.A4, GD no. 46A, Ex.A5, notice, u/s 41A Cr.P.C Ex.A6, complaint U/s 195 Cr.P.C, Ex.A7 and notification No.2088 2150/ACP/Paharganj, dated 03.09.2021, Ex.A8 and his statement FIR No. 408/2021 State Vs. Sumit Page 3 of 14 ACMM-01(Central) U/s 294 Cr.P.C. was recorded to this effect. Therefore, the name of DO/HC Ram Tirath, who was the duty officer and registered the instant FIR was dropped from the list of witnesses.
WITNESSES EXAMINED BY THE PROSECUTION
7. ASI Shyam Sunder as was examined as PW1, Ct. Ramjeet Sin as PW2 and Sh. Pankaj Meena as PW3. Prosecution evidence was closed.
STATEMENT OF THE ACCUSED PERSON
8. Statement of the accused person has been recorded in terms of provisions of section 313, Cr.P.C. He stated that he is innocent and he was not having any knowledge about the issuance/promulgation of any order regarding the verification of tenant/servant issued by the ACP. He opted not to lead evidence.
FINAL ARGUMENTS
9. Final arguments have been heard. Records have been perused and considered.
10.The ld. APP for the State has submitted that the prosecution has successfully proved its case against the accused beyond reasonable doubt as the violation of the said order, EX.A8, by FIR No. 408/2021 State Vs. Sumit Page 4 of 14 ACMM-01(Central) accused has been proved beyond reasonable doubt and accused is liable to be convicted in this case.
On the other hand, ld counsel for accused, in crux, has submitted that the accused was not having actual knowledge of the promulgation of the said order, Ex.A8, and that he has been falsely implicated. Ld counsel for accused has pleaded for the acquittal of accused.
PROSECUTION EVIDENCE
11.Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the prosecution witness.
12.As deposed by the PW1/ASI Shyam Sunder, he alongwith Ct. Ramjeet Singh was on patrol duty on 15.10.2021 and that when at around 7:00 pm, they reached at furniture shop no. 5466, they found the said Sh. Pankaj Meena working in the said shop. That on inquiry from him, he disclosed the name of accused as the owner of the said shop who had appointed him as servant in the said shop where he was working for the last two years. That he also inquired FIR No. 408/2021 State Vs. Sumit Page 5 of 14 ACMM-01(Central) the accused who had also disclosed that he had appointed Sh.Pankaj Meena on the said shop and has not got his police verification done. He prepared a rukka, Ex.PW1/A and got the instant FIR registered through Ct. Ramjeet Singh as the accused was found disobeying the order promulgated by the ACP bearing no.20882150/ACP/Paharganj, dated 03.09.2021, Ex.A8. That after the registration of FIR, he prepared the site plan, Ex.A4, and served a notice U/s 41A Cr.P.C, Ex.A6 and bound down the accused vide Ex.PW1/B. He also received the complaint u/s 195 CrPC, Ex.A7 from the ACP concerned.
13. The PW2/Ct Ramjeet Singh testified that he was on patrol duty with ASI Shyam Sunder and got the instant FIR registered.
14.As deposed by the PW3/Sh.Pankaj Meena, on 15.10.2021, he was working in the said furniture shop of accused and his police verification was not done by the accused.
RELEVANT LAW AND PROVISIONS
15."Section 188 IPC : Disobedience to order duly promulgated by public servant.--
FIR No. 408/2021 State Vs. Sumit Page 6 of 14ACMM-01(Central) Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"FIR No. 408/2021 State Vs. Sumit Page 7 of 14
ACMM-01(Central) EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE:
16.The entire case of the prosecution is based on the allegations that accused has violated the said order, Ex A8, in as much as he has failed to submit the particulars of said Sh. Pankaj Meena, who allegedly was appointed by him as servant on his said shop, to the SHO concerned.
17.Relevant portion of the order dated, 3.9.2021, Ex.A8, reads as under:
"3.Now, therefore, I, Om Parkash Lekhwal, Assistant Commissioner of Police, SubDivison, Paharganj in exercise of power conferred upon me by virtue of section 144 criminal procedure code, 1973 (No. 2 of 1974) read with Govt. of India, Ministry of Home Affairs, New Delhi's Notification no. U11036(i) UTL, dated 09.09.2010, do hereby order that no landlord/owner of shops, restaurant, hotels, guest house and any kind of business which falls under the jurisdiction of Sub Division Paharganj, appoint servant to any person unless and until he has furnished the particulars of the said servant to the Station House Officer of the Police Station concerned.FIR No. 408/2021 State Vs. Sumit Page 8 of 14
ACMM-01(Central)
4. This order shall come into force w.e.f 03.09.2021 and shall remain in force for a period of 60 days up to 01.11.2021(both days inclusive) unless withdrawn earlier.
5.Any person contravening this order shall be liable to be punished in accordance with the provision of Section 188 of the Indian Penal Code: and
6.As the notice cannot be served individually on all concerned, the order is hereby passed exparte. It shall be published for the information of the public through the press and by affixing copies on the notice boards of the offices of all DCsP, Addl. DCsP and ACsP, Tehsil offices, all Police Stations concerned and offices of NDMC & MCD".
18.As submitted by the ld LAC for the accused, the promulgation of the said order, Ex.A8, was not in the knowledge of the accused. It would be apt to note the authoritative pronouncement made by the Hon'ble Delhi High Court in Bhoop Singh Tyagi v. 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 FIR No. 408/2021 State Vs. Sumit Page 9 of 14 ACMM-01(Central) 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.
19.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 shall not be applicable. If an accused does not know that an order has been promulgated, the requirement of the Section are not fulfilled.
FIR No. 408/2021 State Vs. Sumit Page 10 of 14ACMM-01(Central)
20. No evidence has been produced to prove that order, Ex.A8 was published or publicized in the locality where the accused resided. Further, neither in the chargesheet 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.
21.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 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.A8 or given any publicity in the general public on radio or T.V. Accordingly, presumption of knowledge of the order, Ex.A8, cannot be attributed to the accused.
22.Further, a bare perusal of the said order, Ex.A8, reveals that the said order had prohibited the appointment of a servant unless and FIR No. 408/2021 State Vs. Sumit Page 11 of 14 ACMM-01(Central) until his particulars have been furnished to the SHO, PS:concerned and the said order was inforce w.e.f 3.9.2021 upto 1.11.2021. The language of the said order indicates that the said order was prospective in nature and prohibited the appointment of any person as servant without first furnishing his particulars to the SHO for his verification w.e.f 3.9.2021 upto 1.11.2021 and not the already existing appointment of a servant on the day of its coming into force.
23.As per the case of the prosecution and as deposed by PW1/complainant, the said Sh. Pankaj Meena was working as servant on the said shop on 15.10.2021 for the last 2 years i.e since the year 2019. Thus, the said order, Ex.A8, which came inforce w.e.f 3.9.2021 upto 1.11.2021 was not applicable to the already existing employment of said Sh. Pankaj Meena as servant by the accused. As the said order, Ex.A8,was not so applicable to the already existing employment of said Sh. Pankaj Meena as servant by the accused, no question of its disobedience by the accused arises.
FIR No. 408/2021 State Vs. Sumit Page 12 of 14ACMM-01(Central)
24.In view of the above discussion, it is observed that the prosecution has failed to prove its case against the accuse and the disobedience of the said order, Ex.A8, by the accused.
25.It is cardinal principle of law that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the case of the prosecution should stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
26. In view of the above examination of the evidence and the material available on record, it is observed that the prosecution has failed to FIR No. 408/2021 State Vs. Sumit Page 13 of 14 ACMM-01(Central) prove the guilt of the accused person beyond reasonable doubt. Therefore, the accused person, namely, Sumit, is hereby acquitted.
27.Bonds accepted in terms of provision of section 437A Cr.P.C, 1973, shall remain in force for six months from today.
Announced in the open Court today i.e. on 31.08.2022.
Digitally
signed by
RAJANI
RAJANI RANGA
RANGA Date:
2022.08.31
11:56:16
+0530
(RAJANI RANGA)
ACMM01(CENTRAL)/THC/DELHI
31.08.2022
FIR No. 408/2021 State Vs. Sumit Page 14 of 14
ACMM-01(Central)