Delhi District Court
State vs . Yogesh on 23 July, 2022
IN THE COURT OF MS. RAJANI RANGA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE 01, TIS HAZARI COURT, CENTRAL :
DELHI.
State Vs. Yogesh
FIR No. 100/2021
PS: Paharganj
Registration No. 3613/2021
JUDGMENT
(a) Sr. No. of the case 3613/2021
(b) Date of offences 13.04.2021
(c) Complainant HC Raj Kumar
(d) Accused Yogesh S/o Sh. Prahlad R/o H.No. 5274,
Bharat Nagar, Paharganj 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 08.03.2022
(i) Date when judgment was23.07.2022
reserved
(j) Date of judgment 23.07.2022
FIR No. 100/2021 State Vs. Yogesh Page 1 of 13
1. Vide this judgment; I shall decide the final outcome in the FIR No. 100/2021, 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) against accused Salman.
PROSECUTION CASE
2. The prosecution case, in brief, is that on 13.04.2021, at around 10:30 pm, ASI Raj Kumar alongwith Ct.Anil, was on patrolling duty and when they reached at 8/8, plot no.8, Block no.8, DBG Road, Paharganj, Delhi, within the jurisdiction of PS: Paharganj, they found that the accused had kept open his Dominoz Pizza Restaurant at the said address during night curfew and he thereby disobeyed the order no.11671250/ACP/Paharganj, dated 06.4.2021, promulgated under Section 144 of The Code Of Criminal Procedure, 1973 (shall be referred to as 'CrPC' in short) by ACP, Paharganj, Delhi. Hence, the instant FIR was registered.
3. Investigation was conducted. Upon completion of investigation, chargesheet was filed in the Court on 08.03.2022, against the accused for the alleged commission of the offence punishable under section 188, IPC. Three witnesses were cited to be examined to prove its case by the prosecution.
FIR No. 100/2021 State Vs. Yogesh Page 2 of 134. On 06.06.2022, 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 02.07.2022, 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 admitted the registration of the instant FIR, endorsement on rukka, certificate section 65B of The Indian Evidence Act 1872, arrest memo, bail bond, Ddno.0001A, dated 14.04.2021, disclosure statement, complaint u/s 195 CrPC and order dated 06.04.2021, marked as Ex.A1, Ex.A2, Ex.A3, Ex.A4, Ex.A5, Ex.A6, Ex.A7 & ExA8 respectively. Therefore, the name of DO/HC Vir Singh, who was the duty officer and registered the instant FIR and Ct. Anil were dropped from the list of witnesses.
WITNESSES EXAMINED BY THE PROSECUTION FIR No. 100/2021 State Vs. Yogesh Page 3 of 13
7. ASI Raj Kumar was examined as PW1 and prosecution evidence was closed on 23.07.2022.
STATEMENT OF THE ACCUSED PERSON
8. Statement of the accused person has been recorded in terms of provisions of section 313, CrPC. He stated that he is innocent and he was not having any knowledge of the promulgation/announcement of the said order, Ex.A8, regarding the imposition of night curfew. He also stated that announcement was not made in his presence and hearing. He opted not to lead evidence.
FINAL ARGUMENTS
9. Final arguments have been heard. Records have been perused and considered.
10.The learned APP for the State (substitute) has submitted that the prosecution has successfully proved its case against the accused beyond reasonable doubt as the disobedience of the said order, Ex.A8, by accused has been proved beyond reasonable doubt and accused is liable to be convicted in this case.
On the other hand, learned Counsels for accused, in crux, has vehemently argued that the accused was not having any knowledge of the promulgation/announcement of the said order,Ex.A8, and that he has been falsely implicated. It has been submitted that when the FIR No. 100/2021 State Vs. Yogesh Page 4 of 13 accused was not having any knowledge of the promulgation of the order, Ex.A8, he cannot be convicted. It has also been submitted that no announcement was made in the presence and hearing of the accused. The learned Counsel has pleaded for the acquittal of the 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 Raj Kumar, on 13.4.2021, he alongwith Ct. Anil was on patrolling duty and found that accused had kept his said Restaurant open during the night curfew and he thereby disobeyedthe order no.11671250/ACP/Paharganj, dated 06.04.2021, Ex.A8. That the announcement of the said order, Ex.A8, had already been made in the said area. Therefore, he prepared the rukka, Ex.PW1/A, and got the instant FIR registered through Ct. Anil. He prepared site plan Ex.PW 1/B, arrested the accused vide Ex.A4, recorded his disclosure statement Ex.A7, and released him on police bail. He filed the chargesheet in the Court.
During his cross examination by the learned Counsel for accused, he stated that there was no public witness as it was night FIR No. 100/2021 State Vs. Yogesh Page 5 of 13 curfew. He admitted that the he clicked the photographs with his mobile phone but the same were not placed on record as were misplaced. No CCTV footage was stated to be available. He denied that the said restaurant was not opened on the alleged date and time and that accused has been falsely implicated.
RELEVANT LAW AND PROVISIONS
13."Section 188 IPC : Disobedience to order duly promulgated by public servant.--
"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 FIR No. 100/2021 State Vs. Yogesh Page 6 of 13 knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
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EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE AND BRIEF REASONS FOR DECISION:
14.In the instant case, the prosecution has alleged disobedience by the accused of the said order, no.11671250/ACP/Paharganj, dated 06.04.2021, promulgated by ACP, SubDivision, Paharganj, Ex.A8.
15.Relevant portion of the order dated, 06.04.2021, Ex.A8, reads as under:
3. Now therefore, in exercise of the power conferred upon me by section 144 criminal procedure code, 1973 (No.2 of 1974) read with Govt. of India, Ministry of Home Affairs and New Delhi's Notification no. U11036/3/1978 (1) UTL, dated 01.07.1978, I,Om Parkash Lekhwal, Asstt. Commissioner of Police, Sub Division Paharganj, Central District, Delhi promulgate that there shall be night curfew on movement of individuals (except for exemptions in para 4) in the whole jurisdiction of SubDivision, Paharganj, (All jurisdictional area of PS Pahar Ganj, Nabi Karim and DBG Road) Central District, Delhi) with immediate effect from 10:00PM to 05:00AM till 30.04.2021 and further orders, which ever is earlier for maintaining public health, public safety and public.FIR No. 100/2021 State Vs. Yogesh Page 7 of 13
4. Following categories of individuals are exempted from the above restriction:
(a)xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx
(g) Movement of persons related to commercial and private establishments providing following essential services/ commodities shall be allowed.
I. Shops, dealing with foods, groceries, fruits & vegetables, dairy & milk booths, meat & fish, animal fodder, pharmaceuticals and medical equipments.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
5. The movement of the individuals specified above in para4 (g) & 4 (h) shall be allowed only with the possession of epass (in soft or hard copy), which can be obtained by applying on the website www.delhi.qov.in.
6.xxxxxxxxxxxxxxxxx
7. Anybody violating these instructions will be punishable under the section 188 of Indian Penal Code (48 of 1860) and will be strictly penalize. These instructions must be followed very scrupulously.
As the notice cannot be served individually on all concerned, the order is, hereby, passed exparte. It shall be published for the information of public through press and affixing copies on the Notice Board's of the offices of all DCsP, Addl. DCsP, ACsP all FIR No. 100/2021 State Vs. Yogesh Page 8 of 13 Police Stations and offices of the New Delhi Municipal Corporation, North Delhi Municipal Corporation, East Delhi Municipal Corporation, South Delhi Municipal Corporation, Public Works Department, Delhi Development Authority and Delhi Cantonment Board.
This order shall come into force with effect from 06.4.2021 and shall remain in force upto 30.4.2021 (both days inclusive)."
16.So far as the power of the ACP, Subdivision, Pahar Ganj, to promulgate the aforesaid order is concerned, the same is not in issue.
17.As submitted by the ld counsel for he accused, the promulgation of the said order, Ex.A8, was not in 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 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 FIR No. 100/2021 State Vs. Yogesh Page 9 of 13 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.
18.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.
19.In the present case, in the FIR, it is not mentioned that accused had knowledge of order promulgated by the ACP, Ex.A8. In the entire chargesheet, it has not even been asserted that the alleged order was published or publicized in the locality where the accused resided. Further, neither in 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. As deposed by PW1, announcement of the said order was made in the area in which the said shop was situated. But there is no evidence that the announcement was made inn the presence FIR No. 100/2021 State Vs. Yogesh Page 10 of 13 and hearing of the accused. Ld Counsels for accused have also stated that announcement was not made in his presence and hearing of the accused . The time and date when the announcement was so made neither has been mentioned in the chargesheet nor deposed by any of the witnesses.
20.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.
21.Further, plain reading of the portion of aforenoted order shows that the movement of persons providing essential service/commodities like shops dealing with food was exempted from the night curfew on the possession of requisite epass. The prime witness has not deposed that the accused was not having epass or that he did not produce the epass. As per the allegations made, the accused had FIR No. 100/2021 State Vs. Yogesh Page 11 of 13 opened the said shop during night curfew. The selling of food was covered under the essential commodities and exempted from the night curfew by the said order passed under section 144 Cr.PC, Ex. A8, itself. Thus, the prosecution through the material available on record including the testimony of witness examined, could not establish the violation of Ex.A8, by the accused as alleged and thereby alleged commission of the offence punishable u/s 188 IPC by the accused.
22.Thus, the prosecution has failed to prove one of the essential ingredients that the accused had the knowledge of such order and having its knowledge he had disobeyed the said order, Ex.A8, which is essential to secure the conviction of the accused as observed above.
23.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 FIR No. 100/2021 State Vs. Yogesh Page 12 of 13 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
24. In view of the above examination of the evidence and material available on record, it is observed that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt of which the accused faced the trial. Therefore, accused, Yogesh, is hereby acquitted of the offence punishable u/s 188 IPC of which he faced the trial.
Announced in the open Court today i.e. on 23.07.2022.
RAJANI Digitally signed by
RAJANI RANGA
Date: 2022.07.23
RANGA 08:16:39 +0530
(RAJANI RANGA)
ACMM01(CENTRAL)/THC/DELHI
23.07.2022
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