Delhi District Court
State vs . Salim Malik on 19 September, 2022
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IN THE COURT OF MS NEETI SURI MISHRA
ACMM (NORTH): ROHINI COURTS:NEW DELHI
Cr. Case no.5420/2021
STATE Vs. Salim Malik
FIR NO.178/2021
PS Mukherjee Nagar
Date of Institution of case: 02.07.2021
Date of Judgment reserved: 19.09.2022
Date on which Judgment pronounced: 19.09.2022
Unique ID no. of the case : DLNT02-006458-2021
Date of commission of offence : 18.04.2021
Name of complainant : HC Surender Kumar
Name and address of accused : Salim Malik S/o Sh. Sabbir Malik
R/o Jhuggi no. 402, Outram Lane, GTB
Nagar, Delhi
Offence complained of : u/s 188 IPC
Plea of accused : Pleaded not guilty
Date of reserving the order: 19.09.2022
Date of order : 19.09.2022
Final order : Acquitted
FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 1/8
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JUDGMENT
1. Brief facts of the case as per prosecution are that on 18.04.2021 at about 8.30 pm the accused Salim Malik s/o Sabir Malik was found roaming at Gurudwara, Outram Lane near jhuggies, Delhi within jurisdiction of P.S. Mukherjee Nagar without wearing any type of mask on his face, during the rampant spread of covid 19 pandemic and he violated the order/notification bearing no. 3907-4006/ACP/Model Town, North West, dated, Delhi-16.04.2021 of ACP, Shalimar Bagh regarding imposition of section 144 Cr.P.C. and intentionally disobeyed the direction of concerned authority. On these allegations, prosecution alleges that the accused has committed offence punishable u/s 188 IPC.
2. After investigation, charge sheet was filed against the accused. The accused was summoned thereafter Copy of charge sheet was supplied to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and notice u/s 188 IPC was served upon the accused to which he pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused. The prosecution has examined the following witnesses in support of the case:-
PW-1 ASI Surender Kumar deposed that on 18.04.2021, he was posted as Head Constable at PS Mukherjee Nagar. On that day, he alongwith Ct. Naveen was on the patrolling duty for checking and implementation of curfew order, in view of the promulgation of the weekend curfew order no. 3907-4006/ACP/Model Town, North FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 2/8 3/8 West, dated, Delhi-16.04.2021 of ACP, Model Town, Delhi. During patrolling at about 8.30 PM, when they reached near Gurudwara, Outram Lane near jhuggies, they saw one person, whose name was later on revealed as Salim Malik S/o Sh. Sabbir Malik who was not wearing any kind of mask on his face. They asked him about the purpose as to why he was roaming outside, upon which he did not give any satisfactory reply and failed to produce any proof for his roaming outside his house amid curfew order. Accused was correctly identified by the witness in court. Thereafter, witness had prepared tehrir Ex.
PW-1/A and handed over the same to Ct. Naveen for registration of FIR. Thereafter, Ct. Naveen went to the PS, got the FIR registered through DO and after returning to the spot Ct. Naveen handed over the copy of FIR and original tehrir to witness. Thereafter, accused was arrested vide arrest memo Ex PW-1/B. Witness prepared site plan Ex. PW- 1/C of the place of incident. Accused was thereafter released on bail upon furnishing of his bail bonds. Witness recorded statement of Ct. Naveen.
The weekend curfew order no. 3907-4006/ACP/Model Town, North West, dated, Delhi-16.04.2021 of ACP Model Town, Delhi is proved as Ex. P-1. Later on, upon request application of witness and after perusal of case file, concerned ACP Sh. Vipul Anekant, Model Town has filed the complaint u/s 195 Cr.P.C which is proved as Ex. P-2.
PW-2:- HC Naveen Kumar deposed that on 18.04.2021, he was posted as Constable at PS Mukherjee Nagar. On that day, he alongwith HC Surender was on the patrolling duty for checking and implementation of curfew order, in view of the promulgation of the weekend curfew order no. 3907-4006/ACP/Model Town, North West, dated, Delhi-16.04.2021 of ACP, Model Town, Delhi. During patrolling at about FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 3/8 4/8 8.30 pm, when they reached near Gurudwara, Outram Lane near jhuggies, Delhi, they saw one person, whose name was later on revealed as Salim Malik s/o Sabir Malik who was not wearing any mask. They asked him about the purpose as to why he was roaming outside, upon which he did not give any satisfactory reply and failed to produce any proof for his roaming outside his house amid curfew order. Accused was correctly identified by the witness in court. IO had prepared tehrir and handed over the same to witness for registration of FIR. Accordingly, witness went to the PS and got the FIR registered through DO and after returning at the spot, witness handed over the copy of FIR and original tehrir to the IO. Accused was arrested vide arrest memo Ex. PW-1/B. Accused was released on bail upon furnishing of his bail bonds. IO recorded the statement of witness.
4. Statement of accused recorded u/s 294 Cr.P.C wherein he submitted that he shall not dispute the genuineness and preparation of the following documents without admitting the contents thereof :-
➢ Order/notification dated 16.04.2021 Ex. P-1; ➢ Complaint u/s 195 Cr.P.C., the same is Ex P-2;
➢ Copy of FIR is Ex P-3;
➢ Endorsement of DO, Ex. P-4;
➢ Certificate u/s 65 B Indian Evidence Act, Ex. P-5; ➢ Certificate of DO, same is Ex P-6;
5. After completion of prosecution's evidence PE was closed and statement of accused was recorded u/s 313 Cr.P.C. where he stated that false FIR has been registered FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 4/8 5/8 against him and he has been falsely implicated, however, accused refused to lead any defence evidence. Hence, the matter was listed for final arguments.
6. Final arguments were heard from both Ld. APP for the State and Ld. LAC for accused and complete record of the case was perused thoroughly.
7. I have heard the learned APP for the State and the learned counsel for the accused and have also carefully perused the record of the case.
8. Reminiscing the cardinal principles of criminal jurisprudence which form the foundation of every criminal trial, it would be apposite to mention here those golden rules/ principles, which are:
(a) that in every criminal trial, accused is presumed to be innocent until proven guilty;
(b) that in every criminal trial, prosecution is duty bound to prove the case against the accused beyond all reasonable doubts;
(c) that prosecution has to stand on its own legs and cannot derive any benefit/ advantage whatsoever, from the weaknesses in the defence of the accused.
9. In the present case, the accused Salim Malik has been indicted for the offence punishable u/s 188 IPC for acting in contravention of notification no.3907- 4006/ACP/Model Town, North West, dated, Delhi-16.04.2021 of ACP, Shalimar Bagh regarding imposition of section 144 Cr.P.C. as he was found roaming around without wearing any kind of mask to cover his face at the time when the covid 19 pandemic was FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 5/8 6/8 a rife disease.
10. In the present case, the testimonies of PW-1 and PW-2 show that both of them were on patrolling duty on the date of the incident. But neither of the witnesses has proved on record any DD entry to show or to prove that they were on patrolling duty on the said date. Regarding the value of making DD entries, it is worth mentioning that as per Chapter-22 Rule 49 of the Punjab Police Rules it is necessary to record DD entry of arrival and departure of the police officials. Chapter 22 Rule 49 of the PP Rules, 1934 is reproduced as under:
" 22.49 Matter to be entered in Register no.II- the following matters shall, amongst others, be entered:- The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or else where, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:- The term police station will include all places such as police lines and police posts where Register no. II is maintained."
11. At this juncture it would be relevant to refer to the decision of Hon'ble Delhi High Court in Ratan Lal vs State, 1987 (2) Crimes 29. The Hon'ble High Court observed:-
"Where in it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 6/8 7/8 that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case the abovesaid provision has not been complied with by the prosecution. A reasonable doubt is created in the mind of the court with regard to the proceedings conducted by the IO and about the prosecution's case against the accused.
12. Further more the police officials did not click any photographs of the accused roaming around without wearing mask, to substantiate the allegations against him. Besides this no other documentary evidence was brought on record to show that the accused was actually present at the spot or was not following the guidelines issued by the authorities. This lapse on the part of the police authorities creates a reasonable doubt in the investigation conducted by the police, thereby making the prosecution's case highly doubtful. In view of the facts and circumstances of the present case the decision of Hon'ble Supreme Court titled as S.L. Goswami, vs State of M.P, reported as 1972 Cri.L. J 511 (Supreme Court) is pertinent to be mentioned. The Hon'ble Supreme Court in the said case observed:-
"... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to some how hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 7/8 8/8 is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..."
13. The onus to prove the guilt of the accused was entirely on the prosecution. But from the foregoing discussion on the relevant, material and crucial aspects, it has surfaced that prosecution's case suffers from many a shortcomings, for which the benefit of doubt ought to be given to the accused. Therefore, in my view the accused cannot be convicted for the offence of Section 188 IPC as prosecution has failed to prove its case beyond all reasonable doubts.
14. Therefore, in light of the facts, circumstances and evidence, the accused Salim Malik is acquitted for the offence of Section 188 IPC.
15. File be consigned to record room.
(This judgment contains 08 pages and (Neeti Suri Mishra) all have been signed by undersigned) A.C.M.M. (North)/Rohini Courts Delhi/19.09.2022 FIR No. 178/2021 PS Mukherjee Nagar State Vs. Salim Malik page no. 8/8