Delhi District Court
State vs . Vishal Rana on 23 March, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-04, PATIALA
HOUSE COURTS, NEW DELHI.
PRESIDED BY: MS. AKRITI MAHENDRU
Cr.C No. 9267/2019
DD No. 28A dated 12.04.2019
PS: Inder Puri
State vs. Vishal Rana
JUDGMENT
a) ID. No. of the case : 9267/2019
b) Date of Commission : 12.04.2019
of offence
c) Name of the Complainant/ : ASI Jai Singh
Informant.
d) Name of the Accused, his : Vishal Rana, S/o Sh. Sanjeet
parentage and address Singh, R/o D-543, JJ Colony,
Inder Puri, Delhi.
e) Offences complained of : 53/116 of Delhi Police Act.
f) Plea of the Accused : Pleaded not guilty
g) Final Order. : Acquittal
h) Date of such order. : 23.03.2023.
i) Date of institution. : 15.04.2019
1. Vide this judgement this court shall dispose of the present case registered under Section 53/116 of Delhi Police Act, at PS Inderpuri.
2. Shorn off unnecessary details, the case of the prosecution is that, on 12.04.2019, at around 01:00 AM one person namely, Vishal Rana (hereinafter referred to as the accused) was arrested with a country made pistol in FIR No.91/2019 and brought to PS Inderpuri. During interrogation at the PS it was revealed that an externment order No. 3786-3806/SO/ADDL.DCP-I/West, New Delhi dated 18.12.2018 had been issued against him by Sh.Sameer Sharma, Additional Deputy Commissioner of Police , West District vide which directions were passed that the accused shall remove himself beyond the limits of NCT of Delhi for the period of six months w.e.f 25.12.2018. Since the accused was found DD No. 28A State Vs. Vishal Rana PS- Inder Puri /2/ within the jurisdiction of Delhi in violation of the aforementioned order the instant DD entry No. 28A was registered against him. Upon completion of investigation, a final report in the form of chargesheet under Section 173 of the Code of Criminal Procedure, 1973 was filed before this court.
3. After taking cognizance of the offence complained of in the instant case FIR, the Accused was summoned vide order dated 15.04.2019 and copy of chargesheet along with accompanying documents was supplied to the Accused in compliance of the provisions of Section 207 of the Code of Criminal Procedure, 1973. Subsequently, upon hearing the prosecution as well as the defence and after careful perusal of the material available on record, notice u/s 251 of Cr.PC for offence punishable u/s 53/116 of The Delhi Police Act,1978 was framed against the accused on 29.04.2019 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, prosecution examined 03 witnesses in its favour.
5. HC Vikrant was examined as PW1 by the prosecution. He deposed that on 12.04.2019, he was posted as HC at PS- Inder Puri. At around 11.00 AM, accused was brought to the PS in respect of FIR no. 91/2019, PS- Inder Puri. He was interrogated by IO/ASI Suresh and during interrogation, it was revealed that the accused was under externment for a period of six months w.e.f 25.12.2018 vide order No. 3786-3806/SO/Addl.DCP-I/West, New Delhi dated 18.12.2018, issued by Sh. Sameer Sharma Additional Deputy Commissioner of Police, West District . Thereafter, IO/ASI Suresh Kumar prepared a kalandra bearing DD No. 28A and accused was arrested in the said kalandara. PW1 correctly identified the Accused.
DD No. 28A State Vs. Vishal Rana PS- Inder Puri
/3/
6. PW1 was cross examined pointedly by Ld. Counsel for the Accused. During the course of his cross-examination, he deposed that IO/SI Suresh had prepared the kalandra in the visitor's room in front of the reception at PS- Inder Puri. He conceded that the IO had not recorded his statement in the present case however, claimed that the kalandra, arrest memo and the conviction slip were prepared in his presence. PW1 denied the suggestions put forth by ld. Counsel for the Accused namely;- that accused was not arrested in his presence; or that he had not joined the investigation of the present case; or that he was deposing falsely.
7. SI Jai Singh was examined as PW2 by the prosecution. He deposed that on 12.04.2019, he was posted as ASI at PS- Inder Puri. On that day, accused was arrested in case FIR no. 91/2019 of PS- Inder Puri and he was the first IO in that case. The accused was interrogated by IO/ASI Suresh and during interrogation, it was revealed that the accused was under externment for a period of six months w.e.f 25.12.2018 vide order No. 3786-3806/SO/Addl.DCP-I/West, New Delhi dated 18.12.2018 issued by Sh. Sameer Sharma. Thereafter, IO/ASI Suresh Kumar prepared the kalandra and accused was arrested in kalandra bearing DD No. 28A vide Arrest memo Ex.PW-1/A bearing his signature at point B. PW2 correctly identified the accused.
8. During the course of his cross-examination, PW2 denied the suggestions put forth by ld. Counsel for the Accused namely;- that the accused had been falsely implicated in FIR No. 91/2019, PS- Inder Puri and the allegations against him were totally false and fabricated; or that he had not joined investigation in FIR No. 91/2019; or that the accused had been falsely implicated in the present kalandra; or that he had not joined investigation in the present kalandra and no DD No. 28A State Vs. Vishal Rana PS- Inder Puri /4/ documents were prepared in his presence; or that the accused was not arrested in his presence or that he was deposing falsely.
9. IO/SI Suresh Kumar was examined by the prosecution as PW3. He deposed that on 12.04.2019, he was posted as ASI at PS- Inder Puri and on the said date the Accused was apprehended by Ct. Mittar Sain near Lohe Wala Pul, Inderpuri for allegedly carrying illegal firearms. After registration of FIR No. 91/2019 against the Accused under Arms Act, the matter was marked to him for investigation. He stated that the first IO/ASI Jai Singh reached the spot and conducted the proceedings thereafter, the investigation was marked to him and he came to know that an externment order had been issued against the Accused u/s 47 of the Delhi Police Act,1978 and the accused had violated the conditions of the said order by remaining present in Delhi. Subsequently, he registered DD No.28A, prepared the kalandara Ex.PW3/A and arrested the accused vide arrest memo already Ex. PW1/A. Thereafter, accused was produced before the court and after completion of investigation, he filed the charge-sheet in the court. Witness correctly identified the accused in the court.
10. PW3 was cross examined by Ld. Counsel for the Accused. During the course of his cross-examination, PW3 conceded that he was not present at the spot along with the first IO/ASI Jai Singh at the time of arrest of the Accused in FIR No. 91/2019. He admitted that he had not recorded the statement of Ct. Mittar Sain in the present case. PW3 denied the suggestions put forth by ld. Counsel for the Accused namely;- that the accused was arrested from outside Delhi near Gurgaon Border on 12.04.2019 where he had gone to Fortis hospital to attend to his ailing uncle namely, Kuldeep who was admitted there and who subsequently expired after some days; or that the accused was falsely implicated in FIR No. 91/2019; or DD No. 28A State Vs. Vishal Rana PS- Inder Puri /5/ that the accused had violated the conditions of Externment order; or that the accused had been falsely implicated in the present case; or that he was deposing falsely.
11. Thereafter PE was closed vide order dated 03.08.2022 and accused was examined in the exercise of power under section 313 of the Code of Criminal Procedure, 1973 on 16.01.2023 Accused pleaded innocence and denied the allegations against him. He stated that on 12.04.2019 he had gone to Fortis Hospital, Gurgaon where his uncle Kuldeep was admitted and was picked up by the police from the border in Gurgaon and brought to PS Inderpuri. He claimed that he had been falsely implicated in the present case and he had filed the medical documents of his uncle along with the bail application after his arrest.
12. Final arguments were addressed on behalf of the Accused as well as by the Ld. APP for the State.
13. During the course of final arguments, it was submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts. All the ingredients of offence punishable under section 53/116 of The Delhi Police Act,1978 are made out and the witnesses have supported the prosecution case therefore the accused ought to be convicted of the offence charged with.
14. On the other hand, Ld. Defence Counsel argued that the prosecution has not been able to establish its case beyond reasonable doubt therefore, the benefit of doubt must inure to the Accused. It was argued on behalf of the Accused that he has been falsely implicated in the present case which is apparent from the fact no public witness has been examined by the prosecution to prove the fact of his DD No. 28A State Vs. Vishal Rana PS- Inder Puri /6/ apprehension from the spot. Ld. Counsel further argued that the police officers who purportedly arrested the Accused from the spot and brought him to the Police station have not been examined by the prosecution as witnesses. He pointed out the contradictions in the testimony of the witnesses to argue that prosecution has failed to prove its case beyond reasonable doubt.
15. Before sifting and weighing the competing submission in the adumbral of evidence tendered on record, it is deemed germane to reproduce the applicable provisions of the Delhi Police Act, 1978 namely:
47. Removal of persons about to commit offences.-
Whenever it appears to the Commissioner of Police-
(a) that the movements or acts of any person are causing or are calculated to cause alarm, danger or harm to person or property; or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code (45 of 1860 ) or under section 290 or sections 489A to 489E (both inclusive) of that Code or in the abetment of any such offence; or
(c) that such person-
(i) is so desperate and dangerous as to render his being at large in Delhi or in any part thereof hazardous to the community; or
(ii) has been found habitually intimidating other persons by acts of violence or by show of force; or
(iii) habitually commits affray or breach of peace or riot, or habitually makes forcible collection of subscription or threatens people for illegal pecuniary gain for himself or for others; or
(iv) has been habitually passing indecent remarks on women and girls, or teasing them by overtures; and that in the opinion of the Commissioner of Police witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the Safety of their person or property, the Commissioner of Police may by order in writing duly served on such person, or by beat of drum or otherwise as he thinks DD No. 28A State Vs. Vishal Rana PS- Inder Puri /7/ fit, direct such person to so conduct himself as shall seem necessary in order to prevent violence and alarm or to remove himself outside Delhi or any part thereof, by such route and within such time as the Commissioner of Police may specify and not to enter or return to Delhi or part thereof, as the case may be, from which he was directed to remove himself. Explanation.- A person who during a period within one year im- mediately preceding the commencement of an action under this section has been found on not less than three occasions to have committed or to have been involved in any of the acts referred to in this section shall be deemed to have habitually committed that act.
53. Procedure on failure of person to leave the area and his entry therein after removal.- If a person to whom a direction has been issued under section 46, section 47 or section 48 to remove himself from Delhi or any part them re of-
(a) fails to remove himself as directed; or
(b) having so removed himself enters Delhi or any part thereof within the period specified in the order, otherwise than with the permission in writing of the Commissioner of Police under section 54, the Commissioner of Police may cause him to be arrested and removed in Police custody to such place outside Delhi or any part thereof as the Commissioner of police may in each case specify.
116. Penalty for entering without permission area from which a person is directed to remove himself or overstaying when permitted to return temporarily.- Without prejudice to the power to arrest and remove a person in the circumstances, and in the manner provided in section 53, any person who-
(a) in contravention of a direction issued to him under section 46, section 47 or section 48 enters or returns without permission to Delhi, or any part thereof, as the case may be, from which he was directed to remove himself; or
(b) enters or returns to Delhi or any part thereof with permission granted under sub- section (1) of section 54, but fails, contrary to the provisions thereof, to remove himself outside such area at the expiry of the temporary period for which he was permitted to enter or return or on the earlier revocation of such permission, or having removed himself at the expiry of such temporary period or on revocation of the permission, enters or returns thereafter, without fresh permission, shall, on conviction, be punished with imprisonment for a term which shall not be less than six DD No. 28A State Vs. Vishal Rana PS- Inder Puri /8/ months but which may extend to two years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.
16. Now this court shall proceed to deal with the pleas raised by the Accused. The first plea raised by the Accused is that he was not arrested on the spot by the police rather he was arrested from Gurgaon border where he had gone to visit his ailing uncle Kuldeep who subsequently passed away. He claimed that the police officers falsely implicated him in the present case which is apparent from the fact that no public person was examined by the prosecution to establish his guilt. The allegations against the accused, as per the prosecution version, are that he was found within the jurisdiction of Delhi in contravention of the externment order issued against him. In order to prove the charge against the Accused the burden is upon the prosecution to prove the fact of his presence in Delhi on the relevant date and time. In order to discharge the aforementioned burden, prosecution has examined three witnesses in its favour. As per the prosecution story Accused was found near Lohe wala Pul, Naraina, in possession of an illegal firearm i.e., country made pistol and was arrested by Ct. Mitter Sain and Ct. Ram Kumar and subsequently handed over to SI Jai Singh. All the witnesses examined by the prosecution during the course of trial, including the complainant, are police witnesses. No public witness was joined by the police at the time of arrest of the Accused from the spot. The police witnesses cannot be straight away termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the version put forth by the police witnesses cannot be taken to be the gospel truth and requires closer scrutiny and corroboration by other evidence available on record. In this context the observations of the Hon'ble High Court of Delhi in the celebrated judgment of DD No. 28A State Vs. Vishal Rana PS- Inder Puri /9/
17. Pawan Kumar v. Delhi Administration reported as 1989 Cri.LJ 127 spring to mind which reads as under:-
"Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
18. The above-mentioned observations were reiterated in the case of Anoop Joshi V/s State, reported as 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped DD No. 28A State Vs. Vishal Rana PS- Inder Puri /10/ the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
19. The second plea raised by the Accused is that the police officers who arrested the Accused from the spot were not examined as witnesses by the prosecution. Accused was admittedly not apprehended from the spot by any of the three witnesses examined by the prosecution rather, he was arrested by SI Suresh Kumar in the present case only after it was revealed during interrogation that there was an externment order against him. Meaning thereby that till the time the Accused was brought to the PS no one was aware of the externment order against him. The said fact came to the knowledge of the aforementioned witnesses only after the Accused was brought to the PS after being arrested in another FIR. In order to show that the Accused violated the externment order it is pertinent to prove that he was present within the jurisdiction of Delhi in contravention of the order, the burden of proving the presence of the accused in Delhi was upon the prosecution however, the material brought on record is insufficient to discharge that burden inasmuch as the police officials who had apprehended the accused allegedly in connection with case FIR No.91/2019 were not examined as witnesses in the present case. PW3 the IO in his cross examination conceded that he did not even record the statement of Ct. Mitter Sain under section 161 of the Code of Criminal Procedure, 1973. This omission though not fatal to the prosecution case, but creates a loophole that could have been plugged by examining the material witnesses.
20. It is a settled proposition of criminal law that prosecution is obliged to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case, prosecution is supposed to stand on its own DD No. 28A State Vs. Vishal Rana PS- Inder Puri /11/ legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the Accused. Burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the Accused. In the instant case, the prosecution has miserably failed to discharge that burden even on the touchstone of preponderance of probabilities, leave alone beyond reasonable doubt
21. Upon due circumspection of the totality of foregoing facts and circumstances, including but not limited to scrutiny of material available on record in the adumbral of the legal position governing the field, this Court is of the considered opinion that the prosecution could not prove beyond reasonable doubt that the accused was present in Delhi on 12.04.2019 which is a sine qua non for commission of offence under section 53/116 of Delhi Police Act. Having observed so, this Court hereby, acquits the Accused for the commission of offence 53/116 of the Delhi Police Act, 1978, complained of in the instant case FIR.
Announced in open court (AKRITI MAHENDRU) today i.e. on 23.03.2023 MM -04/ New Delhi District All 11 pages have been checked Patiala House, New Delhi and signed by me. 23.03.2023. DD No. 28A State Vs. Vishal Rana PS- Inder Puri