Delhi District Court
State vs . : Umesh on 16 August, 2021
IN THE COURT OF SHRI SANDEEP GUPTA, CMM (NORTHWEST),
ROHINI DISTRICT COURTS, DELHI.
Case No. : 5042/2017
DD No. : 51B dated 03.08.2017
U/s. : 53/116 DP Act
P.S. : Subhash Place
State Vs. : Umesh
JUDGMENT
1. Date of institution of the kalandara : 17.08.2017
2. Date of the commission of the offence: 03.08.2017
3. Name of the accused : Umesh @ Umakant Rai S/o Late Sh. Damodar Rai R/o K155, JJ Colony, Shakurpur, Delhi.
4. Name of the complainant : SI Sudhir Rathi
5. Offence complained of : 53/116 D.P. Act
6. Plea of accused : Pleaded not guilty
7. Final order : Acquitted
8. Date of such order : 16.08.2021 BRIEF REASONS FOR DECISION : The story of the prosecution in brief is as under:
1. The accused Umesh @ Umakant Rai S/o Late Sh. Damodar Rai has been sent to face trial under Section 53/116 D.P. Act and on the allegations that on 02.08.2017 the accused was apprehended/arrested in Delhi in case FIR No.237/17 U/s 376 IPC & 6 POCSO Act PS Subhash Place, Delhi and he was found present in the NCT of Delhi in contravention of Order No.35174/Ext.Cell/North West Distt./Dt. 03.02.2017 of Addl. DCP 1/NW Distt. Ms. Vijayanta Arya vide which the accused was externed and was directed not to enter or return to the limits of NCT of Delhi and on the basis of the said allegations, the present Kalandra U/s 53/116 D.P. Act dated 03.08.20217 was registered at Police Station Subhash Place and notice was served upon the accused for the offences under Section 53/116 D.P. Act.
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2. After investigation, kalandra was filed against the accused. The copies of kalandra were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.).
3. Subsequently, on 14.09.2017 after hearing Assistant Public Prosecutor (APP) and the accused, a formal notice was served upon the accused whereby the accused was charged with the commission of offence punishable under section 53/116 of D.P. Act. The notice was read over and explained to the accused to which he did not plead guilty and claimed trial.
4. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined 2 witnesses, out of 2 witnesses as mentioned in the list of witnesses.
5. PW1 ASI Balram No. 87(N/W), Externment Cell, Delhi has deposed that he has brought the original record of proceedings U/s 47 D.P. Act pertaining to the accused Umakant @ Umesh S/o Damodar R/o H23, DDA Market, Shakurpur, J.J. Colony, Delhi. He further deposed that as per their record, on 03.02.2017 Addl. DCP Vijayanta Arya in exercise of powers U/s 47 of D.P. Act, 1978 ordered that accused Uma Kant @ Umesh S/o Sh. Damodar Rai shall remove himself beyond the limits of NCT of Delhi for a period of two years. He deposed that the copy of order was duly served to the accused and he acknowledged the receipt of order. Copy of order dated 03.02.2017 of Addl. DCP running into two pages is Ex PW1/A (OSR). During his cross examination he denied the suggestion that the documents produced by him are tempered. He further denied the suggestion that the accused did not receive any order of externment.
DD No.51B dated 03.08.2017 P.S. Subhash Place State Vs. Umesh @ Umakant Rai Page No. 2 of 9 PW2 SI Sudhir Rathi, No. D5476, PS: Vikas Puri has deposed that on 02.08.2017, he was posted at PS Subhash Place, on that day, accused Umesh @ Uma Kant Rai against whom the externment order bearing no. 35174/externment cell dated 03.02.2017 has been passed and who had committed offence u/s 376 and 6 POCSO Act PS: Subhash Place on 21.05.2017 and FIR no. 237/17 PS: Subhash Place was registered in this regard against him. He deposed that accused Umesh @ Uma Kant Rai (correctly identified by the witness) had been evading his arrest in case FIR no. 237/17 PS Subhash Place. He deposed that he was apprehended by W/ASI Parwati in case FIR no. 237/17 u/s 376 IPC and 6 POCSO Act and was brought in the PS. He deposed that he was enquired about the court summons but the accused was not having any court summons for the date of 21.05.2017 and he was not having any stay order/relief order from the Hon'ble Delhi High Court. He deposed that accused Umesh @ Uma Kant has violated the order of concerned DCP vide which he was restrained to enter in the limit of NCT of Delhi for a period of 2 years. He further deposed that accused was found within the jurisdiction of NCT of Delhi and also violated the order of concerned DCP. He further deposed that it has also come to notice that accused has committed offence of FIR no. 237/17 at house no. H23, DDA market, JJ Colony, Shakurpur, Delhi on 21.05.2017 during the period when the externment proceedings was going on against him. He further deposed that he prepared kalandara u/s 53/116 DP Act as Ex. PW2/A. He deposed that accused Uma Kant @ Umesh was arrested in the kalandara vide Ex. PW2/B. The externment order dated 02.03.2017 is Ex. PW1/A. He further deposed that accused was produced before the court of Ld. MM after getting done his medical examination. This witness was cross examined at length by the counsel for the accused.
6. Subsequent to the recording of statement of PWs, PE was closed DD No.51B dated 03.08.2017 P.S. Subhash Place State Vs. Umesh @ Umakant Rai Page No. 3 of 9 and statement of accused was recorded and all the incriminating evidence coming on record was put to the accused, in which he has submitted that he has been falsely implicated in the present case. He has further submitted that he does not want to lead evidence in her defence. Therefore, the matter was listed for Final Arguments.
7. I have comprehensively heard the arguments advanced by Ld. APP for the state, Ld. Counsel for accused as well as perused the entire record including the documents exhibited in evidence by the prosecution.
Analysis of the prosecution evidence and the relevant documents placed on record.
8. Ld. Counsel for the accused has argued that case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It was also argued that the presence of accused on 02/03.08.2017 within the jurisdiction of PS Subhash Place is planted one. Hence, it is prayed that the accused may be acquitted of the alleged offence.
9. On the contrary, it is submitted by the learned APP that from the material on record it has been proved that on 02/03.08.2017 the accused was found present within the jurisdiction of PS Subhash Place without having any valid reason/stay order of any relief from the court and was found present in contravention of externment order of Addl. DCP dated 03.02.2017 and therefore, the accused be convicted and severely punished for having committed offence punishable under section 53/116 D.P. Act.
10. I have given my thoughtful consideration to the submissions made on DD No.51B dated 03.08.2017 P.S. Subhash Place State Vs. Umesh @ Umakant Rai Page No. 4 of 9 behalf of both the parties.
11. Apparently, no public person was joined during investigation. Although, there is no need to join public witness for investigation but in that scenario, the court has to take cautious approach to see that the case of the prosecution is otherwise authentic and credible. Undoubtedly, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of "Pawan Kumar Vs Delhi Administration" 1989 Crl. LJ 127 Delhi, it has been held 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 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 IO should DD No.51B dated 03.08.2017 P.S. Subhash Place State Vs. Umesh @ Umakant Rai Page No. 5 of 9 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."
12. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
13. The genesis of the case of the prosecution undoubtedly relies upon primarily the location of the accused on the date of his arrest to prove that the accused acted in contravention of the order dated 03.02.2017 of Addl. DCP.
14. Before adjudicating the present case on merits, it becomes indispensible to quote Section 53 of D.P. Act which reads as under:
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 DD No.51B dated 03.08.2017 P.S. Subhash Place State Vs. Umesh @ Umakant Rai Page No. 6 of 9 section 46, section 47 or section 48 to remove himself from Delhi or any party thereof
(a) fails to remove himself as direction; 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.
15. The corresponding penal provisions in the aforesaid act is contained in section 116 of DP Act which contains the punishment to be awarded to the person found in violation of the externment order U/s 53 of DP Act. Hence, at the very outset, it is pellucid that the prosecution is bounden with the duty to categorically and specifically prove that the accused against whom externment order is passed by the competent authority has violated and acted in contravention of that order and to prove the same, the prosecution had to establish that the accused was found within the limits of the NCT of Delhi in the present case during the period for which he was directed not to enter or return to the limits of NCT of Delhi, without written DD No.51B dated 03.08.2017 P.S. Subhash Place State Vs. Umesh @ Umakant Rai Page No. 7 of 9 permission of the competent authority. The prosecution placed on record the relevant externment order dated 03.02.2017 copy of which is Ex.PW1/A and has examined two witnesses in its evidence. To sustain the conviction of the accused in the present case, it is apropos to carefully prove and scrutinize the testimony of the IO who arrested the accused i.e. PW2 SI Sudhir Rathi. A careful perusal of the cross examination of this witness reveals that this witness was not sure whether he apprehended the accused from Delhi border located near Khajoori Khas and he was further not sure whether the place where he apprehended the accused falls within the jurisdiction of area of NCT of Delhi or UP. Moreover, even for a moment, if it is believed that PW2 apprehended the accused near Khajoori Khas, then again this averment does not corelate with the arrest memo Ex.PW2/B which mentions the place of arrest of the accused as PS Subhash Place. A further probe into the testimony of PW2 shows that accused was apprehended in another case of PS Subhash Place on the same very day i.e. FIR No.237/17 but there is not a single document placed on record of the other case which could have thrown some light about the place of apprehension of the accused on the relevant date. Hence, the witness i.e. PW2 appears to be perplexed in his testimony and his evidence appears to be cryptic and elliptical in the sense that the witness could not specifically depose about the exact place of apprehension of the accused and moreover there are no witnesses mentioned on the arrest memo Ex.PW2/B which further makes it cryptic and an incomplete document. Thus one of the most pivotal ingredients i.e. presence of the accused within the local limits of NCT of Delhi on the relevant date remains unproved by the prosecution.
16. Therefore, in view of the aforesaid discussion and after going through the entire evidence on record and giving thoughtful consideration, it is pellucid that the case of the prosecution suffers from glaring inconsistencies DD No.51B dated 03.08.2017 P.S. Subhash Place State Vs. Umesh @ Umakant Rai Page No. 8 of 9 and deficiencies, hence, I have no hesitation to hold that the prosecution has miserably failed to prove its case beyond any reasonable doubt. Hence, the accused namely Umesh @ Umakant Rai hereby stands acquitted for the offences U/s 53/116 D.P. Act.
17. Previous bail bond/surety bond, if any, stands discharged. Necessary endorsement be cancelled. Bail bond in terms of Section 437A Cr.P.C. be placed on record.
File be consigned to record room after necessary compliance.
Announced in the open court (SANDEEP GUPTA)
on 16.08.2021 CMM: North West
Rohini: Delhi/16.08.2021
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