Delhi District Court
3.Title State vs . Salman @ Dant Tutta on 23 March, 2022
THE COURT OF SH. RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURT, DELHI
1.DD No. 35A dated 25.09.2013 PS Bhajanpura
2.Unique Case ID No. 461805/2015
3.Title State Vs. Salman @ Dant Tutta
3(A).Name of complainant HC Sanjeev Kumar 78/NE, PS
Bhajanpura, Delhi.
3(B).Name of accused Salman @ Dant Tuta, S/o Late Chaman,
R/o : D-233, Gali No. 5/1, Noor E
Ellahi, Bhajanpura, Delhi.
4.Date of institution of 26.09.2013
challan/kallandra
5.Date of Reserving judgment 09.03.2022
6.Date of pronouncement 23.03.2022
7.Date of commission of offence 25.09.2013
8.Offence complained of U/s 53/116 DP Act
9.Offence charged with Under Section 53/116 DP Act
10.Plea of the accused Pleaded not guilty
11.Final order Acquitted
12. Date of receiving of judicial 26.09.2013
file in this court
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The accused is facing a trial for commission of the offence punishable Under Section 53/116 DP Act. The case of the prosecution in a narrow compass is that on 25.09.2013 at about 11.30 AM at Noor E. Ellahi, Bhajanpura, Delhi within jurisdiction of PS Bhajanpura, the accused was DD NO. 35A State Vs. Salman @ Dant Tutta Page 1 of 8 found within the territory of limit of Delhi, in contravention of order of Additional DCP in reference no. 6245-62/Ext. Cell/Northeast Distt. dated 13.12.2012, regarding his externment from Delhi for two years w.e.f 20.12.2012 as a result of proceedings under section 47 D.P. Act and thereby accused committed an offence under section 53/116 DP Act, 1978.
2. Accordingly, charge sheet was filed u/sec 173 Cr. PC, copies were supplied to the accused in compliance of section 207 Cr.P.C and on the basis of record, charge for the offence punishable u/s 53/116 DP Act was framed against the accused on 31.10.2013, to which he pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case against the accused in total examined as many as two witnesses namely :- PW 1 HC Sanjeev Kumar and PW2 Constable Sonu.
4. PW1 is HC Sanjeev Kumar. He has deposed that on 25.09.2013, he was posted at PS Bhajanpura as Head Constable. On that day he was on emergency duty. His duty hours were from 8:00 AM to 8:00 PM alongwith Ct. Sonu. On the said day, he was present at PS where SI Shahid Khan met him who informed him that accused Salman @ Dant Tuta who was the BC of PS Bhajanpura and he was ordered for externment from Delhi for two years vide the order of Additional DCP vide order no. 6245-62 effective from 20.12.2012 mark A-1. SI Shahid Khan also told him that accused Salman was arrested under section 41.1(D) Cr.P.C. He collected the aforesaid externment copy from the Externment Branch, North East. Thereafter, he arrested the accused Salman @ Dant Tuta under section DD NO. 35A State Vs. Salman @ Dant Tutta Page 2 of 8 53/116 D.P. Act vide DD No. 35A dated 25.09.2013 Ex. PW1/A1 vide arrest memo Ex. PW1/A bearing his signature at point A. His personal search was also made vide personal search memo Ex. PW1/B bearing his signatures at point A. On the next date accused was produced before the court and was sent to judicial custody.
5. PW2 is Constable Sonu. He has deposed that on 25.09.2013, he was posted at PS Bhajanpura as Constable. On the said day, he was on emergency duty. His duty hours were from 8:00 AM to 8:00 PM alongwith HC Sanjeev. On the said day, he was present at PS where SI Shahid Khan informed HC Sanjeev at DO room that accused Salman @ Dant Tuta who was the BC of PS Bhajanpura and he was ordered for externment from Delhi for two years vide the order of Additional DCP vide order No. 6245-62 effective from 20.12.2012 mark A-1. SI Shahid Khan also told that accused Salman was arrested under section 41.1(D) Cr.P.C. HC Sanjeev collected the abovesaid externment coopy from the Externment Branch, North East. Thereafter, HC Sanjeev arrested the accused Salman @ Dant Tuta under section 53/116 D.P. Act vide DD No. 35A dated 25.09.2013 already Ex. PW1/A1 vide arrest memo already Ex. PW1/A bearing his signatures at point B. His personal search was also made vide personal search memo already Ex. PW1/B bearing his signature at point B. IO recorded his statement and he was relieved thereafter.
6. No other Prosecution witness was examined. None of the witness was cross-examined by the accused despite being given an opportunity for the same. Prosecution Evidence was closed, and statement of the accused DD NO. 35A State Vs. Salman @ Dant Tutta Page 3 of 8 was recorded on 20.12.2021 wherein he stated that he was falsely implicated in the present case by the police officials. He stated that he had gone to Bhopara UP and from there the police personnel picked him and showed his arrest in Delhi. However, accused preferred not to lead any evidence in his defense.
7. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully. Now, the stage has been set to appreciate the evidence on record in the light of the following essential ingredients of the offence alleged to be committed by the accused.
8. It is a settled legal principle that the prosecution has to prove its case beyond the shadow of the reasonable doubt and has to stand upon its own legs. The prosecution cannot draw any strength from the weakness of the case of the accused. It is also a settled proposition in the criminal law that the accused had a basic right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rests upon the prosecution and the same never shifts on accused.
9. Here it would be appropriated to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under:-
"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' DD NO. 35A State Vs. Salman @ Dant Tutta Page 4 of 8 to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
10. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on record which warrant the conviction of the accused on the touch stone of the golden principle of criminal jurisprudence that the guilt of the accused has to be proved beyond reasonable doubt. Now the stage has been set to appreciate the entire evidence on record in the light of essential ingredients of the offence punishable under Section 53/116 D.P. Act allegedly committed by the accused.
11. Section 53 Delhi Police Act, 1978 provides procedure on failure of a person to leave the area and his entry therein after his removal. It reads as under: -
"If a person to whom a direction has been issued under Section 46, 47 or Section 48 to remove himself from Delhi or any part thereof----(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 a permission in writing of Commissioner of Police under Section 54, The Commissioner of Police may cause him to be arrested and removed in the police custody to such place outside Delhi or any part thereof as the Commissioner of Police may in each case specify.
12. Section 116 of Delhi Police Act 1978 provides for penalty DD NO. 35A State Vs. Salman @ Dant Tutta Page 5 of 8 for entering without permission in the area from which a person is directed to remove himself. According to this provision, any person who was directed to remove himself from Delhi or any part thereof and enters or returns without permission to Delhi or any part thereof in contravention of the directions issued to him under Section 46, Section 47 or Section 48 or Delhi Police Act shall on conviction be punished with imprisonment for a term of not less than six months, but which may extend for two years and shall also be liable for fine. The proviso appended to this Section, empowers the Court to impose a sentence of imprisonment for a term less than six months by recording the special reasons for the same.
13. In order to bring home the guilt for the offence under Sec. 53/116 D.P Act, the prosecution is under an obligation to prove that the accused had disobeyed the directions issued to him by the Additional DCP under Section 47 r/w Section 53 Delhi Police Act vide reference number 6245-62/Ext. Cell/N-E dated 13.12.2012 and the accused had entered and was apprehended within the territorial limits of Delhi during the effectiveness of the said order.
14. State examined PW1 and PW2 in order to prove its case. None of the witness was cross examined by the accused despite being given opportunity for the same. The purpose of conducting the cross-examination of the witness is three-fold namely viz.
(i) To elicit something favourable from the witness of the other party.DD NO. 35A State Vs. Salman @ Dant Tutta Page 6 of 8
(ii) To destroy the prosecution case through the deposition/ mouth of its witness.
(iii) To impeach the creditworthiness of the witness by injuring his character, etc. It is a settled law that when the accused did not cross-examine the witness of the prosecution, he is not disputing the prosecution case and accepting the deposition of the witness. Therefore, the examined witness remains unimpeached. In this case, admittedly the Additional DCP, North-
East, Delhi vide his order No. 6245-62/Ext. Cell/N-E dated 13.12.2012 had directed the accused to remove himself beyond the limits of NCT of Delhi for a period of two years from 20.12.2012. The factum of the aforesaid order of Additional DCP, North-East is not disputed by the accused. This shows that the accused has not disputed the factum of passing of aforesaid order by the aforesaid competent authority at the relevant point of time. The said order was effective for two years from 20.12.2012.
15. The accused was also admittedly arrested in this case on 25.09.2013 by HC Sanjeev Kumar vide arrest memo Ex. PW1/A. However, accused was only formally arrested in the present case in the police station itself but was apprehended by SI Shahid Khan vide DD no 34A u/s 41.1.(D) Cr.P.C as per record. As per the prosecution version, SI Shahid apprehended the accused and thereafter handed over the accused PW1 by stating that the accused was in violation of externment order. However, SI Shahid has not been examined by the state nor the said DD entry been proved. Hence, the place of apprehension of the accused remains not proved. Hence, there is a missing link in the chain. The State fails to show from where the accused DD NO. 35A State Vs. Salman @ Dant Tutta Page 7 of 8 was apprehended. Hence, it is not clear from the record that accused entered within the limits of Delhi and was apprehended within the limits of Delhi.
16. It is settled principal of criminal law that an accused is presumed innocent until proved guilty by a Court of competent jurisdiction. The prosecution is supposed to prove its case beyond reasonable doubts. As the prosecution has failed to prove the essential ingredient of the offence under section 53/116 DP Act, 1978 itself, the prosecution has failed to prove its case.
17. Thus, on the basis of the aforesaid findings, the accused Salman @ Dant Tuta is acquitted for offence under Sec. 53/116 D.P. Act.
20. File be consigned to record room Announced in the (Rupinder Singh Dhiman) Open Court on 23.03.2022 Metropolitan Magistrate-01 KKD Courts/NE/Delhi 23.03.2022 It is certified that this judgment contains 8 (eight pages) and each page bears my signature.
(Rupinder Singh Dhiman) Metropolitan Magistrate-01 NE/KKD Courts, Delhi 23.03.2022 DD NO. 35A State Vs. Salman @ Dant Tutta Page 8 of 8