Delhi District Court
State vs Prahlad Malik on 20 June, 2024
IN THE COURT OF HARSHAL NEGI
METROPOLITAN MAGISTRATE-02, DWARKA COURT,
NEW DELHI.
FIR No.: 418/2021
PS: Mohan Garden
U/s: 14C Foreigners Act & 188 IPC
Case no. 9664/2022
State
Vs.
Prahlad Malik
S/o Sh. Balbir Singh Malik
R/o H No. 87, Mohan Garden, New Delhi. ..... Accused
S. No. of the case : 9664/2022
The date of offence : 09.08.2021
The name of the complainant : HC Lokender
The name of the accused : Prahlad Malik
The offence complained : 14C Foreigners Act &
188 IPC
The plea of the accused : Pleaded not guilty
Argument heard on : 20.06.2024
The date of order : 20.06.2024
The final order : Acquitted
Brief Facts
1. It is the case of the prosecution that on 09.08.2021 SI Ram Niwas arrested one foreign national namely Nnyigide Frankline under FIR No 413/21 and he informed the same to HC Lokender and also informed him that Nnyigide Frankline disclosed his address i.e. Gali No 11, Prahlad ka Makan, Vipin Garden. and without police verification. It is the case of the prosecution that the accused Prahlad Malik did not carry out the police verification of the abovesaid tenant who was residing in his house. An FIR bearing no. 418/2021 u/s 188 IPC and Section 14 C Foreigners Act came to be registered at PS Mohan Garden.
FIR No.: 418/2021 State versus Prahlad Malik Page No. 1 of 9
2. Investigation was set into motion and was conducted by IO HC Lokender. Chargesheet was filed by IO HC Lokender under Section 188 IPC and 14 C Foreigners Act.
3. After taking cognizance of the offence, the accused was summoned to face trial. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') . On finding a prima facie case against him, charge under Section 188 IPC and 14 C Foreigners Act was framed against the accused on 12.12.2023 to which the accused pleaded not guilty and claimed trial.
4. During the course of the trial the accused admitted FIR No 418/2021 PS Mohan Garden along with certificate 65B IEA Ex P1, GD No 88A dated 09.08.2021 Ex P2, Complaint by DCP u/s 195 CRPC dated 20.10.2021 Ex P3 and Order No 2325/B/ACP Sub- Division, Najafgarh, dated 24.06.2021 marked as Mark A. Thus, witnesses at serial no 2 & 5 were dropped in furtherance of statement of the accused under Section 294 CRPC. Prosecution Evidence
5. The prosecution examined the following witnesses:
i. SI Ram Niwas was examined as PW 1. He stated that on 09.08.2021, he was posted at P.S Mohan Garden as SI. On that day, he arrested one foreign national namely Nnyigide Frankline under FIR No. 413/21 Ex PW 1/A under Section 21 NDPS Act and after that he informed about the same to HC Lokender Kumar and informed him that accused Nnyi-
gide Frankline has disclosed his address i.e. Gali No.11, FIR No.: 418/2021 State versus Prahlad Malik Page No. 2 of 9 Prahlad ka makan, Vipin Garden. During investigation, HC Lokender recorded his statement u/s 161 Cr.P.C. ii. In his cross examination PW 1 affirmed that accused Nnyi- gide Frankline was not arrested from Gali No.11, Prahlad ka makan, Vipin Garden. He further affirmed that he have not visited the Gali No.11, Prahlad ka makan, Vipin Garden and checked whether accused belongings were at the said address or not. He denied the suggestion that he is deposing falsely or that accused Nnyigide Frankline never informed him that he was residing at Gali No.11, Prahlad ka makan, Vipin Garden.
iii. HC Lokender Kumar was examined as PW 2. He stated that on 09.08.2021 he received information through SI Ram Niwas that one foreign national namely Nnyigide Frankline under FIR No. 413/21 already Ex PW 1/A under Section 21 NDPS Act and after that he informed him that accused Nnyigide Frankline has disclosed his address i.e. Gali No.11, Prahlad ka makan, Vipin Garden. Thereafter he called accused Prahlad Malik and asked him whether he got verified foreign national Nnyigide Frankline before keeping him as tenant. He informed him that he has not got him verified. After that he prepared rukka Ex PW 2/A bearing his signatures at pt A and got the FIR registered myself against accused Prahlad Malik. Thereafter he along with HC Jitender went to Gali no.11, Prahlad Ka Makan, Vipin Garden and prepared site plan Ex PW 2/B bearing his signatures at pt A, served notice u/s 41A Cr.P.C Ex PW FIR No.: 418/2021 State versus Prahlad Malik Page No. 3 of 9 2/C bearing his signature at pt A and B to accused Prahlad and collected Aadhar card of accused Prahlad marked as Mark A. After that he collected permission u/s 195 Cr.P.C already Ex P3. During investigation, he recorded statement of witnesses u/s 161 Cr.P.C. After completion of investiga- tion, he filed the chargesheet in the concerned court. Ac- cused is present (correctly identified by the witness). iv. In his cross examination he affirmed that he did not inspect the premises i.e. Gali No.11, Prahlad ka makan, Vipin Garden nor any belongings of foreign national Nnyigide Frankline was found there. He affirmed that no rent agree- ment is placed on record as accused did not provide him any rent agreement. He further affirmed that no notice was served to accused to provide rent agreement. He affirmed that no notice was served to public persons to join the in- vestigation. He denied the suggestion that all the investiga- tion was done while sitting at PS or that accused is falsely implicated in the present case or that he is deposing falsely.
v. HC Jitender was examined as PW3. He stated that on 09.08.2021 IO HC Lokender received information through SI Ram Niwas that one foreign national namely Nnyigide Frankline under FIR No. 413/21 already Ex PW 1/A under Section 21 NDPS Act, that he is residing at Gali No.11, Prahlad ka makan, Vipin Garden. Thereafter HC Lokender called accused Prahlad Malik in his presence and asked him whether he got verified foreign national Nnyigide FIR No.: 418/2021 State versus Prahlad Malik Page No. 4 of 9 Frankline before keeping him as tenant. Accused informed him that he has not got tenant verification done. After that IO prepared rukka already Ex PW 2/A and got the FIR re- gistered against accused Prahlad Malik. Thereafter he along with IO went to Gali no.11, Prahlad Ka Makan, Vi- pin Garden and prepared site plan already Ex PW 2/B, served notice u/s 41A Cr.P.C already Ex PW 2/C and col- lected Aadhar card of accused Prahlad marked as Mark A in his presence. During investigation, IO recorded his statement u/s 161 Cr.P.C. Accused is present (correctly identified by the witness).
vi. In his cross examination he affirmed that IO did not in- spect the premises i.e. Gali No.11, Prahlad ka makan, Vi- pin Garden nor any belongings of foreign national Nnyi- gide Frankline was found there in his presence. He further affirmed that no notice was served to public persons to join the investigation in his presence. He also affirmed that no rent agreement or any address proof, electric bill was taken in his presence. He denied the suggestion that he did not visit the premises nor site plan was prepared in his pres- ence as Ex PW 2/B does not bear his signature or all the investigation was done while sitting at PS or that accused is falsely implicated in the present case or that he is depos- ing falsely at the instance of IO.
6. The prosecution evidence was thereafter closed and the statement of accused u/s 313 CrPC was recorded on 07.05.2024 wherein all the incriminating evidence appearing on record against the FIR No.: 418/2021 State versus Prahlad Malik Page No. 5 of 9 accused was put to him but he denied the same. The accused chose not to lead any defence evidence.
7. Ld. APP for the State argued that the prosecution has proved its case against the accused beyond reasonable doubt. It is contended that the witness has stated the case completely and the accused is liable to be convicted in this case.
8. Ld. counsel for the accused submitted that the prosecution has failed to prove its case beyond reasonable ground, therefore, accused may be acquitted in present case.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughtful consideration to the matter. Findings of the Court
10. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
11. In this case accused has been charged and being tried for offence under section 188 IPC & 14C of The Foreigner Act. Before FIR No.: 418/2021 State versus Prahlad Malik Page No. 6 of 9 dealing with the offence U/S 188 IPC, it is imperative to note that Section 14C of The Foreigners Act, 1946 states that:
14C. Penalty for abetment.--Whoever abets any offence punishable under section 14 or section 14A or section 14B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.
12. Therefore, in order to fulfil the ingredient of Section 14C, prosecution must prove that accused in this case has abetted an offence u/s 14/14A/14B of the act.
13. Section 14 of Foreigners Act is as under:
14. Penalty for contravention of provisions of the Act, etc.--Whoever. -- (a) remains in any area in India for a period exceeding the period for which the visa was issued to him;
(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting FIR No.: 418/2021 State versus Prahlad Malik Page No. 7 of 9 Court why such penalty should not be paid by him.
Explanation.--For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (entry into India) Act, 1920 (34 of 1920).
14. The prosecution, thus, must prove that accused had let out his property to Nnyigide Franklin as tenant. Further, accused Prahlad Malik has abetted this offence by allegedly allowing Nnyigide Franklin to stay at his place as tenant without police verification. Prosecution version is that Nnyigide Franklin was arrested in FIR No 413/2021 under Section 21 NDPS Act and disclosed to PW 1 his address as Gali No 11, Prahlad Ka Makan, Vipin Garden. It is to be noted that this whole case is initiated on the alleged statement of Nnyigide Franklin, who allegedly stated to PW1 in case FIR No. 413/2021 PS Mohan Garden that he was residing as tenant at the premises tenanted by accused Prahlad Malik. Further, accused has also been charged u/s 188 IPC for violating the aforementioned order of the concerned ACP for non- verification of tenant.
15. During the course of the trial and on reading the testimonies of the witnesses, it is not clear as to whether the accused was actually found keeping Nnyigide Franklin as tenant. It is significant to note that the present case is only based upon the hearsay of alleged person Nnyigide Franklin claiming to be the tenant of accused in present case. It is further to be noted that Nnyigide Franklin has also not been included as witness in this FIR No.: 418/2021 State versus Prahlad Malik Page No. 8 of 9 matter by the IO and IO has not even examined the alleged tenant in the course of investigation. Mere statement of Nnyigide Franklin that he was living as a tenant at some other property does not prove the sanctity of the statement given by Nnyigide Franklin. Besides, that particular statement will hit the bar of Sec.25 of Indian Evidence Act. Therefore, prosecution was casted a duty prove that Nnyigide Franklin was staying at Gali No.11, Prahlad ka makan, Vipin Garden as tenant of landlord/accused Prahlad Malik. However, the same could not be proved beyond reasonable doubt. Therefore, prosecution has failed to prove that accused Prahlad Malik had let out his property to Nnyigide Franklin as a tenant. Hence, the offences u/s 188 IPC and 14C of the Foreigners Act are not made out. Therefore, accused is bound to get to acquitted in this case.
16. Hence, accused Prahlad Malik s/o Sh. Balbir Singh Malik stands acquitted of the offence under section 188 IPC & 14C of The Foreigners Act, 1946, he has been charged and tried with.
Digitally signed by HARSHAL NEGIHARSHAL Announced in the open court on 20.06.2024. NEGI Date:
2024.06.20 20:23:23 +0530 (Harshal Negi) MM-02/Dwarka Court, New Delhi, 20.06.2024 It is certified that the present judgment runs into 09 pages HARSHAL Digitally signed by HARSHAL NEGI and each page bears my signature. NEGI Date: 2024.06.20 20:23:30 +0530 (Harshal Negi) MM-02/DwarkaCourt, New Delhi, 20.06.2024 FIR No.: 418/2021 State versus Prahlad Malik Page No. 9 of 9