Delhi District Court
State vs . Kuldeep Singh & Ors. on 29 October, 2022
IN THE COURT OF SH. HARJEET SINGH JASPAL :
LD. ACMM04, ROUSE AVENUE COURTS, NEW DELHI.
CNR No. DLCT120000852022
Cr. C.No.15/2022
FIR No.0353/2021
PS New Ashok Nagar
State Vs. Kuldeep Singh & Ors.
JUDGMENT
1. Date of the commission of the offence: 15.08.2021, as per the charge sheet
2. Name & address of the Complainant: H.C. Ashok Kumar
3. Name of the accused and address : i) Kuldeep Singh
ii) Ravinder
iii) Mahavir All R/o New Ashok Nagar, East, Delhi, India
4. Offence complained of : S. 188 IPC r/w S. 34 IPC
5. Plea of accused : Pleaded not guilty
6. Final order : Convicted
7. Date of such order : 29.10.2022 Date of Institution of case : .....17.08.2022 Date of conclusion of final arguments: ......12.10.2022 Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 1 of 17.
Date of decision of the case : 29.10.2022
1. This is a special court, constituted specially to deal with the matters concerning MPs and MLAs exclusively. Vide this Judgment, I shall adjudicate the fate of the police report in FIR No.0353/2021, PS New Ashok Nagar. All the accused persons namely Kuldeep Singh, Ravinder and Mahavir have stood trial for offence u/s 188 IPC r/w Section 34 IPC.
2. The Challan/police report in the case was filed after the completion of the investigation and thereafter, the cognizance of the offence was taken on the basis of the police report and the corresponding complaint u/s 195 Cr.PC from ACP Sh. M.L Meena, (SubDivision, Kalyan Puri, Delhi).
3. In compliance of the applicable law, the copies of the challan (the police report) were supplied to all the accused persons alongwith all the corresponding documents, including the aforementioned complaint u/s 195 Cr.PC. On the basis of prima facie evidence i.e. the material on record, including the statements of the witnesses recorded u/s 161 Cr.PC, the police report etc., the notice was framed against all the accused persons for the offence u/s 188/34 IPC on 05.09.2022, to which they pleaded not guilty and claimed trial.
4. All the accused persons were duly represented by Ld. Counsels Sh. Mohd. Irshad and Sh. Kumud Ranjan Mishra and accused Mahavir and Ravinder were also represented by their Counsel Sh. S.P. Kaushal.
Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 2 of 17.
5. In a nutshell, it is the case of the prosecution that on 15.08.2021, at about 05:15 p.m., within the jurisdiction of PS New Ashok Nagar, the accused persons, alongwith 2025 unknown persons, gathered in violation of a specific order no. F60 (DDMA) COVID19/21/261 dated 08.08.2021 and order no. 7011 7040/Reader ACP/Kalyanpuri dated 09.08.2021 passed by ACP, Kalyanpuri, which prohibited public gathering in contravention of COVID guidelines and thus all the accused persons are liable to be punished for the offence u/s 188/34 IPC.
6. The prosecution has examined 05 witnesses to prove its case against the accused persons.
7. Before proceeding further I deem it appropriate to take on record the gist of testimonies of the prosecution witnesses, the same is as under :
7.1 PW1 HC Ashok, being the complainant and being the officer on duty at the spot, was the principal witness for the prosecution. The said witness deposed that on 15.08.2021, he was posted at PS New Ashok Nagar and his duty hours were 08:00 AM to 08:00 PM. As per said witness, he was on emergency duty, on that day, between 04:30 PM and 05:30 PM, after attending a call, he was heading towards the police station and when he reached near Varun Enclave, near Kondli Morh, he saw accused Kuldeep (MLA), in procession of Tiranga Yatra. As per PW1, there were many people with him, however, he could only identify by face accused Ravinder and Mahavir, apart from MLA Kuldeep. He further Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 3 of 17.
deposed that it was a procession of about 100125 persons consisting of cars and motorcycles and people on foot. MLA Kuldeep was in car with sunroof, accused Ravinder and Mahavir were on foot. He clicked pictures from his phone and reached the police station and informed the SHO about the entire incident and informed him that the rally was in violation of Covid guidelines. 7.1A He further deposed that after informing the SHO, ASI Arvind recorded his statement which is Ex. PW1/A1. He deposed that he took printouts of the photographs from his cell phone, which are on record as Ex. PW1/A2. He visited the spot with the IO, the naksha mauka/ site map was created at his instance which is Ex. PW 1/A3. The IO recorded his statement u/s 161 Cr.P.C. and he gave certificate u/s 65B to the IO which is Ex. PW 1/A4. He correctly identified the accused persons before the court. 7.1B He further answered the court question that he knows accused Ravinder and Mahavir as he is the beat officer of the area and these persons keep coming to that area and they meet general public.
7.1C The said witness was cross examined at length by the Ld. Defence Counsel. In his cross examination, it was suggested to the witness that the accused persons did not participate in any rally, as is claimed by the prosecution and that the photographs on record are not supported by a proper certificate u/s 65B Indian Evidence Act. The said suggestions were denied by the witness.
Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 4 of 17.
7.2 PW 2 ASI Chandrabhan Singh. He deposed that he registered the present FIR on 15.08.2021, when he was posted as DO at PS New Ashok Nagar. On that day, his duty hours were 04:00 PM to 12 midnight and present FIR was registered at about 11:40 PM, upon receiving rukka from ASI Arvind. He made endorsement on the rukka and registered the FIR. His endorsement is Ex PW2/A1, bearing signatures at point A1 on the said document. He also brought the original register in the court and copy on record was compared to the record brought. The copy of the FIR is Ex. PW 2/A2(OSR). He also brought the copy of GD Entry Number 100/A dated 15.08.2021, Ex. PW 2/A3. Along with the copy of the FIR, he issued a certificate u/s 65B of the Indian Evidence Act in respect to the registration of the FIR, the copy of the same is Ex. PW2/A4. After registration of the FIR, he handed over the copy, along with the tehrir and certificate, to the IO ASI Arvind Kumar.
7.2A The said witness was duly crossexamined by the Ld. Defence Counsel.
7.3 PW 3 IO ASI Arvind. He is the IO of the case and as per him, the present investigation was marked to him by the SHO, PS New Ashok Nagar on 15.08.2021, by verbal orders. He further deposed that at about 08:00/09:00 PM, he examined the complainant HC Ashok and recorded his statement by hand and same is Ex. PW 1/A1. He made the endorsement on the said complaint which is Ex. PW3/A1. Alongwith this endorsement, he Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 5 of 17.
also handed over the photographs which were produced to him by HC Ashok and handed over the same to the DO for registration of FIR, at about 11:30 p.m. 7.3A As per the IO/PW3, the FIR was registered and a copy thereof was supplied to him at about 12 midnight. Immediately thereafter, HC Ashok and he went to the spot and he prepared the site plan, at the instance of HC Ashok. He admitted that on that day, i.e, the day of the incident, apart from preparation of site plan, no other investigation was done at that time on the spot. 7.3B PW3 correctly identified the site plan prepared by him as document Ex.PW1/A3 and deposed that after reaching the PS, he recorded the statement of HC Ashok u/s 161 Cr.PC. As per him, the next day i.e. 16.08.2021, at about 8/9 a.m, he went to the spot again, alone. At the spot, he tried to find CCTV footage of the rally in question however, he could not find any. He tried to examine the general public and requested them to join the investigation however, due to political nature of the matter, no person wanted to join the investigation. He even requested the nearby shopkeepers however, they also refused citing the nature of the matter. The order of the ACP dated 09.08.2021 is Ex.PW3/A2 and he obtained complaint u/s 195 Cr.PC from ACP Sh. M.L. Meena which is Ex.PW3/A3. The copy of the certificate u/s 65 B of Indian Evidence Act given by the complainant HC Ashok was made part of the record, alongwith the photographs. The said photographs and said certificate are Ex.PW1/A2 and Ex.PW1/A4 respectively.
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7.3C His investigation showed that the accused persons violated the Covid Guidelines and carried on the procession in violation of the orders of the ACP and hence, he filed the charge sheet as the accused persons did not take permission for the procession. The witness correctly identified the accused persons. 7.3D By way of cross examination, the defence tried to question the entire investigation done by the IO. It was repeatedly suggested that the entire investigation is fabricated and has been done to falsely implicate the accused persons, however, the suggestions were denied.
7.4 ACP PW 4, ACP Sunil deposed that on 09.08.2021, he issued an order under section 144 Cr.P.C which was applicable for a period of 15 days i.e. from 09.08.2021 to 23.08.2021 and copy of same is Ex. PW 3/A2(colly 6 pages). 7.5 PW5, ACP M.L. Meena proved his complaint u/s 195 Cr.P.C. as document Ex. PW 3/A3. In the course of his cross examination, the Ld. Defence Counsel suggested that the said witness i.e., ACP M.L. Meena is not authorised to make complaint u/s 195 Cr.P.C., as on 15.08.2021, i.e., the day of the incident, he was not posted at Subdivision Kalyanpuri.
8. After exhausting of the list of prosecution witnesses, the matter was taken to the stage of recording of the statement of the accused U/s 313 Cr.PC. r/w Section 281 Cr.P.C. All incriminating evidence were put to all the accused persons and they were questioned generally on the case. They all denied all the Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 7 of 17.
allegations and stated that the present case is false and the police, which is under Home Ministry, has filed this case due to political vendetta. They further stated that they never participated in any such rally as alleged by the prosecution and the photographs are of some other time perhaps because they keep doing such rallies, but not in violation of law.
9. All the accused opted not to lead any Defence Evidence.
10. Due opportunity was given to both the sides for final arguments. Whereas the prosecution argued that the allegations against the accused persons stand duly proved, in view of the testimonies of prosecution witnesses, the defence on the other hand argued that there is no material on record to sustain conviction. Ld. Defence counsel pointed out that the Investigating Agency has not joined any public witness, despite abundant presence of public persons, commercial and residential establishments, etc., this, as per Ld. Defence Counsel, goes to the very root of the matter because the testimonies of the police witnesses themselves cannot be believed without a corroboration from an independent third party.
11. Ld. Defence counsel has further argued that the photographs on record cannot be considered because they are not supported by a valid certificate u/s 65B of the Indian Evidence Act. It has been argued that even though the complainant has filed a certificate u/s 65B Indian Evidence Act, however no such certificate has been filed by the shopkeeper from whose computer source the Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 8 of 17.
printouts were taken and similarly, the said shopkeeper has not been made a witness. Thus, as per defence, the case of the prosecution cannot be believed. Lastly, it is argued that since no explanation has been placed on record as to why no member of the general public has been joined as witness and in the absence thereof, the case of the prosecution cannot be relied merely on the testimonies of the police witnesses, therefore, the entire case goes for a toss.
12. The defence has also relied upon the following judgments :
1. Pawan Giri and Ors Vs. State of Haryana CRMM 515952021 (O & M) dated 07.02.2022,
2. Hardik Bharatbhai Patel Vs. State of Gujarat, Special Criminal Application No. 7425 of 2020,
3. State of UP Vs. Mata Bhikh (1994) 4 SCC 95,
4. PD Lakhani and Anr Vs. State of Punjab (2008) 5 Supreme Court Cases 150,
5. Ravinder Singh @ Kaku Vs. State of Punjab (2022) 7 SCC 581,
6. Arjun Pandit Rao Khotkar Vs. Kailash Kushan Rao Gorantyal and ors (2020) 7 SCC 1,
7. Atmaram Shivling Duple Vs. State of Maharashtra 2020 (1) L.L.N. 189.
Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 9 of 17.
13. I have gone through the rival submissions of both the parties as well as material on record carefully, including the case law placed on record by the defence. The court places on record its appreciation for cooperation shown by the prosecution and the defence for smooth progress and conclusion of the trial.
14. It has been argued on behalf of the prosecution that through witnesses examined by the prosecution, as mentioned above, it has been successful in proving its case beyond reasonable doubts. Thus, all the accused persons deserves to be convicted in the present case. On the other hand, it has been argued by Sh. Mohd. Irshad and Sh. S.P. Kaushal, Ld. Counsels for the accused persons that all the accused persons have been falsely implicated in the present case and they must be acquitted, as the testimonies of police witnesses alone cannot be sole basis of conviction. Furthermore, the defence has argued that there are umpteen discrepancies in the prosecution story and thus, the benefit ought to go to the defence. Lastly, the defence has argued that neither the complaint U/s 195 Cr.P.C., nor the certificate U/s 65 B Indian Evidence Act are proper and thus, neither of the said documents can be read in evidence.
15. It is a settled proposition of criminal trial that 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' to 'must have'. If the prosecution appears to be Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 10 of 17.
improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
16. It is the case of the prosecution that all the accused persons were present at the spot, within the jurisdiction of PS New Ashok Nagar, in violation of a specific order no. F60 (DDMA) COVID19/21/261 dated 08.08.2021 and order no. 7011 7040/Reader ACP/Kalyanpuri dated 09.08.2021 passed by ACP, Kalyanpuri, passed in view of the Corona Pandemic.
17. To begin with it is utmost necessary to understand and take on record the contents of the aforesaid order of the ACP dated 09.08.2021, the contextually relevant portion is reproduced hereunder :
The following activities shall be prohibited throughout the NCT of Delhi:
(i) All schools, colleges, educational/ training/ coaching institutions etc. will remain closed (except for the activities permitted in point No. 2 (xvii) below. Online/ distance learning shall continue to be permitted and should be encouraged.
(ii) All social/ political/ sports/ entertainment/ cultural/ religious/ festival related and other gatherings and congregations.
(iii) Banquet Halls (except for marriages as per condition prescribed below in point No.2).
Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 11 of 17.
18. A bare reading of the aforementioned order conveys that in the case at hand, for the prosecution to be successful, it ought to have proved the following two points :
i) That there was an
assembly/gathering/congregation which was
social or political in nature.
ii) That the accused persons were
present at the spot, in course of their
participation in aforementioned political
gathering/ congregation.
19. To begin with, the argument of the defence that non joining of public witnesses goes to the route of the matter and that the testimonies of the police witnesses cannot be believed by themselves, in the absence of corroboration by third party, needs to be addressed.
20. This court finds no merits in the arguments of defence that no case can be proved by the testimonies of police witnesses alone, as it is a settled position of law that the testimonies of police personals should be treated in the same manner as the testimonies of any other witnesses and there is no principle of law that without corroboration by independent witnesses their testimonies cannot be relied upon. The presumption that a person acts honestly applies as much in favour of the police as of the other persons and it is not proper judicial approach to distrust and suspect Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 12 of 17.
them without good ground (Reliance is placed on the judgment titled Karamjit Singh Vs. State (Delhi Admn.) AIR 2003 SC 1311), however, when there are material contradictions, the expected judicial approach is that of caution.
21. The next question which needs to be considered is whether the photographs on record i.e. Ex.PW1/A2 (four in number), be considered in the absence of certificate u/s 65 B of Indian Evidence Act from the person who was having custody and control of the computer source, which was used in taking out the print outs. The answer is yes. For the sake of clarity, I deem it appropriate to take on record the legislative mandate as contained u/s 65 B (4) of Indian Evidence Act, the same is as under:
In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 13 of 17.
occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
22. The law requires that the evidence which is stored in the computer source/phone/electronic device, if produced in evidence, by way of secondary evidence such as print out etc. be produced alongwith a certificate u/s 65B (4) of Indian Evidence Act. The said certificate is a condition precedent to the admissibility of the secondary evidence by way of electronic record. What requires to be proved is that the person having custody and control of computer source certifies that there is no tampering etc.
23. In the matter at hand, the certificate u/s 65 B of Indian Evidence Act has been given by the complainant HC Ashok, who certifies on oath that the print out of the photographs were taken from his cell phone (without sim) and there is no alteration or editing in the said context. It may be noted that it has not come on record that the photographs were actually shifted/transferred/ported to a different computer source so as to enable tampering. The testimony of PW1/ complainant HC Ashok clearly shows that the print outs were taken from his phone, by connecting the phone itself Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 14 of 17.
to a computer source. Since there is a certificate u/s 65 B of Indian Evidence Act on the record qua the said phone, there is no reason for the court to discard the evidence on farfetched technicalities. The argument of Ld. Defence Counsel, that certificate from person having control of the computer source from which print outs were taken is necessary, would have assumed importance if it would have come on record that the photographs were actually transferred to the said computer source, which is not the case in the matter at hand. The court is mindful of the fact that a cell phone device can be connected to a computer source as an external memory to facilitate the print outs, this process by itself does not necessarily requires transfer of the subject matter, which is required to be printed, to the said computer source. Ergo, in the light of the discussion, the argument of defence holds no ground.
24. Coming to the facts of the case, as per the prosecution, the accused persons namely Kuldeep, Ravinder and Mahavir were found in the middle of a political congregation, in violation of the aforementioned order of the ACP concerned. The presence and participation of the accused persons gets abundantly proved by the testimony of PW1, the complainant, HC Ashok, who has deposed of the presence of the accused persons at the spot and has duly identified the accused persons. In the considered opinion of the undersigned the defence has not highlighted any material contradictions in the testimony of complainant so as to discard the entire testimony itself. The supporting documents i.e. the site plan, Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 15 of 17.
the photographs in question, the rukka and tehrir and the other statements of the prosecution witnesses duly lend weight to the prosecution story. It may be kept in mind that the minor contradictions are bound to happen in any prosecution story and the matter cannot be put to a toss merely on account of those minor contradictions. In the opinion of the Court, the arguments that there is a delay of six hours in registration of FIR, no DD entry to show that PW1 was on duty etc., are of scant value, as the contradiction pointed out are minor.
25. The argument of the defence that the complaint u/s 195 Cr.PC has not come from a competent authority is completely misplaced. The record reveals that the complaint u/s 195 Cr.PC has been filed by ACP SubDivision, Kalyan Puri, Delhi and similarly the order in question, the violation of which is being considered an offence by the accused persons, has also been passed by ACP Sub Division, Kalyan Puri, Delhi. Section 195 Cr.PC clearly mandates that no court shall take cognizance of an offence punishable u/s 172 to 188 unless there is a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In the considered opinion of the undersigned, the expression 'public servant concerned' refers more to the designation than to the individual. In the matter at hand, the 'public servant concerned' is the office of the ACP concerned, having jurisdiction over SubDivision Kalyan Puri, Delhi. The said Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 16 of 17.
complaint u/s 195 Cr.PC and the order in question Ex.PW3/A2 are both under signature of ACP, SubDivision, Kalyan Puri, Delhi, though the individual person concerned are different. It may be noted here that as per the testimony of PW4 ACP Sunil, he got transferred from SubDivision, Kalyan Puri, Delhi in July 2022 and the complaint u/s 195 Cr.PC i.e. Ex.PW3/A3 is dated 13.08.2022, at which time the designation of ACP, Kalyanpuri was held by PW ACP Meena. Therefore, in the considered opinion of this Court there is no irregularity with the complaint U/s 195 Cr.P.C..
26. To sum up, having considered the totality of the facts and circumstances of the matter at hand, a careful perusal of the testimonies of the prosecution witnesses clearly shows that the prosecution has proved its case beyond reasonable doubts.
27. Ergo, the accused persons deserve to be convicted for offences U/s 188 r/w S. 34 IPC.
(Announced in open Court on 29.10.2022) (HARJEET SINGH JASPAL) ACMM04, RADC, NEW DELHI 29.10.2022 Cr. C.No.15/2022; FIR No.0353/2021; PS New Ashok Nagar; State Vs. Kuldeep Singh & Ors. Page : 17 of 17.