Delhi District Court
State vs Omar Farooq@Amar on 18 July, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-
12, SOUTH-EAST, SAKET COURTS, NEW DELHI
Presided over by- Ms. Neha Barupal, DJS
Cr. Case No. : 4442/2020
CNR No. : DLSE020129212020
FIR No. : 174/2020
Police Station : Amar Colony
Section(s) : 188/269/270 IPC and 3
Epidemic Diseases Act,
1897
In the matter of:
STATE
VERSUS
OMAR FAROOQ @ AMAR
S/o Rafi Ahmad
R/o H.No. 82, Chatta Lal Mian, Dariya Ganj Delhi.
1. Name of Complainant : ASI Dalbir Singh
Omar Farooq @
2. Name of Accused :
Amar
S. 188/269/270 IPC
3. Offence complained of or proved : and 3 Epidemic
Diseases Act, 1897
4. Plea of Accused : Not guilty
5. Date of commission of offence : 27.02.2020
6. Date of filing of case : 08.10.2020
7. Date of reserving Order : 12.07.2024
8. Date of pronouncement : 18.07.2024
9. Final Order : Acquitted
Argued by: Mr. Sandeep Kumar Bhati, Ld. APP for the State.
Mr. Asim Naeem, Ld. Counsel for the accused.
Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 1 of 13 Digitally signed by NEHA NEHA BARUPAL
BARUPAL Date:
2024.07.18
16:13:49 +0530
1. Briefly stated, the case of the prosecution as revealed from the chargesheet is that on 23.04.2020 at about 11:50 PM the accused was found in violation of notification no. 826-865/ACP/Kalkaji New Delhi dated 14.04.2020 for selling vegetables at his shop no. 14, Okhla Sabzi Mandi, New Delhi without displaying a board regarding prevention of COVID-19 and for not ensuring that the public present there maintains social distancing. As such, it is alleged that the accused has committed the offences punishable under Section 188/269/270 Indian Penal Code, 1860 (hereinafter, "IPC") and section 3, Epidemic Diseases Act, 1897 for which FIR No. 174/2020 was registered at the Police Station Amar Colony, New Delhi.
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial vide order dated 26.03.2021.
3. A copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case, charge under Section 188/269/270 IPC and 3 Epidemic Diseases Act, 1897 was framed against the accused for selling vegetables during COVID-19 lockdown without displaying sign board regarding prevention of Coronavirus (COVID-19). He pleaded not guilty and claimed trial.
4. During the trial, the prosecution examined three Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 2 of 13 Digitally signed by NEHA NEHA BARUPAL BARUPAL Date:
2024.07.18 16:13:58 +0530 witnesses to prove its case beyond reasonable doubt against the accused.
5. PW1 (HC Rakesh) deposed in his examination that on 27.04.2020 he was posted as Constable at PS Amar Colony. On that day at about 11:50 p.m., there was a crowd at Okhla Subzi Mandi and there was a continuous announcement to maintain distance due to Covid-19. At that time, there was crowed at shop no. 14. When they reached at the shop, the crowd scattered and the shopkeeper went away from there. He stated that IO HC Dalbir had given the complaint regarding the incident against the said shopkeeper and present FIR was got registered u/s 188 of IPC against accused Omar Farooq on the basis of the rukka prepared by IO HC Dalbir which was sent through him. He handed over the copy of the FIR to IO. Witness correctly identified the accused in court.
5.1 PW1 was cross examined wherein he admitted that on 27.04.2020 there was a circular from the Govt. that the Subzi mandi/essential goods shop will open with certain norms. He could not say if there was an odd/even system to open the shop on those days. Accused Omar was there when they inquired about his ownership of the shop, but somehow he managed to escape. They had inquired from the nearby shop regarding the possession/ownership of the said shop. He denied the suggestion that incident took place on 23.04.2020 and not on 27.04.2020. He is not aware if it was accused's day to open his shop for selling vegetables. PW1 denied the contrary suggestions which were put to him.
Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 3 of 13 Digitally signed by NEHA BARUPAL NEHA Date:
BARUPAL 2024.07.18
16:14:05
+0530
6. PW2 (ASI Dalbir) deposed in his examination that on 27.04.2020 he was posted as Head Constable at PS Amar Colony. On that day, he alongwith Ct. Rakesh was present in Okhla Subzi Mandi. During patrolling inside the Subzi Mandi at about 11:50 p.m, when they reached at shop no. 14, they saw that there was crowd gathered at the said shop. They noticed that there was no display board regarding the guidelines/instructions for Covid-19 at the said shop. They inquired from the person who was sitting at the shop and was selling the goods/vegetables without the compliance of Covid-19 Guidelines but he did not give any satisfactory reply to him. On the previous occasions, they had already informed the shopkeepers about the said guidelines i.e., maintaining social distancing and wearing of mask etc. and to display the board at the shop. He prepared rukka (Ex. PW2/A) regarding the violation of the said guidelines by accused Omar Farooq @ Amar. He handed over the rukka to Ct. Rakesh for registration of FIR at PS. Accordingly, he went to PS and got registered the present FIR. He received the copy of FIR. He prepared site plan (Ex.PW2/B). PW2 stated that while he was preparing documents, the accused fled away from there. Later on, they traced the accused on 27.07.2020 and served the notice u/s. 41-A CrPC upon the accused (Ex.PW2/C). He recorded the statement of the witnesses. Later on, he prepared the charge-sheet of this case and submitted it before Court.
6.1 PW2 was cross examined by the Ld. Counsel for the accused wherein he admitted that there was a Circular from the Govt. that the Subzi mandi/essential goods shop will open with Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 4 of 13 Digitally signed by NEHA BARUPAL NEHA Date:
BARUPAL 2024.07.18 16:14:13 +0530 certain Covid-19 norms. He was not aware if it was accused's day to open his shop for selling vegetables. He was not aware whether the sign board of Covid-19 was to be displayed and fixed by the APMC and not by the accused. He denied contrary suggestion regarding non-violation of norms of Delhi government and police.
7. PW3 (Retd. ACP/Govind Sharma) deposed that on 27.04.2020, accused Omar Farooq @ Amar was running a vegetable shop in Okhla Mandi in contravention of official orders under section 144 Cr.P.C. Accordingly, the present FIR No. 174 u/s 188/269/270 IPC and 3 Epidemic Diseases Act was registered against Omar Farooq by IO/ASI Dalbir. He stated that after the investigation of the case, he has perused the evidence available on the case file and submitted a complaint u/s 195 Cr.P.C. He identified the contents and his signatures in the said complaint (Ex. PW3/A). He also identified the list of witnesses (Ex. PW3/B). He stated that he has never seen the accused during investigation.
7.1 PW3 was cross examined by Ld. Counsel for the accused wherein he admitted that the foods and vegetables comes under essential commodity which was required even during the pandemic Covid-19 and that during Covid-19 the Government has notified an order to run the shops pertaining to essential commodities on odd and even scheme. PW3 further stated that in the present case, the accused has done the violation of the notification and guidelines of the Government. The accused was not maintaining social distancing and he had not displayed the guidelines of the Government outside his shop. PW3 deposed that Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 5 of 13 Digitally signed by NEHA NEHA BARUPAL BARUPAL Date: 2024.07.18 16:14:22 +0530 he only made a complaint on the basis of complaint and statement of the witnesses, however, no photograph was shown by the police official who was investigating the present matter. PW3 denied all the contrary suggestions which were put to him by Ld. Defence counsel.
8. Thereafter, to enable the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313(1)(b) Cr.P.C. read with section 281 Cr.P.C. In reply, the accused stated that the Okhla Subzi Mandi is operated as per the guidelines of the Government. He stated that on 23.04.2020 he was selling vegetables at his shop in Okhla Subzi Mandi in accordance with the notification of APMC dated 12.04.2020 which allowed selling of vegetables at even number shops on Tuesday, Thursday and Saturday. His shop no. is 14. He added that he was following Covid norms at the time including making of circles as mandated by the Government guidelines. He stated that a false case has been filed against him and that he was not selling vegetables on 27.04.2020.
9. The accused also led evidence to establish his defence and examined one witness. DW1 is the In-charge of APMC Okhla Mandi. He brought the order of APMC marked as Ex. DW1/1 dated 12.04.2020 which is signed and verified by Rajiv Dohan posted then as Assistant Secretary-Ist, Okhla Mandi.
9.1 DW1 was cross examined by Ld. APP for the State wherein he stated that he was not posted in Okhla Mandi on Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 6 of 13 Digitally signed by NEHA BARUPAL NEHA Date:
BARUPAL 2024.07.18 16:14:31 +0530 27.04.2020 and he also did not know whether on said date odd number shops were opened or even number shops. Mr. Rajiv Dohan had not stamped the abovesaid document due to "bhool chook". He has never seen Mr. Rajiv Dohan while signing any document. He got the abovesaid document verified from Mr. Rajiv Dohan on the instructions of Deputy Secretary APMC Azadpur Sh. Mohan Lal Saini. DW1 stated that Sh. Rajiv Dohan told him that this document was issued by him. He had brought certified copy of report regarding being on official duty in the APMC Azadpur (MNI office) on 09.05.2024 which is Ex. DW1/2.
10. After DE was closed, final arguments were heard at length on behalf of both sides.
11. It was argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He argued that the accused has deliberately not complied with the lawful order of the public servant and thereby is liable for the offences charged. He contended that the actual date of offence is 27.04.2020 and the prosecution witnesses have proved the offence against the accused beyond reasonable doubt. It was also argued that the accused ran away from the spot and there was no effort from his side to follow the COVID-19 guidelines. As such, it is prayed that the accused be punished for the said offence.
12. Per contra, learned counsel for the accused contended that the State has failed to establish its case altogether. He argued that the burden was on the prosecution to prove that the order of Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 7 of 13 Digitally signed by NEHA NEHA BARUPAL BARUPAL Date: 2024.07.18 16:14:39 +0530 ACP required the accused to display the sign board as alleged but the same has not been done so. He also argued that the accused had opened his shop as per the order of APMC and had not violated any guidelines. It was also contended by ld. defence counsel the date of the incident is different in the complaint as opposed to the date stated by the prosecution witnesses in their evidence. He also argued that the complaint itself mentions two different dates of the offence and even mentions the name of the accused wrongly. He argued that the accused has been able to establish his defence in his statement under section 313 CrPC as well as through defence witness examined on his behalf. As such, it is prayed that the accused be acquitted for the said offences.
13. Before dwelling into the facts of the present case, it would be apt to discuss the legal standards required to be met by both sides. In criminal law, the burden of proving the guilt of the accused exclusively lies on the prosecution which must prove the offence charged beyond reasonable doubt. The benefit of doubt, if any, must go in favour of the accused.
14. Section 188 IPC provides punishment for disobedience to order duly promulgated by public servant despite knowledge of such order. Section 269, IPC punishes whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life. Section 270 IPC punishes whoever malignantly does any act which is, and which he knows or has reason the believe to be, likely to spread the infection of any disease Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 8 of 13 Digitally signed by NEHA BARUPAL NEHA Date:
BARUPAL 2024.07.18 16:14:48 +0530 dangerous to life. Section 3 of Epidemic Diseases Act, 1897 provides, inter alia, that any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code, 1860.
15. In the present case, the accused has been charged with, inter alia, offence under section 188 IPC for selling vegetables at his shop without any sign board for prevention of Corona (COVID-19) during lockdown in violation of order under section 144 CrPC No. 826-865/ACP/Kalkaji, New Delhi dated 14.04.2020.
16. The following essential ingredients of the offence under Section 188 IPC have been highlighted by the Division Bench of the Hon'ble High Court of Delhi in Bhoop Singh Tyagi v. State 2002 SCC OnLine Del 277 -
1) there must be an order promulgated by a public servant.
2) such public servant must be lawfully empowered to promulgate such order.
3) A person must have a knowledge of such order directing him to abstain from an act or (b) to take certain order with certain property in his possession or under his management.
4) He must disobey the order having its knowledge.
5) Such obedience must cause or tend to cause (a) obstruction, annoyance or injury or risk of it to any person lawfully employ or (b) danger to human life, health and safety."
17. Therefore, all the above-mentioned ingredients are to be proved in order to prove the commission of said offence. To determine whether the accused is liable in this case, it is pertinent to Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 9 of 13 Digitally signed by NEHA NEHA BARUPAL BARUPAL Date:
2024.07.18 16:14:56 +0530 examine the directions in the aforesaid order. The order prohibited the following acts: -
(1) Assembly of any kind for demonstrations, processions, protests etc. (2) Any gathering social /clutural /political /religious /academic/ sports /seminar /conference (3) Organization of weekly markets (except for vegetables, fruits and essential commodities), concerts, exhibitions etc. (4) Guided group tours conducted by various private tour operators (5) Any individual suspected/confirmed with COVID-19 shall take measures for prevention/treatment i.e. home quarantine/institution quarantine/ isolation or any such person shall cooperate to render assistance or comply with the direction of the surveillance personnel.
(6) Any person contravening this order shall be punishable under section 188 of Indian Penal Code.
18. In the present case, it is evident from the above that the order, the violation of which has been alleged, nowhere prohibited the accused from selling vegetables, rather it carved out an exception for selling of vegetables, fruits and essential commodities. Admittedly, as stated by PW3, during COVID-19 the Government had notified an order to run the shops pertaining to essential commodities on odd and even scheme. The accused in his defence evidence has also proved the relevant order of Agricultural Produce Marketing Committee Fruit & Vegetable Market (Sub-Yard Okhla, New Delhi-20) no. APMC/Okhla/130 dated 12.04.2020 (Ex. DW1/1) which provides that even number shops could remain open Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 10 of 13 Digitally signed by NEHA NEHA BARUPAL BARUPAL Date: 2024.07.18 16:15:05 +0530 on Tuesday, Thursday and Saturday. Although the case of the prosecution is not that the accused was not entitled to open his shop on the concerned date, the prosecution was required to prove violation of an order or regulation in order to prove the charge but it was unsuccessful in the said task. Furthermore, the abovesaid order of ACP does not reflect that the accused was under any obligation to put up a sign board for prevention of Corona (COVID-19). Thus, in the absence of proof of existence of order mandating the accused to display the sign board as alleged, the accused certainly cannot be held guilty for violation of any such order.
19. Similarly, no regulation or order under Epidemic Diseases Act, 1897 has been filed by/relied upon by the prosecution for the violation of which the accused may be convicted.
20. In the instant case, no evidence has come to light showing malicious intention of the accused, let alone higher degree of malice or evil that is required for commission of the offence under section 270 IPC which uses the words "whoever malignantly does any act". In addition, no such act has been attributed to the accused which he knew or had reason to believe would lead to spreading the infection of any disease dangerous to life. Thus, charge under section 270 IPC also remains unsubstantiated.
21. For proving the commission of offence under section 269 IPC, unlawful or negligent conduct of the accused which is, and which the accused knows or has reason to believe is likely to spread the infection of any disease dangerous to life, is required to be Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 11 of 13 Digitally signed by NEHA NEHA BARUPAL BARUPAL Date:
2024.07.18 16:15:13 +0530 proved. However, such unlawful or negligent conduct has not been proved by the documentary and oral evidence in this case. The reasons for the aforesaid finding are discussed below.
22. It is pertinent to note that there are glaring inconsistencies/weaknesses in the prosecution case, starting with the date of the alleged incident. The complaint (Ex. PW2/A) on the basis of which FIR was lodged against the accused is itself inconsistent. It mentions that the incident is of 23.04.2020 whereas at the bottom of the said complaint, the date of incident is mentioned at 27.02.2020. Complicating the matter further, the prosecution witnesses have deposed that the incident is of 27.04.2020. Therefore, it is crystal clear that there is a major doubt regarding the date of the incident itself, leading this court to doubt even the commission of the offence. The information was allegedly given vide DD no. 3A at 1:05 am on 28.04.2020 however no such DD entry has been placed on record. The complaint under section 195 CrPC mentions that the concerned officers were on patrolling duty on 28.04.2020 when they reached the shop of the accused and saw the offence. The statement of Ct. Rakesh under section 161 CrPC also mentions the date of 23.04.2020. Even the name of the accused has been incorrectly mentioned in the chargesheet.
23. It is also worth noting that there is no evidence on record in the form of photographs to show that the accused had not displayed the requisite sign board on his shop as alleged. The official(s) could have easily taken photograph of the shop when Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 12 of 13 Digitally signed by NEHA NEHA BARUPAL BARUPAL Date:
2024.07.18 16:15:23 +0530 he/they noticed that such sign board has not been displayed and they could have filed the same along with the chargesheet in this case.
24. Thus, in view of the above discussed facts and circumstances of the case, this court finds that the prosecution has failed to prove the commission of the offences by the accused on the threshold of beyond reasonable doubt. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. As the prosecution has failed to establish the essential ingredients of the alleged offence, the prosecution case does not stand on its legs.
25. On the other hand, the accused has been successful in pointing out the deficiencies in the case of the prosecution.
26. Consequently, accused Omar Farooq @ Amar is acquitted of the offences under section 188/269/270 of Indian Penal Code, 1860 and section 3 of Epidemic Diseases Act, 1897.
ORDER - ACQUITTED Pronounced in open court on 18.07.2024.
This judgment comprises of 13 signed pages.
Digitally signed by NEHA NEHA BARUPAL
BARUPAL Date:
2024.07.18
16:15:35 +0530
(NEHA BARUPAL)
JMFC - 12 South-East District,
Saket Courts, New Delhi/18.07.2024
Cr. Case No. 4442/2020 State v. Omar Farooq @ Amar Page 13 of 13